Zrinka Janjanin v Secretary of State for the Home Department; Obrad Musanovic v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kay,Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWCA Civ 448 |
| Date | 07 April 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2003/1931 |
[2004] EWCA Civ 448
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Kay and
Lord Justice Wall
Case No: C1/2003/1931
C1/2003/0748
Ian Lewis and Philip Nathan instructed for the Appellants
Sean Wilken instructed for the Respondent
Zrinka Janjanin and Obrad Musanovic have each appealed against decisions of the Immigration Appeal Tribunal which refused appeals in respect of their claims to be entitled to remain in this country. There is no factual link between the two cases save that each of the appellants is an ethnic Serb from Croatia but each case raises similar issues relating to the application of Article 8 of the European Convention of Human Rights and they have accordingly been heard together.
Musanovic's case
Obrad Musanovic, who was born in 1974, is an ethnic Serb born in Croatia who joined the Serbian army to fight the Croatian army during the war in the former Yugoslavia. In 1991, he met his wife, Natasha, who is a dependant for the purposes of these proceedings. In 1992, he was moved from the front line to undertake kitchen duties as a result of suffering mental stress. He continued working in the kitchen until 1996. He stated that in 1997 he was attacked on 3 occasions by Croatian extremists. He suffered injuries as a result of these attacks and on the occasion of the last attack required treatment including over a 100 stitches to cuts he had received. His wife also alleged that she had been raped by two Croats on account of her ethnicity. Following these incidents he moved to Serbia where he was eventually called up to join the Serbian army in 1999. He refused so to do and he and his wife, fearing that he would be imprisoned for his refusal, left Serbia and went to Hungary. From Hungary they immediately flew to the United Kingdom where upon arrival at Heathrow airport, he claimed asylum.
His application for asylum was not determined until 27 March 2001 when he was notified of the decision to refuse leave to enter. He appealed against that decision and his appeal was rejected by the Adjudicator on 3 April 2002. The Adjudicator found Mr Musanovic to be a credible witness in the detailed evidence that he had given, which he considered was corroborated by the objective material that was before him. Notwithstanding that finding, he rejected the claim that Mr Musanovic had a well-founded fear of persecution in Croatia on a Convention ground. He made specific reference to the picture painted by the objective material before him which showed that "the situation in Croatia had changed remarkably so far as Serbs are concerned".
The Adjudicator had been invited, if he rejected the asylum claim, to make a recommendation for exceptional leave to remain in the United Kingdom. This was based upon the work which had been undertaken by both Mr Musanovic and his wife during their time in this country. From March 2000, they had both worked for a charitable organisation called "Head Start" which treated and supported those who had suffered head injuries. Initially the work was done on a voluntary basis but in May 2001, following extensive training, they were employed as support workers to continue this work. There was a forceful body of evidence assembled which spoke of the quality of the work that they had done. The Adjudicator described the work as being "good and charitable and helpful and sympathetic" so far as their patients were concerned. He therefore said:
"I do find…that the claim for extended leave to remain is established to some extent and I find that it is supported by letters before me from Head Start patients."
Mr Lewis on behalf of Mr Musanovic recognises that this expression of a view is inappropriately worded. There cannot be extended leave when there has been no formal leave granted. However, Mr Lewis submits that it is clear that the Adjudicator was intending to make a recommendation for exceptional leave to remain ("ELR") rather than extended leave.
Mr Musanovic was granted leave to appeal against the decision of the Adjudicator by the Immigration Appeal Tribunal ("IAT") and his appeal was heard on 8 January 2003. The grounds of appeal raised matters relating to the refusal of asylum. No leave was either sought or granted in respect of any Human Rights claim made by Mr Musanovic. The IAT rejected the claim in respect of asylum and no issue arises before us in respect of that part of the determination. Mr Durance, who appeared on behalf of Mr Musanovic before the IAT, nonetheless sought to rely upon Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom ("ECHR"). He submitted that Mr Musanovic's activities on behalf of Head Start equated to a private life and that it was for the Secretary of State to show that interference with that private life was proportionate to the legitimate aims of immigration control. The Tribunal having noted that leave had neither been sought nor granted to appeal in respect of the Human Rights claim nonetheless considered the merits of that claim and concluded that it was without merit. They said at paragraph 26 of their determination and reasons:
'…Whilst one would not wish in any way to belittle the excellent work undertaken by the appellant on behalf of the charity Head Start, and whilst one appreciates that the charity may have difficulty replacing the appellant and his wife, it is not the case that the charity will be forced to close as a result of the appellant's removal from the United Kingdom. Both the charity and the appellant have known that the appellant's continued presence in the United Kingdom depended on the success of his asylum application. The experience gained by him will undoubtedly assist him in obtaining employment on his return to Croatia. The appellant has only been working with Head Start since May 2001 and initially was employed as a volunteer. The Tribunal acknowledges that the clients of Head Start have built up trust and confidence in the appellant and takes this into account. However, the balancing exercise, which we are required to conduct under Article 8, leads us to attach more weight to the legitimate interests of the Immigration Authorities in controlling Immigration. We do not find that removal of the appellant from the United Kingdom is disproportionate."
Following the hearing before the IAT and one day before the determination and reasons were promulgated on 28 February 2003, the Court of Appeal handed down judgment in the case of Shala [2003] EWCA Civ 233. The grounds of appeal to this court raise arguments based on the decision in Shala to which I will return after recording the factual basis of the other appeal.
Janjanin
Miss Janjanin is also a citizen of Croatia of Serbian ethnic origin. She first came to the United Kingdom as a visitor in 1993 as she put it "to get away from the situation in Croatia". In May 1994, she obtained a visa to work as an au pair. In July 1994 she went back to Croatia.
In January 1995 she returned to this country again being granted leave to enter as an au pair. She has explained her return by saying "the situation in Croatia was terrible and it was not possible to remain there". In September 1995 she obtained a variation of leave to remain as a student. Following completion of her studies, in about September 1997, she returned once more to Croatia.
Some months later she re-entered the United Kingdom as a visitor and the following April or May obtained leave to remain as a student for one year studying computing. A year later on 11 May 1999 she applied for asylum. Her application was refused by the Secretary of State in March 2001 and she appealed.
In the meantime, in October 2000 Miss Janjanin had started work as a hospital administrator at the Charing Cross Hospital. It was not disputed that she was working in a responsible and worthwhile position within the National Health Service.
At the hearing of her appeal the Adjudicator accepted Miss Janjanin's account of her history which included the murder of a number of her relatives by the Croatian authorities, the destruction of the entirety of her mother's village, and the blowing up of the family car.
In a subsequent statement Miss Janjanin explained her reasons for coming to this country in the following way:
"I first arrived in December 1993 to get away from the situation in Croatia…I did not plan to stay. I came to visit my relatives and wait for the situation to improve. I returned to Croatia in 1994 and remained there until January 1995. The situation in Croatia was terrible and it was not possible to remain there…Between 1993 and 1999 I truly believed and hoped that I would return to live in Croatia. For me, claiming asylum meant giving up everything and for years, I did not believe I would have to do that."
Notwithstanding the Adjudicator's acceptance of her account, he concluded that there was no reasonable risk of persecution on the grounds of ethnicity and rejected her asylum claim. He then considered an argument that her return would breach her right to respect for her private life under Article 8 of the ECHR but concluded that the interests of immigration control would justify any such interference. He finally considered whether to make a recommendation for ELR based upon her lengthy stay in this country and the valuable work that she was...
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