England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

		C1/2003/0748 Royal Courts of Justice Strand, London, WC2A 2LL
		7 April 2004

Lord Justice Kay:

1. 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

2. 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.
3. 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".
4. 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."

5. 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.
6. 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."

7. 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

8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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."

14. 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 by then doing. He made a clear recommendation saying:

"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."

15. Miss Janjanin sought leave to appeal to the IAT but was refused. However the refusal was quashed by the High Court and leave was subsequently granted. At the hearing of the appeal before the IAT it was acknowledged that the asylum appeal must fail. A suggestion that Article 3 of ECHR was engaged was also rejected by the IAT. No appeal is pursued against those decisions. The principal argument before the IAT related to her Article 8 claim.
16. By that date this court's decision in Shala was available and the argument centred on that decision. The IAT accepted that returning Miss Janjanin to Croatia would be an interference with her private and family life and that the question to be determined was whether such interference would be proportionate. They explained the considerations in the following way:

"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."

17. Having carried out the balancing exercise the IAT concluded that it would not be disproportionate for the Secretary of State to exercise his discretion and return her to Croatia. It is against this aspect of the decision that Miss Janjanin appeals.

The decision in Shala

18. These summaries of the background to each appeal make it clear that at the heart of the consideration of the appeals to this court lies the decision in Shala and it perhaps sensible to refer in detail to that decision before going on to consider the arguments that have been deployed before us.
19. Mr Shala was an ethnic Albanian from Kosovo who came to the United Kingdom in June 1997 and immediately sought asylum. Nothing was done about his claim for some time and in June 2001 his solicitors sought information about his current status. As a result he was interviewed and his claim was refused because the threat of persecution in Kosovo had been removed. An appeal against both the refusal of asylum and on Human Rights grounds was dismissed by the Adjudicator in November 2001.
20. During the period of just over 4 years between the claim and the decision to refuse his asylum application, Mr Shala had met and started co-habiting with a Czech-National who subsequently was granted asylum, together with her two sons of a previous relationship. In October 2001, the couple had married, the relationship having by then continued for 3 years. The Human Rights appeal was based upon the disruption to family life which was said to be in breach of Article 8 of the ECHR if Mr Shala was required to leave the country and apply from outside the country for leave to re-join his wife and his step-children. Mr Shala appealed to the IAT which concluded that given the objectives of immigration control, there would not be a "disproportionate breach" of Article 8 if Mr Shala was returned to Kosovo.
21. The Court of Appeal in Shala accepted that his return to Kosovo would necessarily involve a disruption to his family life. Equally it was accepted that the decision had been made in pursuance of the legitimate objective of the maintenance of control over immigration. Thus the issue was whether the decision met the requirement of proportionality.
22. In giving the first judgment, Keene LJ said at paragraph 14:

"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. "

23. At paragraph 16, he continued:

"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 [1985] 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."

24. Schiemann LJ in his judgment at paragraph 20 explained the reasoning of the Secretary of State:

"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."

25. At paragraphs 24-26 Schiemann LJ explained why he reached the same conclusion as Keene LJ:

"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."

26. Rix LJ agreed with both the judgments.

The argument advanced on behalf of the appellants in the current appeals

27. The argument advanced on behalf of the appellants was that if there was a real likelihood that they would have benefited from protection by the grant of some form of leave to enter or remain but that they did not do so by reason of the administrative delay in the processing of their claim for protection, then that circumstance constituted a significant favourable factor in the consideration of any proportionality exercise under Article 8. It is said that this proposition is consistent with the ratio in Shala. In this case, unlike in Shala, it is however not accepted by the Secretary of State that either of the appellants would have been likely to have been granted "some form of leave to enter or remain" and therefore it has been necessary on behalf of the appellants to advance a case to make good this proposition that is fundamental to their argument. Initially this was done by reference to bulletins issued by the Country Information Policy Unit at the Home Office ("CIPU"). Reliance was placed on what was said to be the wording of bulletin 2/99 but it was made clear that "the country situation continued to be such that they were both very likely to have made out their claims to be entitled to some form of protection for some considerable period after the issue of subsequent bulletins".
28. At the hearing of Mr Musanovic's appeal before the IAT (which preceded Shala), there was no argument advanced along the lines which are now to be considered and hence no question of producing any evidence of the contents of any bulletin. In the grounds of appeal to this court the assertion was made:

"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."

