ZS and AR (Costs of statutory review) Iraq  UKIAT 00231
Date of hearing: 4 May 2004
Date Determination notified: 23 August 2004
|ZS and AR||APPELLANT|
|Secretary of State for the Home Department||RESPONDENT|
(a) December 2000 - Appellant leaves Iraq.
(b) 27 January 2001 - Appellant arrived in the United Kingdom and claimed asylum at port of entry.
(c) 16 May 2001 – the respondent refuses asylum and issues removal directions.
(d) October 2001 – the first Adjudicator (Mr McSherry) allows the appellant's appeal on asylum, Article 2 and 3 grounds but not Article 8.
(e) 22 November 2002 - the Immigration Appeal Tribunal allows the respondent's appeal from Mr McSherry's determination and remits the appeal for a fresh hearing.
(f) 16 September 2003 – the second Adjudicator (Mrs I Montgomery) dismisses the appeal.
(g) 16 November 2003 – Vice President refuses permission to appeal.
(h) 27 January 2004 – Court of Session reverses the decision and grants permission to appeal.
"The crucial issue in this case is, as Mr Bryce indicated, whether or not the decision to remove these appellants is proportionate to the aim of preserving the integrity of immigration control".
"The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. … it would … have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessment and proportionality. We cannot think of one at present; it is simply that we cannot rule it out."
"30. The Court of Appeal in Shala held that there were circumstances in which the delay on the part of the Secretary of State in dealing with the asylum claim was an exceptional feature which took the case outside a significant area of judgment which the courts would allow him in balancing the conflicting interests of the proper maintenance of immigration control and interference with Article 8 rights. The exceptional feature in that case was that the appellant had a legitimate claim to enter because at the time he would have been the likely beneficiary of the Secretary of State's policy of granting asylum to ethnic Albanians from Kosovo but his claim had not been determined for some four years despite his chivvying the Secretary of State for an answer, which was an unreasonably long time. Had the decision been made within a reasonable time, he would have been likely to have been granted some form of leave to remain. This would have enabled him to make an in-country application for a variation in his leave to stay as a spouse and the Secretary of State's policy, of requiring those who had no leave, to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. The appellant in that case had married someone who had no connection with Kosovo, who had already had two children and who had already been granted refugee status in this country. The interference was expected to be temporary and was to be inflicted in order to maintain the integrity of the immigration control system, to encourage others to abide by it and to discourage its breach in circumstances where the asserted need to uphold the system in its vigour and harshness in that particular case, arose from the Secretary of State's failure to deal with matters in a reasonably prompt fashion."
"(a) the fact that the appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined;
(b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain; and
(c) the fact that his private or family life had only become significantly established as a result of the time spent by him in the UK where he formed a relationship. Accordingly possession of ELR, if it had been granted when it should have been, would have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship".
That is all very different from the situation in the instant case.
"The court may reserve the expenses of the application to be determined by the Tribunal".
Mr Blair argued that it is appropriate to award costs to the appellants if their appeal succeeded. In other words, the costs of the statutory review should follow the event before us. Mr Blundell argued against this because in a statutory review application the respondent is not served with the papers and has no opportunity to make submissions and is therefore arguably not a party to the application. For example, the respondent could not concede such an application. Rule 41.49 provides for only the Tribunal to be served with a copy of a petition for statutory review and Rule 41.50 provides for the petition to be determined by a single Judge without a hearing.
C P MATHER
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