Vujnovic v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Arden LJ,Potter LJ |
| Judgment Date | 17 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1843 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2003 |
| Docket Number | Case No: C1/2003/1316 |
[2003] EWCA Civ 1843
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 Potter
Lord Justice Latham and
Lord Justice Arden
Case No: C1/2003/1316
Mr Bruce Tattersall (instructed by Lawson Adefope, Solicitors) for the Appellant
Mr Adam Robb (instructed by the Treasury Solicitor) for the Respondent
The appellant is an orthodox Serb who was born and brought up in Croatia and is a Bosnian National. He arrived in the United Kingdom in possession of a Bosnian passport on the 16 th September 2001, together with his then fiancée Dragana Blagojevic. He claimed asylum on entry on the grounds that he was a refugee for the purposes of the Geneva Convention, and that to return him to Bosnia would breach his rights under Articles 3, 8 and 14 of the European Convention on Human Rights. The respondent refused his application by letter dated the 28 th November 200He concluded that the appellant did not have a well founded fear of persecution for Convention reasons for the purpose of the Geneva Convention, that he would not be at risk of serious ill-treatment were he to be returned to Bosnia, and he had no family life in the United Kingdom which could engage Article 8. The appellant appealed to an adjudicator who upheld the respondent's decision under the Geneva Convention and Article 3 of the European Convention on Human Rights, but allowed the appeal on the grounds that the appellant had established a family life in the United Kingdom for the purposes of Article 8 of the European Convention on Human Rights, and that it would be disproportionate to require him to return to Bosnia. The respondent appealed. The Immigration Appeal Tribunal accepted that the appellant had established a family life in the United Kingdom, but determined that it would not be disproportionate to return him to Bosnia. It refused him permission to appeal. The Article 14 complaint was not pursued by the appellant either before the adjudicator or the Immigration Appeal Tribunal.
Sedley LJ granted permission to appeal on the following grounds:
"The application raises a question about the proper deployment of the IAT's powers, sharpened perhaps by this courts decision in Edore. It may also involve consideration of what proportionality it involves. I think there is a realistic prospect of restoring the adjudicator's decision."
This appeal raises two main issues, as indicated by Sedley LJ. The first is the proper approach of the Immigration Appeal Tribunal to a decision of an adjudicator on proportionality, when the adjudicator has come to a different conclusion on the facts to the respondent. The second is the question of what factors are relevant to a decision on proportionality.
The facts are not in dispute before us. The appellant was originally of Croatian nationality. He was born and brought up in Zagreb. In 1991 his father was imprisoned, and the family were suffering from discrimination. After his father's release from prison in November 1991, the family moved to another part of Croatia, Eastern Slovenia. They continued to suffer abuse and ill treatment from neighbours and other members of the Croatian Catholic community. In January 1998, the appellant learnt that the police were looking for him because he was due to perform his military service. He managed to evade them. He managed to enter Bosnia where he was able to obtain a Bosnian Passport by registering himself as a resident of that country, but he only stayed there a matter of days. His mother and brother fled the Balkans in November 1999, and arrived in the United Kingdom on the 18 th November 1999. His brother was granted indefinite leave to remain on the 18 th April 2001. Meanwhile the appellant continued to live in Croatia, working on the land for cousins. He there met and became engaged to his fiancée.
They then decided to leave the Balkans themselves, and arrived, as I have said, in the United Kingdom on the 16 th September 2001. His asylum claim was based upon the account that he gave of the treatment that he had received at the hands of the Croats. He explained how he had obtained Bosnian Nationality and stated that he could not return there because he had no family there, nor had he ever lived there. He said that he feared return to Croatia because he did not want to serve in the Croatian Army and he would fear for his physical well being if he were returned there. He did not set out either in the statement or in the subsequent interview any reasons why it could be said that returning him to Bosnia, or indeed Croatia would affect any family life that he had in the United Kingdom. The respondent concluded that he had not established that he would be liable to persecution were he to be returned to Bosnia or indeed Croatia, which could justify a claim for asylum under the Geneva Convention, or a risk of ill treatment sufficient to amount to a breach of Article 3 of the European Convention on Human Rights were he to be returned to either country. In the reasons for refusal letter of the 28 th November 2001, the respondent continued:
"The Secretary of State has carefully considered all of your representations, but notes that you have no family in the United Kingdom. He is satisfied that the concerns that you have raised about your family life are not sufficiently serious so as to engage Article 8."
The appellant was asked to state whether there were any other reasons for staying in the United Kingdom which were not previously disclosed. The appellant gave none. Not surprisingly the respondent adhered to his decision to refuse asylum. The appellant appealed. The appeal was heard in June 2002. He provided the adjudicator with more detailed evidence about events in Croatia and Bosnia, and about his life in the United Kingdom since his arrival. He gave evidence to the adjudicator, and was cross-examined. The adjudicator considered that his evidence was credible, but upheld the respondent in so far as the respondent's decision was based upon the Geneva Convention and a breach of Article 3 of the European Convention on Human Rights. As to Article 8, he said as follows:
"12. The appellant says that he has a family life in this country with his fiancée, his mother and brother and that he has no family life elsewhere. He lives with his fiancée, his brother and his mother at 53, Tottenham Lane, London N8. Neither his mother nor his fiancée have any right at present to reside permanently in this country, but it is possible that his mother will acquire that right pursuant to paragraph 317 of HC 395, or in some other way. Although it is not for me to speculate whether either the mother or the fiancée will acquire indefinite leave to remain in the UK, I think I am entitled to consider on balance it is likely that the mother any rate, will acquire that right. The right to a family life can, of course, be exercised in this country or elsewhere. I note, however, that the appellant has no family ties outside this country. During argument at the conclusion of the evidence, it was conceded by the respondent's representative that the appellant does enjoy some elements of family life in this country. This concession, in my view, was well made and I so hold.
13. I also hold that the decision by the respondent to remove the appellant from this country pursuant to the removal directions, although lawful and made in pursuant to a legitimate aim, namely to regulate the entry into this country of asylum seekers, would amount to a disproportionate interference with the appellant's rights under Article 8. I find that the removal directions would be disproportionate, principally because of the appellant's age, his liability to do military service either in Bosnia or Croatia at some point in the future, and the fact that he has no home of any kind to return to."
The respondent appealed. By the time the appeal was heard, the appellant's mother had been granted indefinite leave to remain on the 14 th August 2002, and his fiancée had been granted indefinite leave to remain on the 16 th August 2002. The tribunal noted that as a result the appellant's position was stronger than it had been at the time of the hearing before the adjudicator. However it also noted that it had been given remarkably little evidence about the relationship between the appellant and his fiancée since they had arrived in the United Kingdom. There was no witness statement from her, and there was little information about the relationship from either the appellant, his brother or his mother. As it happens, we are now told that the relationship had broken down by the time of the Tribunal hearing. The Tribunal concluded:
"19. It was not open to the adjudicator to find that it would be disproportionate to return the respondent for the reasons he gave. His age, 27, particularly where there is no suggestion that he is anything other than a young man in good health, does not mean that he has any special need for support. He may not wish to perform military service in Croatia or Bosnia but this has little relevance to his family life in the United Kingdom. For the same reason his lack of a home in Croatia or Bosnia whilst it is likely to cause him difficulty, does not weigh heavily in the balance in relation to family life in the United Kingdom. In so far as it is relevant for us to consider his position in Bosnia are all (sic) Croatia, we take into account the fact that the adjudicator found that the respondent would not be at risk of...
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