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 |
[2004] EWHC 1919 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Sullivan
CO/3057/2003
MR M S GILL QC (instructed by Pearson & Winston) appeared on behalf of the CLAIMANT
MR D BEARD (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Introduction
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
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.
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".
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.
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 in that regard. His father has indefinite leave to remain and, although the status of his mother is yet uncertain, it would be surprising if her status did not follow that of her husband. Different considerations may of course apply to the siblings. It is to be noted that the appellant came to the United Kingdom at a different time from his parents and other siblings. He does have the experience of living apart from them.
(50) A balance has to be struck between the interests of the appellant and his family and that of the community and the need to secure effective immigration control. I say the family with some reservations because it is clear from the authorities that it is primarily the interests of the appellant that would have to be considered rather than the interests of any third party. For these reasons which I have already indicated I do not find that the appellant has the need for the degree of support which he claims that he has by reason of his illness. No evidence has been adduced as to the extent of his arthritis nor indeed as to his involvement with medication over the long term.
(51) Mahmood recognises that a degree of hardship may inevitably result in the removal of an appellant. Parties do not have the right to choose where they reside. Whether or not there are any insurmountable obstacles to members of the family joining the appellant in Kosovo is a relevant matter to be considered, although generally speaking that would be in the context of a marriage. Significantly, no mention of marriage was made in the course of the evidence of Miss Maclean to me. She indicated that it was the future intention to live together. No insurmountable obstacles to the parties living together in Kosovo have been advanced to me. Equally, were the parties to marry, the option of making proper application for entry clearance would be available to the appellant once he has returned to Kosovo.
(52) [Deals with the claimant's medical condition].
(53) I recognise of course that it would be more comfortable and convenient for the appellant to remain in the United Kingdom but such is perhaps not the true test to be applied in these cases. I bear in mind the recent decision in the Court of Appeal in Ullah which indicated that if the risk did not reach the degree as envisaged in Article 3 of the European Convention of Human Rights it is doubtful that any of the other Articles would succeed.
(54) Looking at the situation of the appellant both in the context of Ullah and also within the context of Mahmood I find that it would not be disproportionate in all the circumstances to return the appellant to Kosovo. I make it clear that I find that he has sought to exaggerate the difficulties of his physical and mental conditions in the circumstances, therefore, the appellant's appeal in relation to asylum is dismissed. His appeal in relation to his human rights is also dismissed.
(55) I bear in mind that it has taken a number of years for the appellant's appeal to be heard. There is nothing to indicate that such a delay was attributable to him. I bear in mind that the other members of the family are being considered in relation to their status and situation. Although it is not appropriate for me to make any recommendation in the circumstances of this case, it may be that a holistic approach to his situation and status might be the only reasonable one to take by the Secretary of State, before implementing any decision to remove."
The grounds of appeal settled by counsel contended that the Adjudicator had:
"(1) Failed to consider that the appellant's removal to Kosovo would be a complete bar to the continuation of the appellant's family life, particularly failing to properly consider:
(a) That the appellant's father has been granted asylum status and that his mother and siblings, if granted asylum status, would be issued passports that did not permit them to travel to Kosovo.
(b) That the appellant would have to make an application for leave to enter to marry, or for a fiancee visa in order to continue his relationship with his girlfriend.
(c) That the appellant himself would not be likely to secure employment in Kosovo and would not be able to afford to travel to the UK to pursue or continue his family life with his parents, siblings or girlfriend.
(2) In failing to consider that removal would constitute a complete bar to the continuation of the appellant's family life failed to properly consider the issue of proportionality and proper immigration control."
The Tribunal's response to these grounds was as follows:
"There is no merit in the grounds of application. The grounds of application amount to no more than a...
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