29. In Miss Janjanin's appeal to the IAT, the argument pursuant to Shala was advanced. Reference was made to the bulletin 2/99 in the skeleton argument placed before the IAT. The bulletin was said to be in the terms set out in the preceding paragraph. In the grounds and the original skeleton argument for the appeal to this court, there was no reference to the bulletin, although at some point in time 2 pages were added to the appellant's bundle as pages 46a-b which were described in the revised index as "policy 2/99 (original)". The pages bear a fax date of 13 October 2003 and also an earlier date of 12 July 2000. The document is not complete being pages 11 and 12 of a longer document and does not in any way give any indication of its origin.
30. At paragraph 10.6 the document provides:

"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."

31. When the matter came before this court there was no application to rely on this additional evidence and no explanation as to the source of the document. We allowed counsel to refer to these documents and others in his submissions without ruling as to whether we would admit the fresh evidence at that stage.
32. Notwithstanding the lack of an application to rely on fresh evidence, Mr Wilken on behalf of the Secretary of State in his skeleton argument dealt with bulletin 2/99. He indicated that the Secretary of State had checked all bulletins that were formally issued by him and the second bullet point at paragraph 10.6 in bulletin 2/99 read:

"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.

33. The attention of the court was also drawn to subsequent bulletins. Bulletin 4/99 dated 25 November 1999 included:

"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."

34. The impact of Bulletin 4/99 was considered by Newman J in R (Vuckovic v Immigration Appeal Tribunal (unreported, 18 December 2000 CO/3021/2000). In that case the court was considering an application for judicial review by a Croatian National. His application for asylum had been determined in September 1999. Between that date and the date of his appeal to an adjudicator Bulletin 4/99 had been issued. The Home Office Presenting Officer who conducted the appeal on behalf of the Secretary of State had, however, made no mention of Bulletin 4/99 at the hearing. Mr Vuckovic had not been present and was not represented. The application for judicial review considered whether the material that was placed before the adjudicator presented the same picture as that available from Bulletin 4/99. Newman J concluded that the omission to mention Bulletin 4/99 meant that there had been "unfairness to which this claim has been treated". He said at paragraph 12 of his judgment:

"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.

35. The next relevant bulletin after Bulletin 4/99, Bulletin 1/00 dated 11 January 2000 pointed out:

"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.

Serbs

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."

36. We also have before us bulletin 3/00 dated 10 April 2000 which at paragraph 7 says:

"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."

37. Mr Lewis on behalf of each appellant says in terms that the appellants have no reason to doubt, and are not in a position to dispute, the respondent's assertion that there was never an official version of the bulletin that used the word 'will' as opposed to 'may' in Bulletin 2/99.
38. It seems to me that the court must therefore conclude, contrary to the cases as advanced when permission was granted to appeal, that the bulletins were in the terms produced by the Secretary of State at the relevant times.
39. In Miss Janjanin's case there was a further issue raised as to the applicability of bulletin 2/99. The Secretary of State contended that Miss Janjanin did not come from the areas referred to in the second bullet point to paragraph 10.6. On behalf of Miss Janjanin that is accepted to be so but it is contended she was from an area close to the former front line and that the distance ought not to have been a decisive factor in her asylum application.
40. In addition to reliance on the bulletins an attempt was made at a very late stage to rely upon statistical information as to the outcome of applications made by those coming from Croatia. Tables were placed before us that show statistical information about such applications, once again without any proper application to rely on the fresh evidence. The tables which the appellant's solicitors sought to rely upon had in relation to a number of the relevant months "N/A" included within the statistics. We were invited to infer that there must have been a policy of suspending decision making during the relevant months.
41. Although we were disturbed by this late reliance on such material and were minded not to admit it, we thought it essential that we should at least have the response of the Secretary of State to this material. At commendably short notice we were supplied with a witness statement from Nicholas Carlyle of CIPU. That statement confirmed the matters relating to the bulletin 2/99 which had been asserted by Mr Wilken on behalf of the Secretary of State. It then dealt with the recording of "N/A" in the statistics between May 1999 and April 2000. He was able to provide the information that it had resulted from a change in the Home Office practice for the recording of statistics. Significantly it had happened in relation to all countries and not simply in relation to Croatia. Because of changes introduced, it was found that monthly statistics were becoming inaccurate. Mr Carlyle had also been able to trace more accurate information for the relevant period. These showed that of 235 decisions made in respect of those from Croatia, 170 had been refused during 1999. A further 45 had only been granted ELR under pragmatic measures aimed at reducing the pre-1996 asylum backlog. In January 2000, 5 out of 160 applications decided resulted in the grant of asylum, in February 5 out of 155 and in March 5 out of 300 (all the figures being recorded to the nearest 5).
42. Since we have before us information upon which the Secretary of State has been able to comment, notwithstanding the lack of proper application to rely upon additional further evidence, it seems to me that the court can and should have regard to all the further material but that that material does little or nothing to advance the case of the appellants and indeed may be seen to contradict it to an extent.
43. Mr Lewis contends that if the material before the court had been before the IAT, it would have led to the conclusion that if the application had been determined within a reasonable period of time, either asylum would have been granted or at the very least they would have been granted ELR. Because of the changing picture over the 12 months following the application it seemed necessary to establish precisely when he was arguing that the applications would have been determined favourably to the appellants. Mr Lewis contended that they ought reasonably to have been decided within 6 months of the asylum application in each case. That would mean in the case of Mr Musanovic that it should have been determined between 13 July 1999 and 13 January 2000; in the case of Miss Janjanin between 11 May 1999 and 11 November 1999. In support of his submission that the applications should have been determined within 6 months of being made, Mr Lewis placed reliance on the Government White Paper of 27 July 1998 "Fairer, Faster, Firmer". He drew our attention to various passages in the paper but particularly paragraph 3.3 of Chapter 3:

"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"

44. Mr Lewis also referred to paragraph 8.9, although he recognised that the relevant period was well before the target date to which reference is made of April 2001:

"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."

45. It is not the contention of either appellant that the delay in their cases was of itself favourably determinative of their case but it is submitted that the fact that as a result of the delay the appellants had lost the opportunity "of likely being recognised as a refugee or likely being granted ELR" was an exceptional circumstance in any assessment of proportionality in a claim under Article 8 of the E.C.H.R.
46. In Mr Musanovic's case, Mr Lewis contends that the prejudice caused by the delay in processing his asylum claim both in terms of the uncertainty that it produced for the appellant and his wife and in terms of prejudice to the ultimate decision on his application were powerful factors to be considered. When taken into account against the background of the history of the appellant and his wife and against his and his wife's circumstances in the United Kingdom specifically but not exclusively their work with Head Start and the recommendation of the adjudicator in favour of "extended" leaved to remain, it is submitted that the court should find that the appellant's removal from the United Kingdom would be disproportionate interference with his Article 8 rights.
47. In Miss Janjanin's case, it is submitted that whilst the IAT had considered the delay in processing the asylum claim, it fell into error in stating that there was no prejudice to the Appellant by reason of the delay saying:

"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.

48. Alternatively it is submitted that the IAT failed to take into account the legitimacy of Miss Janjanin's claim and the likelihood that it would have been granted if dealt with in reasonable time. The case was thus indistinguishable from Shala. In all the circumstances, in particular in the light of her immigration history, the delay in processing her asylum claim and the consequences for her of this delay, her circumstances in the United Kingdom specifically but not exclusively her residence and her work in the NHS, and the strong recommendation of the adjudicator in favour of ELR, it is submitted that the court should find that the appellant's removal would be a disproportionate inference with her Article 8 rights.

