COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE KEENE
| Arben Shala||Appellant|
|- and -|
|Secretary of State for the Home Department||Respondent|
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Samantha Broadfoot (instructed by Treasury Solicitor) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Keene:
"quite impossible to expect the appellant's wife and her sons to move to Kosovo and rebuild their lives there."
However, he emphasised the respondent's duty to enforce a reasonable immigration policy and he noted that the appellant had married his wife when his future in the United Kingdom was unclear. He concluded that, while there would be an interference with family life if the appellant were removed to Kosovo, the appellant would be able to apply for entry to the United Kingdom from there on the basis of his marriage. Given the need for immigration control, there would be no breach of Article 8 in his removal to Kosovo.
"places him in the same position as every other applicant in an immigration situation wishing to obtain leave to enter as the spouse of a British national or person with indefinite leave to remain in this country."
The IAT concluded that, given the objectives of immigration control, there would not be "a disproportionate breach" of Article 8 if the appellant were returned to Kosovo.
"In cases involving immigration policies and rights to family life, it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose decision is said to be incompatible."
Miss Broadfoot submits that the Secretary of State is in the best position to strike the balance between the need to maintain effective immigration control and the rights of the individual. It is important that those without leave to enter or remain should not be able to exploit the procedures so as to be able to prolong their stay in the United Kingdom by making in-country applications for such leave. As Mahmood shows, even with a subsisting marriage, a person only here on temporary admission will be required to return home to seek entry clearance, unless there are exceptional circumstances. Moreover, in the present case the appellant's wife's position in this country had been precarious until May 2000. When all the circumstances are taken into account, it cannot be said that the decision under challenge was so disproportionate that it fell outside the respondent's margin of appreciation.
"First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review insomuch as it may require attention to be directed to the relative weight accorded to interests and considerations."
But it needs to be borne in mind that what both Lord Steyn (at para 28) and Lord Cooke of Thornton (at para. 32) emphasised was that the intensity of review depends on the subject matter. In some areas of decision-making, the courts will allow the decision-maker a greater degree of deference or discretion than in others. I myself would endorse the principles enunciated by Laws LJ in International Transport Roth GmbH –v- Secretary of State for the Home Department  EWCA Civ 158;  3 WLR 344 at paras 83-87, where he sought to give guidance on how the degree of deference was to be determined in various situations. His third principle (para. 85) was that:
"greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts."
He went on to express the view, with which I concur, that the former category includes the security of the state's borders, including immigration control: para. 86.
"In the circumstances of this case, the fact is that the appellant did have a legitimate claim to enter, namely that he was at that time a refugee, and that coupled with the delay in dealing with his claim as an unaccompanied minor until the situation changed, is capable of amounting to exceptional circumstances and does in the circumstances of this case justify a decision that he is entitled to remain here because to remove him would be a breach of Article 8 of the European Convention on Human Rights."
That reference to "a legitimate claim to enter" derives from a passage in Mahmood, where at para. 23, page 318, Laws LJ said this:
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect – as it is – that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin." (Emphasis added).
The significance is that, both in Xhacka and in the present case, the appellant did have a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined. Put another way, the fact that the delay by the Home Office has deprived him of that advantage should be seen as an exceptional circumstance which takes the appellant's case out of the normal run of cases where a person with no leave to enter seeks such leave on the basis of marriage: see Mahmood, para. 26.
Lord Justice Rix :
Lord Justice Schiemann :