COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KAY
LORD JUSTICE WALL
| ZRINKA JANJANIN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Sean Wilken instructed for the Respondent
Hearing dates : 10 February 2004
Crown Copyright ©
Lord Justice Kay:
"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."
"…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."
"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."
"I am happy to recommend the grant of ELR. If there were ever a case of a person who is and would continue to be an asset to this country, it is this one."
"On the one side there is weighed in the scales the length of time the appellant has been here. With that goes her exemplary conduct while she has been here and the fact that she has been in gainful employment in a position of some responsibility. We also take into account but by no means do we consider it to be determinative the fact that there has been some delay on the part of the Home office in dealing both with this asylum claim and the Adjudicator's recommendation. However we would not consider that such delay is sufficiently relevant to make it determinative as it was considered to be by the Court of Appeal in the case of Shala."
The decision in Shala
"What is striking about both the decision of the IAT and that of the Secretary of State is that in each the position of the appellant has been equated with that of any normal applicant who wishes to obtain leave to enter on marriage grounds. This comes through very clearly in the passage from the IAT's determination quoted earlier in this judgment. But, as Mr Blake has rightly pointed out, the appellant's case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the United Kingdom for a variation in that leave on the grounds of his marriage. The IAT does not appear to have considered that submission, which was clearly put before it as paragraph 11 of its determination indicates. In other words, but for the remarkable delay on the part of the Home Office in dealing with his asylum claim, the appellant would not have fallen into the category where the applicable policy requires an application for leave to enter to be made from outside this country. "
"I fully except that some weight was to be attached to the decision making process to the fact that the appellant began his relationship with BF and married her while his status in this country was undetermined. This is a relevant factor, and not an unimportant one: See Abdulaziz v United Kingdom  7 EHRR 471. But the whole balancing exercise was conducted without any weight being attached to the fact that the policy being put into one side of scales would not have been applicable at all but for the delay on the part of the Home Office. While it may be uncertain when the appellant would more normally have been granted refugee status or exceptional leave to remain, it is unfair that he should suffer because of an uncertainty arising from the Home Office's failings. Nor can it be said that allowing him to apply in-country would encourage others to exploit the established procedures. To require the appellant now to leave the United Kingdom and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent, who does not appear to have reflected adequately, if at all, the significance of his departments delay in the present case."
"Much of the argument on behalf of the Secretary of State before us was on the lines that although there was indeed a genuine family life and although there would indeed be interference with it, and although indeed the family could not be expected to live in Kosovo, the interference would only be for a matter of a few months whilst the application was being dealt with by the usual channels in Kosovo. Meanwhile the rest of the family could remain here. It was, so it was said, important to go through the usual procedures but there was no reason to suppose that the application would not swiftly be granted in which case he would be back here within a few months. So the interference would only be temporary and therefore did not require much by way of justification."
"24. The present case however is distinguishable from the mass of cases because the applicant came here at a time and in circumstances where his failure to apply for a visa was accepted by the Home Office as wholly explicable and where he applied for permission on the day he arrived from Kosovo which was in the middle of a dreadful civil war. He could not have done more. In short he was, at the time that he came, a meritorious applicant for permission to remain here, at any rate for a while. It was not until more than four years later that the Home Office, after chivvying by his solicitors, got round to arranging an interview to test the genuineness of his asylum application. Automatically to apply to a person in his position a policy designed to discourage both meritorious and unmeritorious applicants from jumping the queue is a wrong approach to the difficult problem of deciding whether the interference with a persons rights under Article 8 is necessary in a democratic society.
25. As I understand it, had his application been dealt with in the appropriate time scale as it ought to have been then his application for permission to stay would in all probability have been granted. The fact that it was not was not his fault. Had that been granted, a further application to remain with his wife would also in all probability have been granted. It was during this period that the family relationship was established. These factors should have been considered by the decision taker as well as the interests of his wife and the two boys who have now found a father.
26. The difficulties in a case such as the present arise from the fact that the relevant procedures were designed to take a few months and yet they have in practice, through no fault of the applicant, taken the Home Office several years. In such circumstances one must be careful before one allows policies designed for procedures operating in different conditions to become automatically determinative of the fate of a family."
The argument advanced on behalf of the appellants in the current appeals
"Looking to the present case, in August 1999 one month after the applicant's arrival in the UK, the Secretary of State published a bulletin (2/99) giving the following guidance to IND caseworkers:
…the general presumption is that Serbs…in the war affected areas of Eastern Slavonia, Baranja and Sirmium, the Krajina and Western Slavonia will [my emphasis and it ought to be noted that subsequent versions of this bulletin replaced 'will' with 'may'] be able to substantiate a claim to asylum on the grounds of their ethnicity."
"Advice to caseworkers
- There is no 'group policy' towards Serbian asylum – seekers from Croatia and each case is determined on its own merit.
- The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the war affected area of Eastern Slovenia, Baranja and Sirmium; the Krajina and Western Slovenia, will be able to substantiate a claim to asylum on the grounds of their ethnicity.
- The general presumption will be that Serbs originating from other parts of Croatia will not be able to substantiate a claim to asylum on the grounds of ethnicity alone."
"The general presumption is that…MAY (counsel's emphasis) be able to substantiate a claim to asylum on the grounds of their ethnicity."
That bulletin had been issued originally in May 1999 but had been amended in August 1999 but it was not possible to say the precise form of the amendment and the version quoted was the August 1999 version.
"Caseworkers and presenting officers will need to be aware of the recent allowed appeal in the case of KEKUS.
At the appeal hearing representatives acting for Kekus an ethnic Serb, presented an impressive expert opinion paper on the position of ethnic Serbs in Croatia as well as an OSCE report dated May 1999. These show that ethnic Serbs are very likely to suffer persecution and discrimination based on ethnicity. Our embassy in Zagreb has confirmed that this is so, and it has also been confirmed in a more recent report dated October 1999 by the Special UN Reporter.
While not every case of an ethnic Serb will meet the convention criteria, caseworkers should be aware that the likelihood is that many ethnic Serbs will be able to make a case for asylum under the convention and each application should be considered very carefully before reaching a decision."
"I regard it to be of particular significance that the Special Adjudicator did not consider this application in the knowledge that by 4/99 the Karphammar report had received the approval and acceptance of the Secretary of State. Indeed, it is to be noted that the Karphammar report is not even referred to in the determination and reasons of the Special Adjudicator. Had it been known that subject, of course, to the absence of any concession on automatic protection, the facts as laid out in that report were to be treated as common ground between the Secretary of State and the applicant, one would have expected to see in the determination and reasons, where paragraph 10.1 presently appears, a recital that it was common ground that the Karphammar report was accurate and also some reference to 4/99"
In these circumstances Newman J concluded that the case should be remitted to the IAT which had refused permission to appeal.
"1.1 Elections for a new government took place in Croatia on 3 January 2000. As anticipated, the former right wing government, headed by the late Franjo Tudjman who died in December lost power.
1.3 …the fall of the HDZ, the former ruling party may be seen by some of the hundred thousand Croatian Serbs who are living abroad in exile as a signal that they may be able to return home.
2.1 The recently allowed case of Kekus…has highlighted the need for more up to date advice on the case of Croats of ethnic or Serb origin. A new bulletin will be issued shortly to take account of this and other changes which may occur. It is also essential to look again at the standard refusal wordings and this too is in hand."
"In an interview in February, the head of OSCE mission to Croatia suggested that he did not expect any problems with regard to the return of Serbs to Croatia. This opinion is in marked contrast to that expressed in the OSCE "expert opinion" referred to in bulletin 4/99. In view of this and all the above factors, it is most unlikely that an ethnic Serb could now substantiate a claim for asylum."
"Delays and backlogs on this scale lie at the heart of the problem. They put unnecessary pressure on the staff who have to operate the system. They are not fair to genuine applicants who face long periods of uncertainty about the outcome of their application. They make it extremely difficult to deal firmly with those who have no right to be here. Tackling these delays and backlogs is a fundamental part of modernising immigration control"
"Delivering faster decisions is crucial to the success of the overall strategy. The Government is aiming to ensure that by April 2001 most initial asylum decisions will be made within 2 months of receipt and that most appeals to adjudicators will be heard within a further four months. Both these targets reflect average process times and the Government expects that many cases will be dealt with more quickly."
"These circumstances do not apply in this particular case. As [the Home Office Presenting Officer] points out in his submissions, the appellant's position has not been prejudiced in any way by the delay."
It is submitted that there was prejudice both inherent in the uncertainty experienced by the Appellant and to the ultimate decision on the application. Shala could not properly be distinguished on the basis that there was no prejudice.
The Secretary of State's Response
(1) It was the Secretary of State's policy up until mid 1999 to grant refugee status, or at the least exceptional leave to remain to ethnic Albanians from Kosovo.
(2) The Appellant was an ethnic Albanian from Kosovo who arrived in the United Kingdom in June 1997.
(3) He was not interviewed until July 2001. By then he had been cohabiting since December 1998 with the woman he subsequently married in October 2001. She had two sons for whom he had become a father figure. He had plainly established a family life in the United Kingdom.
(4) Had his asylum application been dealt with reasonably promptly (ie before mid 1999), he would have been granted refugee status, or at the least exceptional leave to remain in accordance with the Secretary of State's policy identified in (1). He could then have applied from within the United Kingdom for permission to remain as a spouse.
(5) Accordingly, to require him now to make an application for entry to the United Kingdom from Kosovo as a spouse when the Secretary of State's delay had deprived him of the opportunity to make the application from within the United Kingdom was both unjust and a disproportionate interference with his right to respect for the family life he had established in the United Kingdom.