The Secretary of State's Response

49. On behalf of the Secretary of State, Mr Wilken, argues that whilst delay in the Shala sense may be a relevant factor in weighing the balance under Article 8(2) and may, in unusual cases be the determining factor (as was the case in Shala), it cannot of itself be the determining factor in all cases under Article 8(2) since the decision is necessarily one that is fact sensitive. He submits that in Shala the exceptional feature was that but for the delay, Shala would have been granted either asylum or ELR since there was a clear policy at the relevant time to grant at least ELR to Kosovo's. If Shala had been granted asylum or ELR in accordance with this policy there would have been no need for him to leave the country in order to make an out of country application to vary his leave on marriage. Accordingly it was disproportionate to make Shala return to Kosovo to make the application when but for the failings of the immigration system, there would not have been a need for him to disrupt his family life in this way when it was conceded that "interference would only be temporary" and "he would be back here within a few months" (see the judgment of Schiemann LJ at paragraph 20).
50. Mr Wilken submits that in these cases the evidence does not establish that there was a likelihood that either of these appellants would have been granted asylum or at the very least ELR if their application had been determined within a reasonable period of time. He submits that the period of 6 months selected by Mr Lewis is one without any proper foundation and that there was no obligation upon the Secretary of State to determine an application within any fixed period of time. The paper "Firmer, Faster, Fairer" set out for discussion proposals to try to reduce the time taken for decisions but in no sense committed the Secretary of State to any time limit. In so far as targets were mentioned they were not envisaged as operating until a substantial time after this application was made. In any event even within the 6 month periods referred to there was no evidence to establish any pattern that applicants such as the appellants were likely to be granted asylum.
51. Mr Musanovic's claim was made on 13 July 1999. Until issuing of Bulletin 4/99 on 25 November 1999 the current Bulletin made clear that there was no group policy towards Serbian asylum-seekers from Croatia and each case has to be determined on its merits. There was a presumption that Serbs from the named war-affected areas "may" be able to substantiate a claim but it went no further than this. If, therefore the claim had been determined in this period of 4 1/2 months, it could not be said to be likely that the claim would have been determined favourably to Mr Musanovic. After November 1999 Bulletin 4/99 suggested that there was "a likelihood that many ethnic Serbs in Croatia will be able to make a case for asylum under the Convention" but it was pointed out that this would not apply to every case. 6 months later Bulletin 1/00 was suggesting that the position had possibly changed since Bulletin 4/99. By April 2000, Bulletin 3/00 gave advice that it was "most unlikely that ethnic Serbs could" substantiate a claim for asylum.
52. Thus even taking Mr Lewis period of 6 months for the deciding of a claim there was at most a period of 6 weeks when there was anything approaching a likelihood that a claim would succeed and even then each case had to be examined individually.
53. Miss Janjanin's claim was made in May 1999 and if therefore her claim should have been determined within 6 months, it should have been determined before Bulletin 4/99 even came into force. Miss Janjanin had the further difficulty that she did not come from the relevant war-affected areas and thus the presumption would have been that she "may not be able" to substantiate a claim. She would be left to argue that whilst not strictly within the named areas, she should nonetheless be treated as if she was from such an area because of the proximity her family have to such an area.
54. Thus it is submitted that factually neither appellant can establish that if their claims had been determined promptly a favourable outcome would have resulted and the case of Shala accordingly has no relevance to their claims.
55. Further neither of these appellants have any other right to remain in the United Kingdom other than the alleged breach of Article 8 on removal. They are not in the same position as Mr Shala who it was accepted for quite distinct reasons would within a short period of time have been granted a right to be in the United Kingdom as a result of his marriage. Whilst the element of delay and its consequences were held to outweigh any argument against what otherwise might be seen as queue-jumping, the fact that at some stage when their application might have been determined, the appellants might have had some prospect of a favourable outcome, cannot in itself tip the balance in their favour and create a right to stay permanently which they otherwise would not enjoy.

