R MONDI ZEQAJ v IMMIGRATION APPEAL TRIBUNAL [QBD, 27/07/2004]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 27 July 2004 |
| Neutral Citation | [2004] EWHC 1919 (Admin) |
| Docket Number | CO/3057/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2004 |
Administrative Court
Mr Justice Sullivan
Representation:
Mr M S Gill QC instructed by Pearson & Winston, for the Claimant;
Mr D Beard instructed by the Treasury Solicitor, for the Respondent.
Cases referred to in the judgment:
Gashi v Secretary of State for the Home Department (United Nations Commissioner for Refugees Intervening) [1997] INLR 96
Janjanin v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 448; [2004] Imm AR 264
R v Immigration Appeal Tribunal ex parte Shen [2000] INLR 389
R (on the application of Bekteshi) v Immigration Appeal TribunalUNK [2004] EWHC 803 (Admin)
R (on the application of Mahmood) v Secretary of State for the Home Department [2001] INLR 1; [2001] Imm AR 229
R v Secretary of State for the Home Department ex parte Gashi (Besnik) [1999] Imm AR 231; [1999] INLR 276
R v Secretary of State for the Home Department ex parte RazgarUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
R v Secretary of State for the Home Department ex parte Robinson [1997] Imm AR 568; [1997] INLR 182
R v Special Adjudicator ex parte Ullah; Do v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 26; [2004] 2 AC 323; [2004] Imm AR 419; [2004] INLR 381
Secretary of State for the Home Department v AlihajdarajUNK [2004] EWCA Civ 1084
Secretary of State for the Home Department v Kacaj [2002] Imm AR 213; [2001] INLR 354
Shala v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 233; [2003] INLR 349
Legislation judicially considered:
Immigration and Asylum Appeals (Procedure) Rules 2000, Rule 18(6)
Appeals — grounds of appeal — new grounds on judicial review — whether obvious as indicated by the ‘Robinson’ test — strong prospect of success — readily discernible — Article 8 of the ECHR — delay in assessing claim
The Claimant was an ethnic Albanian from Kosovo, who arrived in the UK in June 1998 and was not interviewed until March 2002. His asylum application was refused by the Secretary of State for the Home Department that same month. Following an appeal to an Adjudicator on asylum and human rights grounds, it was held that the Claimant did not have a well-founded fear of persecution; that he had sought to exaggerate the difficulties of his physical and mental conditions; and that while his return would constitute an interference with his family life under Article 8 of the ECHR, it would not be disproportionate to return him. The Claimant applied to the Immigration Appeal Tribunal for permission to appeal. This was refused on the basis that the grounds of appeal were simply an attempt to reargue the issues which had been before the Adjudicator.
The Claimant sought judicial review of the Tribunal's decision relying on a ground not put before the Tribunal: that the Adjudicator had had no regard to the effect of the Secretary of State's delay in assessing his claim. He argued that he would have been granted refugee status if his claim had been dealt with promptly. He also contended that this new ground was ‘obvious’ in the sense indicated in R v Secretary of State for the Home Department ex parte Robinson [1997] Imm AR 568, [1997] INLR 182. The test in that case, as confirmed by later authorities, required new grounds to have a strong prospect of success and be readily discernible before Adjudicators or the Tribunal. The Claimant also sought to rely on a number of additional new grounds relating to his family life and mental health.
Held, dismissing the application for judicial review:
(1) both limbs of the Robinson test had to be satisfied: satisfying only the first limb would render nugatory Rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000, which governed the grounds to be considered by the Tribunal, and would turn judicial review proceedings into a free standing appeal by permitting the merits of the case to be reargued (para 13);
(2) if new points did arise after the conclusion of proceedings before the Tribunal, representations could be made to the Secretary of State, who would decide, in accordance with well-established policy, whether they were to be treated as a new claim: a wrongful refusal to accept a new claim could itself be judicially reviewed (para 14);
(3) this case did not satisfy either of the RobinsonENR limbs: the new ground did not have a strong prospect of success as it was not certain that the Claimant would have been granted refugee status, and not merely exceptional leave to remain for 12 months; the delay point could not have been said to be readily discernible before the Tribunal, as there had been no suggestion from the Claimant that the Adjudicator or the Tribunal should have adopted a different basis for consideration of his Article 8 claim as a result of the delay (paras 15–20);
(4) the subsidiary grounds relating to the Claimant's family life and poor mental health did not pass the Robinson test; even if they had been put before the Tribunal, in order to succeed, the case would have had to come within the category of the ‘small minority of exceptional cases’ identified by Lord Bingham in R v Secretary of State for the Home Department ex parte RazgarUNK [2004] UKHL 27: this case was not such an exceptional case (para 27).
Judgment
Mr Justice Sullivan:
Introduction
[1] This is an application for judicial review of a decision of the Immigration Appeal Tribunal dated 10th April 2003 refusing leave to appeal against the decision of an Adjudicator promulgated on 7th March 2003 refusing the claimant's appeal against the Secretary of State's decision to reject his claim for asylum.
Factual background
[2] The claimant is an ethnic Albanian from Kosovo who claims to have arrived illegally in the United Kingdom on 30th June 1998 and who claimed asylum on 3rd July 1998. He was not interviewed until 13th March 2002. By letter dated 14th March 2002, the Secretary of State rejected his claim. Further submissions that to return him to Kosovo would be in breach of his human rights were rejected in a letter dated 4th September 2002.
[3] The claimant appealed against these decisions and his appeal was heard by an Adjudicator on 17th February 2003. By this time much had changed in Kosovo and the Adjudicator's conclusion that the claimant did not have a well-founded fear of persecution were he to be returned there is not challenged. The grounds of appeal to the tribunal related to the manner in which the Adjudicator had dealt with the claimant's appeal under Article 8 of the European Convention on Human Rights. In paragraph 26 of his Determination, the Adjudicator referred to the skeleton argument that had been prepared by counsel who then appeared on the claimant's behalf:
‘Submissions were made on behalf of the appellant by [counsel]. She most helpfully presented a skeleton argument. She invited me to find that the appellant had been in the United Kingdom for over four years and had contributed significantly to the community. His condition was such that he could not safely return to Kosovo because his depression would worsen and he would be without support. There was no indication that the treatment that he required in Kosovo for his arthritis and for his stress would be available. She indicated that she would send to me a report from the Ministry of Health and Social Welfare about the situation in Kosovo. That report has now been obtained. The treatment was available to the appellant in the United Kingdom and I was invited to find that it would be unreasonable or unduly harsh to return him to the isolation of Kosovo, when he had a supportive family and girlfriend in the United Kingdom.’
Under the heading ‘Family Life’, the skeleton argument contended that the claimant had:
‘…established close personal ties with his father and his partner as well as a degree of dependency between himself and his relatives’.
[4] Much emphasis was laid on the claimant's mental health and it was contended that:
‘The appellant's claim should therefore be considered in light of the following factors underpinning the application and relevance of Article 8 in cases where there is medical evidence which submits that removal would be detrimental to the appellant's mental health/moral and physical integrity.’
Under the heading ‘Private Life’, reference was again made to the claimant's mental state and the extent of the dependency of the claimant on his father and his partner. It was submitted that the Secretary of State had failed to take into consideration the fact that there would be ‘a gross and probably permanent separation of the family’. Finally, it was suggested that the Adjudicator should make a recommendation for exceptional leave to remain on compassionate grounds, taking the medical, family and private life rights into account.
[5] Against this background it is not surprising that the Adjudicator began his consideration of whether it would unreasonable or unduly harsh to return the claimant to Kosovo with an assessment of the evidence relating to the appellant's health. He concluded (paragraph 54) that the claimant had ‘sought to exaggerate the difficulties of his physical and mental conditions.’ He dealt with the issue of family life in paragraphs 48 to 55 of his Determination as follows:
‘(48) I bear in mind also the issue of family life as enshrined in Article 8 of the Convention. I bear in mind that a structured approach should be taken in this matter. Firstly, to enquire to ask whether there is family life: secondly, if so, whether to remove the appellant would constitute an interference with it: whether such interference is lawful and finally whether it is proportionate. I bear in mind the leading case of Mahmood.
(49) So far as the appellant's relationship with the family is concerned, I accept there may indeed be interference with family life...
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