Strbac and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Longmore,Lord Justice Scott Baker |
| Judgment Date | 11 July 2005 |
| Neutral Citation | [2005] EWCA Civ 848 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2004/1662 |
| Date | 11 July 2005 |
[2005] EWCA Civ 848
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Longmore and
Lord Justice Scott Baker
Case No: C4/2004/1662
Mr Andrew Nicol QC and Mr Phillip Nathan (instructed by Messrs Sutovic & Hartigan) for the Appellant.
Mr Sean Wilken (instructed by the Treasury Solicitor) for the Respondent
INTRODUCTORY
This case was listed as an application for permission to appeal with appeal to follow if permission granted. The application is directed against the decision of the Immigration Appeal Tribunal ("the IAT") of 15 June 2004 when they dismissed the appellant's appeal against the determination of the Adjudicator of 23 December 2002. The Adjudicator in her turn had dismissed the appellant's appeal against the decision of Secretary of State made as long ago as 3 November 1999, though not notified to the appellant until 30 November 2000. The Secretary of State had rejected the appellant's asylum claim and refused him leave to enter.
The case has a somewhat convoluted procedural history. On 24 August 2004 I directed that it be listed for an oral permission hearing on or after 1 November 2004 "in relation to the Shala/Janjanin issue and the DK issue". I will explain these issues, which are named for earlier decided cases, in due course. Then after giving further directions relating to skeleton arguments, on 3 December 2004 I adjourned the permission hearing to be re-listed (with appeal to follow) after the delivery of judgment in Huang & Ors 1. That judgment, whose relevance to this application I shall of course also explain, was handed down on 1 March 2005. Thereafter I directed that the parties file further skeleton arguments dealing with the impact of the Huang decision.
We heard full argument from counsel over a day. I think it would right to treat the matter as a full appeal, and accordingly I would grant permission to appeal.
THE FACTS
It is convenient first to describe the facts. The appellant is an ethnic Serb and a national of Croatia, born on 29 November 1950. He is an Orthodox Christian. He completed his military service between February 1969 and July 1970. He was married on 3 October 1970. After his military service he and his wife both obtained employment, in his case in the manufacture of agricultural machinery and in hers in a confectionery factory. As a result of political instability in Croatia, as it was put by the IAT, they were both dismissed from their jobs, he in May 1991 and she in July 1991. On 26 June 1991 the Croatian forces attacked the village of Tenja where the appellant's wife had been born. The appellant joined the Serbian militia defending the village. On 17 September 1991 the Yugoslav army advanced to the village. I may take up the narrative from the IAT's account:
"5. In September 1991 the battle for the village ended. When the Yugoslav army commanders discovered that the
appellant had served in a tank regiment during his military service, he was conscripted into their forces. He served as a private in a tank regiment, although he had command of a four-man tank. When the Serbian army withdrew on 20 May 1993, the appellant was promoted to lieutenant and was left in command of 50 men and 10 tanks. He remained in that position until he was demobilised under the Dayton Agreement in May 1995.
6. The appellant feared for his family's safety, from Croatians who were returning to his village. On 26 January 1998 he took the family to Norway where he claimed asylum. During their stay in Norway he discovered that his paternal cousin, Cerdo Strbac, a colonel in the Yugoslav army who had been in command of a brigade, had been tried in absentia for war crimes and sentenced to 20 years imprisonment. Following refusal of his asylum claim, the appellant and his family returned to Croatia on 11 October 1998. Although the appellant had owned a flat in Osijek, this had been taken over by a Croatian family in 1991. Attempts to reclaim the flat were unsuccessful. He and his family had to live with his widowed sister-in-law, Branka, in Tenja.
7. He was unable to find work in Osijek. He considered moving to the Federal Republic of Yugoslavia, particularly since his daughter, married to a Serbian citizen, lived in Belgrade, but although Croatian Serbs were allowed to travel in and out of the country, they were not allowed to settle there. He decided that there was no future for his family [in] Croatia. In January 1999 he and his family travelled by car to Zagreb airport and from there came to the United Kingdom.
8. He last spoke to his sister-in-law Branka in January 2002. She told him that his cousin was now in prison in Croatia. Although he had not been involved in any war crimes, he believed that this would not stop the Croatian authorities from blaming him for the deaths of Croatian citizens. He feared that if returned to Croatia he would be arrested and probably imprisoned, although not for such a long period as his cousin."