Conclusion

56. For my part I accept on the facts of each of these two cases the arguments advanced by Mr Wilken. In the case of Miss Janjanin, I am not persuaded that there is any evidence that would justify a conclusion that she was likely to have been granted at least ELR if her case had been determined within the period that is now suggested as constituting a reasonable period for such a determination. The relevant Bulletin was worded as "may" and the foundation of her case tumbles when it is accepted that the word "will" was not used as was suggested. The geographical problem was a further very substantial hurdle to overcome and the statistical information when explained suggests that only a relatively small proportion of similar claims were succeeding at that date. Her case is factually distinguishable from Shala in this respect quite apart from any other consideration. This was the only point upon which she was granted leave to appeal and in my judgment this ground fails because the facts necessary to advance a Shala type argument simply have not been established.
57. In respect of Mr Musanovic, the highest in my judgment that his case can be put is that if his case had happened to have been determined in the short period when Bulletin 4/99 was in place and unqualified by the Bulletin 1/00 he might have had a significant prospect of success. However it has to be borne in mind that no such argument was advanced before the Adjudicator nor before the IAT. I find it wholly impossible to reach any conclusion without the evidence and findings of fact that there would have been if this point had been taken at either stage as to whether this could properly be characterised as a likelihood of success. Since neither the adjudicator nor the IAT were asked to consider these issues, it is impossible in any way to be critical of them for not considering them. However if they had considered them it seems to me that again the case must inevitably have been distinguished from Shala for the reasons advanced by Mr Wilken. It cannot be right that merely because for a relatively small part of the time when an application might have been determined, there was a good prospect or even a likelihood of success, that it follows that any subsequent determination has to be favourable even if by then the position has changed. If this application had been determined in its first 4 ½ months, the evidence does not suggest that it would have succeeded. If it had been determined after Bulletin 1/00 was issued again it seems likely to me on the available evidence that it would have failed. Such a situation is in my judgment far removed from the position in Shala and thus even if an argument of this kind had been advanced before the IAT I am satisfied that it would have failed.
58. For these reasons I would dismiss each of these appeals. I consider that there may well be further merit in Mr Wilken's argument that one is not comparing like with like in considering those cases involving a right to remain when there is no other existing basis for such a right apart from Article 8 considerations and the underlying circumstances of Shala's case. However, in the light of my conclusions on the factual matters already set out, I find it unnecessary to determine this issue and I consider it better that it awaits to be considered in a case where there are different facts that might otherwise lead to a different conclusion.
59. Lord Justice Wall:
60. I agree that these appeals should be dismissed for the reasons given by Kay LJ, whose judgment I have had the opportunity of reading in draft
61. In my judgment, the decision of this court in Shala v Secretary of State for the Home Department [2003] EWCA Civ 233 turns very much on its particular facts. The decision to remove Mr Shala constituted a disproportionate and unjustified interference with his right to respect for his family life under Article 8(2) of ECHR because:

(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.

62. As Kay LJ has demonstrated, the evidence in the two appeals with which this court is concerned comes nowhere near establishing the proposition that, absent unreasonable delay, Miss Janjanin and Mr. Musanovic would have been granted asylum or exceptional leave to remain or even "some form of leave to enter or remain" if their claims had been processed more swiftly. In both cases the IAT rejected the asylum claims, and in neither is there an appeal against that decision. In essence the argument is that it is the simple fact of delay in dealing with the applications, and the consequential length of time each appellant has been here which; (a) goes to establish family and / or private life within the United Kingdom; and (b) renders the decision to remove a disproportionate interference with it.
63. In these circumstances, I agree with the passage from the judgment of the IAT in Miss Janjanin's case which is cited by Kay LJ in paragraph 16 of his judgment. Delay is relevant, but in both cases not sufficiently relevant to make it determinative.
64. One cannot but have some sympathy for both appellants. Miss Janjanin is doing valuable and responsible work in the National Health Service. Mr. Musanovic is doing excellent work with Head Start. But these factors simply go to underline the different functions of the courts and the Secretary of State. It is for the courts to decide in the instant appeals whether or not Article 8 of ECHR is engaged, and if so, its effect given the particular facts of the two cases. Matters of policy (in the instant cases, exceptional leave to remain) are for the Secretary of State.
65. Lord Justice Thorpe:
66. I agree.