England and Wales Court of Appeal (Civil Division) Decisions

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
		17th December 2003

Lord Justice Latham:

1. 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 2001. He 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.
2. 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."

3. 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.
4. 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.
5. 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."

6. 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."

7. 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 persecution or infringement of his human rights in either country, and these conclusions have not been appealed.

……

21. If the respondent returns his mother would not be left without support. She is living with both of her sons, one of whom has leave to remain. Whilst the respondent's fiancée is Croatian there is no evidence before us to show that she could not obtain permission to accompany the respondent to Bosnia, either as his fiancée or, if they marry, his wife."

8. The first question that we have to determine is the scope of an appeal from the adjudicator to the Immigration Appeal Tribunal in a situation such as this. The powers of an adjudicator and the Immigration Appeal Tribunal are contained in the Immigration and Asylum Act 1999 ("The 1999 Act"). Section 65 of the 1999 Act provides:

"(1) A person who alleges than an authority has, in taking any decision under the Immigration Acts relating to that persons entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his Human Rights may appeal to an adjudicator against that decision…….

(2) For the purposes of this part …

….

(b) an authority acts in breach of a persons human rights if he acts, or fails to act in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.

(3) Sub-sections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, racially discriminated against the appellant or acted in breach of the appellant's human rights.

(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5) If the adjudicator, or the Tribunal, decides that the authority concerned

….

b) acted in breach of the appellant's human rights, the appeal may be allowed on the ground in question.

…

(7) "Authority" means –

(a) the Secretary of State;

(b) an Immigration Officer;

(c) a person responsible for the grant or refusal of any entry clearance."

9. Schedule 4 to the 1999 Act provides:

"21. (1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –

(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any Immigration Rules applicable to the case, or

(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, the discretion should have been exercised differently,

but otherwise must dismiss the appeal.

…..

(3) For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based.

….

22. (1) Subject to any requirement of the rules made under paragraph 3 as to leave to appeal, any party to an appeal ….. to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.

(2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made."

10. The relevant rule is Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000, the relevant provisions of which are as follows:

"(1) An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal

….

(7) Leave to appeal shall be granted only where –

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard"

11. The powers of the adjudicator and the Immigration Appeal Tribunal are accordingly very wide. They are both entitled to hear evidence and come to conclusions of fact which may or may not accord with the conclusions respectively of the respondent and of the adjudicator. They can accordingly correct errors of fact or of law made in the decision appealed against. As a matter of general practice, however, the Immigration Appeal Tribunal does not often hear any new evidence, and is content to accept the findings of the adjudicator as to fact unless the adjudicator was plainly wrong. The approach of the Immigration Appeal Tribunal to cases where the facts or inferences to be drawn from the facts are in issue has been considered very recently by this court in Indrakumar –v- Secretary of State for the Home Department [2003] EWCA Civ 1677. I do not consider that it is necessary for the purposes of this judgment to repeat what was said by Hale LJ in that case. She sought to reconcile what were apparently divergent or conflicting dicta as to the scope of appeals to the Immigration Appeal Tribunal in such cases. But this is not such a case.
12. This appeal is concerned with the issue of proportionality. In Edore –v- SSHD [2003] EWCA Civ 716 Simon Brown LJ accepted at paragraph 18 that the issue of proportionality is a question of judgment and balance but not of itself a matter of discretion, and in paragraph 23 eschewed its description as a question of law, which had been a concession made in the case of B –v- The Secretary of State for the Home Department [2000] Imm AR 478. In this area, different considerations apply. The decision as to whether or not the removal of a person from the United Kingdom in circumstances which would give rise to an interference with that person's private or family life is a proportionate response to the need to exercise effective immigration control raises issues of policy which are primarily the responsibility of the respondent. In Ismet Ala –v- Secretary of State for the Home Department [2003] ECH 521 (Admin) Moses J had to consider a case where the Secretary of State had decided to remove the applicant to Germany under the Dublin Convention for the determination of his asylum claim, a decision which affected the applicant's family life in this country. Having considered the case of Samaroo & Sezek –v- The Secretary of State for the Home Department [2001] UK HRR 1150, in which Dyson LJ held that the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State, as the court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentence, Moses J said:

It is true that this is not a case of deportation following a conviction (in Samaroo of drug offences). But it is a case where the Secretary of State is bound to be better placed to take a wider overall view as to what is needed to ensure that immigration control is effective."

13. He said at paragraph 47 :

"Accordingly I conclude that an adjudicator, on an appeal based on Article 8, where there is no issue of fact, is concerned only with the question of whether the Secretary of State has struck a fair balance between the need for effective immigration control and the claimant's rights under Article 8. In order to answer that question he is concerned only with the issue whether the decision of the Secretary of State is outwith the range of reasonable responses."

14. In Edore Simon Brown LJ said at paragraph 20:

"For my part I find Moses J's analysis in Ala entirely convincing and in the result conclude that in cases like the present where the essential facts are not in doubt or dispute, the adjudicator's task on a Human Rights appeal under section 65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision maker's discretion, i.e. was a decision which could reasonably be regarded as proportionate in striking a fair balance between the competing interests in play. If it was, then an adjudicator cannot characterise it as a decision "not in accordance with the law" and so, even if he would personally prefer the balance to have been struck differently (i.e. in the appellants' favour), he cannot substitute his preference for the decision in fact taken."

