Shala v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Rix,Lord Justice Schiemann |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] EWCA Civ 233 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1 2002/2059 |
| Date | 27 February 2003 |
[2003] EWCA Civ 233
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL
TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Rix and
Lord Justice Keene
Case No: C1 2002/2059
Nicholas Blake QC & Rafeef Dajani (instructed by Fitzgrahams, St Leonards on Sea TN37 6PH) for the Appellant
Samantha Broadfoot (instructed by Treasury Solicitor) for the Respondent
This case raises the issue of whether the Immigration Appeal Tribunal ("IAT") was entitled to reject an appeal brought under section 65 of the Immigration and Asylum Act 1999 ("the 1999Act") on the ground that the interference with the appellant's right to respect for his family life, an interference involved in returning him to Kosovo, was proportionate and justified under Article 8(2) of the European Convention on Human Rights ("ECHR"). The matter came before this court as an adjourned application for permission to appeal from the decision of the IAT. We granted that application during the hearing and the case therefore comes to be dealt with as a substantive appeal.
The appellant, who is now aged 27 years, is a citizen of the Federal Republic of Yugoslavia. He is an ethnic Albanian from Kosovo. He arrived in the United Kingdom by lorry on 25 June 1997 and claimed asylum the same day. Nothing was then done about his asylum claim for some time. Eventually, his solicitors wrote to the Home Office in June 2001, requesting information about his current status. That led to him being interviewed on 17 July 2001 and to a letter from the respondent dated 25 July 2001 refusing his claim. In the letter, the respondent dealt not only with the application for asylum but also, albeit briefly, with the appellant's position under the ECHR. The letter stated that the threat of persecution in Kosovo had been removed with the establishment of an international peacekeeping force and, on the human rights aspect, it concluded that the United Kingdom's obligations under the ECHR did not justify allowing him to remain in this country.
An appeal against that decision was dismissed by an adjudicator in November 2001. The adjudicator concluded that the appellant would not be at risk if returned to Kosovo and consequently the asylum appeal failed. But there was also a human rights appeal under section 65 of the 1999 Act, relying upon Article 8 of the ECHR. That appeal arose in the following way.
Although technically the appellant had not been granted leave to enter the United Kingdom, he had been granted "temporary admission" to this country pending the determination of his asylum claim. During the period of just over 4 years between his claim and the respondent's decision on it, the appellant had met a woman, BF, a Czech national who was also an asylum seeker. They first met in October 1998 and in December 1998 they began cohabiting. She had two sons by a previous relationship, and she and her sons were granted refugee status in May 2000. The appellant was still living with BF and her sons at the date of the hearing before the adjudicator, having done so for about 3 years by then. At his interview in July 2001 he spoke of his intention of marrying BF and he explained that they had not married by then because the Home Office might have thought that he had done so for personal advantage. In fact, he and BF married in October 2001.
BF herself gave evidence before the adjudicator, describing the appellant as being like a father to her sons. She had never been to Kosovo and spoke no Albanian. She had been in the United Kingdom since October 1997 and her sons were settled here.
The adjudicator seems to have accepted her evidence. He accepted that the appellant was a devoted husband and a very good stepfather. He also found that it was
"quite impossible to expect the appellant's wife and her sons to move to Kosovo and rebuild their lives there."
However, he emphasised the respondent's duty to enforce a reasonable immigration policy and he noted that the appellant had married his wife when his future in the United Kingdom was unclear. He concluded that, while there would be an interference with family life if the appellant were removed to Kosovo, the appellant would be able to apply for entry to the United Kingdom from there on the basis of his marriage. Given the need for immigration control, there would be no breach of Article 8 in his removal to Kosovo.
The appellant appealed to the IAT. It was argued that it was unfair and unreasonable to apply to the appellant the immigration control policy applicable to those without leave to enter when the respondent had not taken any steps for over 4 years to process his asylum claim. It was in particular contended that the adjudicator had not properly dealt with the issue of proportionality when considering the human rights appeal in relation to Article 8. The IAT in its determination referred to a number of decisions, including that of this court in R. (on the application of Mahmood) –v—Secretary f State for the Home Department [2001] UKHRR 30 It noted that, at the time when the respondent made his decision, the appellant was unmarried and it could not be said with any degree of certainty that the relationship with BF would develop into a strong family life. The appellant would be able to lodge an application with the United Kingdom Immigration Authorities in Kosovo, which
"places him in the same position as every other applicant in an immigration situation wishing to obtain leave to enter as the spouse of a British national or person with indefinite leave to remain in this country."
The IAT concluded that, given the objectives of immigration control, there would not be "a disproportionate breach" of Article 8 if the appellant were returned to Kosovo.
That conclusion is now challenged by the appellant. On his behalf, Mr Blake Q.C., emphasises that the adjudicator had found in effect that there existed in this case a genuine family life. Moreover, he had also found that that family life could not realistically be enjoyed in Kosovo, because it was impossible to expect BF and her sons to move there. Consequently it is only in this country that such a family life could be maintained. The balance struck by the IAT had therefore attached considerable weight to the appellant's ability to apply from Kosovo for entry as the spouse of BF, but in so doing the IAT had ignored the difficulties which the appellant would face in Kosovo, and seems to have left out of account the evidence that his home there had been destroyed, his parents had left and his prospects of earning the necessary money in Kosovo for a return to this country were very uncertain. There could be no confidence that the separation of the appellant from BF and her sons would be a short one.
It is also submitted that the appellant should not have been treated by the IAT as if he were merely yet another spouse seeking leave to enter. The respondent's delay in dealing with the appellant's asylum application had meant that the appellant had been physically in this country for over 4 years before any decision was made, a period of such length that it is not surprising that he had formed an enduring relationship. Yet because of the delay he was treated as not having entered the United Kingdom but as merely having temporary admission. Had his application been dealt with reasonable promptness, he would as a refugee from Kosovo been granted refugee status or at least exceptional leave to remain. This was the respondent's policy up until mid – 1999 as the decision letter in this case shows. In that case the appellant would not have been required to leave this country and to apply from Kosovo but could have made his application for a variation in his leave from within the United Kingdom. There would then have been no interference with his family life. The delay on the respondent's part in dealing with his asylum claim has disadvantaged the appellant and rendered the decision to remove him disproportionate.
On behalf of the respondent, it is contended that the 4 years delay does not render the interference with the appellant's family life so disproportionate as to take the decision outside the discretionary area of judgment accorded by the courts to the respondent. As was said in Secretary of State for the Home Department –v—Isiko [2001] Imm.AR 291 at para. 31(1),
"In cases involving immigration policies and rights to family life, it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will...
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