The appellant arrived in the United Kingdom on 28 January 1999, accompanied by his wife, and claimed asylum on arrival.
THE DETERMINATION OF THE IAT: SHALA, THE BULLETINS, AND DK
As the IAT noted 2 the Adjudicator found the appellant to be a credible and compelling witness and accepted his account. Before the Adjudicator the appellant's case was put firmly on asylum grounds. The Adjudicator summarised it as follows:
"27. The appellant's claim, in short, is this: from 1991 – 1995 he served with the Serbian militia and later the Yugoslav army. He was in charge of 10 tanks with immense destructive force. If he returns to Eastern Slavonia he may be accused of war crimes. In any event, the authorities and the local Croat population will persecute him because of his wartime activities and because of his relationship with his cousin, who has already been convicted of war crimes. "
The Adjudicator rejected this claim, and associated claims based on Articles 3 and 8 of the European Convention on Human Rights ("ECHR").
However before the IAT the appellant advanced a fresh case, by way of variation of the grounds first put forward, based on the decision of this court in Shala 3. It is convenient now to address this decision, in which the judgment was handed down on 27 February 2003. Though it started life as an asylum claim, for the purposes of the appeal it was an Article 8 case. As is well known ECHR Article 8 provides:
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, or public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Given the argument that is to come, it is convenient also at this stage to set out ECHR Articles 3 and 14:
"Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
…
Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The appellant in Shala was an ethnic Albanian from Kosovo. He arrived in the United Kingdom on 25 June 1997 and claimed asylum the same day. But nothing happened for a long time. His solicitors wrote to the Home Office in June 2001. He was interviewed on 17 July 2001, and his claim was refused by letter from the Home Office dated 25 July 2001. By then he had been in the United Kingdom for just over four years. In October 1998 he had met a woman living here, a Czech national with two sons by an earlier relationship. They lived together from December 1998. They married in October 2001. The next month, November 2001, the appellant's appeal was dismissed by the Adjudicator. The appeal had been run not only on asylum grounds but also in reliance on Article 8. The appellant appealed to the IAT, again relying on Article 8 and the interference with his family life that would be perpetrated if he were returned to Kosovo, where his wife and stepsons could not sensibly be expected to go. The IAT held that there would not be a "disproportionate breach" of the appellant's rights under Article 8 if he were returned to Kosovo. In this court it was made plain that the case turned on the Article 8 claim, the asylum arguments having been "overtaken by events". It was accepted that the appellant's removal would interfere with his right to respect for his family life under Article 8(1). The question was whether his removal would on the facts be proportionate, that is to say, whether it would strike a fair balance between the Article 8 right and the legitimate aim of immigration control. In judging that issue the court laid particular emphasis on the effect, in the circumstances of the case, of the passage of time. Keene LJ said this:
"14… [T]he appellant's case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the United Kingdom for a...
To continue reading
Request your trial
-
HB v Secretary of State for the Home Department
...and Huang. 17 17. The jurisprudence of Huang did however come together with the problem of delay in Strbac v S [2005] EWCA Civ 828; [2005] Imm AR 504. S was an ethnic Serb who was a citizen of Croatia, who made an unsuccessful application for asylum. Relying on Shala, he claimed article 8......
-
Upper Tribunal (Immigration and asylum chamber), 2006-08-23, [2006] UKAIT 70 (WK (Article 8, Expulsion cases, Review of case-law))
...such factors is how special they have to be. Delay on its own, albeit always a relevant factor, is not a determinative factor (Strabac [2005] EWCA Civ 848; Carnwath LJ, Akaeke [2005] EWCA Civ 947; Janosevic v Secretary of State for the Home Department [2005] EWCA Civ 1711). Conversely, fact......
-
Ye Hung Wu For Judicial Review Of A Decision By The Secretary Of State For The Home Department
...8 - Shala - Delay) Serbia and Montenegro SG [2004] UKIAT00016. She also referred to Strbac v Secretary of State for the Home Department [2005] Imm AR 504. Discussion The first argument [21] In terms of section 10(1)(a) of the Immigration and Asylum Act 1999, a person who is not a British ci......
-
Upper Tribunal (Immigration and asylum chamber), 2023-06-26, HU/16484/2017
...passages are set out at [13]-[16] of Lord Bingham’s Opinion: “Delay 13. In Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, [2005] Imm AR 504, para 25, counsel for the applicant was understood to contend, in effect, that if the decision on an application for leave to......