15. Different considerations will arise if an adjudicator or an Immigration Appeal Tribunal comes to a different conclusion as to the facts from the Secretary of State. This situation was considered by this Court in Djali –v- The Immigration Appeal Tribunal [2003] EWCA Civ 1371. In that case, as in the present, the Secretary of State had not himself taken any decision on proportionality. The appellant had not sought to rely on Article 8 until the matter came before the adjudicator. At paragraph 25, Simon Brown LJ said:

"I proceed, therefore, on the basis that the adjudicator and the IAT were entitled to reach their own independent conclusions on proportionality (assuming always that the Article 8(2) stage was reached). Could they, on this basis, reasonably conclude that the interests of immigration control did not require the appellant and family to be returned to Kosovo?"

16. This question was considered in more detail by this court in Secretary of State for the Home Department –v- The Queen on the Application of Razgar [2003] EWCA Civ 840. At paragraph 41, Dyson LJ, giving the judgment of the court said:

"Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as substantially to undermine the factual basis of the balancing exercise performed by him, it may be impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between: (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses, and in (b) deciding whether the decision was proportionate (paying deference to the Secretary of State so far as is possible). In the light of Blessing Edore, we would hold that the correct approach is (a) in all cases except where this is impossible because the factual decision of the Secretary of State is substantially undermined by the findings of the adjudicator. Where (a) is impossible, then the correct approach is in (b). But we doubt whether, in practice, the application of the two approaches will often lead to different outcomes."

17. The present appeal is one in which the facts found by the adjudicator were different from those found by the respondent. On the material before the respondent, there was no basis upon which the appellant could have established that his removal would engage Article 8. But the evidence before the adjudicator satisfied him that the appellant was living with his mother, his brother and his fiancée. He considered that that created a situation which could properly be described as family life for the purposes of Article 8, and that was not disputed by the respondent either before the Immigration Appeal Tribunal or before us. Whether that assessment was correct or not, we must accordingly determine this appeal on the basis that the appellant's removal to Bosnia would amount to interference with his family life.
18. We therefore have to determine the extent to which the Immigration Appeal Tribunal was entitled to interfere with the adjudicator's decision that removal would be a disproportionate response to the breach of immigration control. There is no doubt that if the decision on proportionality was the subject of an appeal to this court, this court could only interfere if there had been an error of law, and accordingly the question would be, as Simon Brown LJ said in Djali, whether or not the decision was one to which the tribunal could reasonably have come.
19. But for the reasons that I have already set out, the appeal to the Immigration Appeal Tribunal is not restricted to matters of law. An adjudicator does not have the same primary responsibility as the respondent for determining the policy considerations inherent in a decision relating to the enforcement of immigration control. He has what might be called a supervising responsibility and has no greater expertise than the Immigration Appeal Tribunal. Indeed the contrary might be said to be the case, bearing in mind that one of the functions of the Immigration Appeal Tribunal is to review decisions of different adjudicators in order to secure a consistency of approach. In carrying out that function, although the Tribunal would necessarily hesitate before interfering with the decision of an adjudicator, it is bound to do so if it considers that the decision is wrong. That does not mean that every decision by an adjudicator in a doubtful case must be the subject matter of an appeal to the Immigration Appeal Tribunal. Leave to appeal will only be granted in a case where it was shown to be arguable that there was an error in the way the adjudicator assessed the issue.
20. Turning then to the facts of the present appeal, was the Immigration Appeal Tribunal entitled to conclude that the adjudicator was wrong? The Tribunal concentrated on the three factors which were identified by the adjudicator as justifying his conclusion that removal was disproportionate. These were the age of the appellant, namely 27, the fact that he was liable to military service in Croatia or Bosnia, and the fact that he had no home in either Croatia or Bosnia. It seems to me that it was right to do so. It concluded that the factors were not cumulatively sufficient to justify the adjudicator's decision. It has been submitted to us on behalf of the respondent that none of them was indeed relevant. His age merely underlined the fact that he was an adult and was not dependent upon his mother or his brother other than for the emotional ties that he felt towards them both. The position of his fiancée was in any event of some concern to the Tribunal because of the lack of any evidence from her establishing the nature of their relationship beyond the fact of their engagement. His liability to military service did not add anything to the fact of separation from his family connections in this country and was therefore not relevant to a consideration of the effect on his family life of his removal from this country. The fact that he had no home in Croatia or Serbia was equally of no relevance as Article 8 does not give a right to a home. Again it added nothing to the basic argument that removal in itself constituted an interference with his family life. It follows, it is submitted, that the Immigration Appeal Tribunal itself was in error in giving some weight to each of those factors; but as any such error was in the appellant's favour that could not in any way vitiate its decision.
21. In my judgment, these submissions are correct. The correctness of the adjudicator's decision had to be judged by assessing, on the one hand, the extent of the interference with the appellant's family life by being removed, so that he could no longer live with his mother and brother, and in so far as material, his fiancée, and on the other, the need to enforce effective immigration control which the respondent, by appealing the adjudicator's decision, had indicated was the overriding consideration in this case. There was no evidence of dependence upon his brother, or upon his fiancée which could justify the conclusion that there were particular reasons why removal would have a disproportionate impact upon him. On the material before the Immigration Appeal Tribunal it was entitled to take the view that his fiancée could, if she wished, accompany him.
22. For these reasons, the appellant has not shown any error of law in the approach of the Immigration Appeal Tribunal; and accordingly I would dismiss this appeal.

Arden LJ: I agree.

Potter LJ: I also agree.

Order: Appeal dismissed. Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment)