England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		16th December 2005

Friday, 16th December 2005

1. LORD JUSTICE TUCKEY: This is an appeal from a decision of the IAT which allowed an appeal from an adjudicator who, in turn, had partly allowed an appeal from a decision of the Secretary of State refusing the appellant's claim for asylum and humanitarian protection. The adjudicator had upheld the appellant's Article 8 claim.
2. The appellant is a 57-year old Croatian Serb. He and his wife entered the United Kingdom in December 1998 after being refused asylum in Norway. They claimed asylum on arrival here, but the Secretary of State's decision refusing this and the related Article 3 claim was not made until four and a half years later in June 2003.
3. The appellant and his wife arrived with their two grown-up sons who have since married asylum seekers granted status here. The sons have been given leave to remain because of their marriages. One of them has three children. The basis for the Article 8 claim was that the appellant enjoyed family life with his children and grandchildren and had no such life anywhere else.
4. The adjudicator dismissed the appeal against the Secretary of State's asylum and Article 3 decision. He dealt very shortly with the Article 8 claim saying:

"The factor that is determinative of this appeal, in my judgement, is the Article 8 claim and in this respect the key factor is the delay on the part of the Respondent. I am satisfied on the evidence before me that there is both family and private life established in the United Kingdom and that the provisions of Article 8 are engaged. I am also satisfied that notwithstanding the importance to the Respondent of its lawful objective of maintaining an effective immigration policy it would be wholly disproportionate in all these circumstances to seek to return the appellant and his wife to Croatia. For that reason the appeal is allowed."

5. By the time of the adjudicator's decision appeals to the Immigration Appeal Tribunal were governed by sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002 which confined the right of appeal to errors of law. The effect of these provisions was comprehensively considered by this court in R(Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982.
6. By his first ground of appeal, which is the only ground upon which he currently has permission, the appellant submits that there was no error of law by the adjudicator so the IAT had no jurisdiction to hear the Secretary of State's appeal.
7. As part of the consideration of this point it is accepted that one must look to see whether the grounds of appeal identified such an error and also whether the IAT did so when granting permission. The Secretary of State's grounds of appeal stated:

"The Secretary of State submits that the adjudicator has erred in law by allowing the Respondent's appeal under the Article 8 of ECHR, in that he has failed to perform adequately the balancing act necessary to establish proportionality correctly. The adjudicator's analysis at paragraph 10 of the determination implies that residence in the UK since arrival on 9 December 1998 (without the presence of children under the age of 18) outweighs the lawful objective of maintaining an effective immigration policy.

"It is submitted that this error of law fatally flaws the determination, and had the adjudicator not made the error of law identified above he would have dismissed the appeal."

The IAT's decision granting permission to appeal said:

"The grounds of appeal are properly arguable in that the Adjudicator's assessment of the balancing exercise under Article 8 does not appear to reflect the guidance of the Court of Appeal in Razgar, but appears to punish the Respondent for the delay in his decision-making, without considering whether the private and family life established in the UK by the Claimant as a result of the delay is sufficient to outweigh the due deference that is required to be paid to the Respondent's policy of maintaining a fair and effective immigration system."

8. In its decision allowing the Secretary of State's appeal, the tribunal rehearsed the arguments advanced by the parties' representatives based on the law, as it then was in August 2004, as to the effect of delay and proportionality in the context of an Article 8 claim. The appellant's solicitor did not contend that the assertion made in the notice of appeal was not an error of law. Indeed, the tribunal note that he had submitted:

"... that the only issue before the Tribunal was that of assessing proportionality and considered that he had to be realistic and accept that the assessment of proportionality was inadequate and that it was not enough to say that delay was the only factor that rendered the Secretary of State's decision was disproportionate."

9. The tribunal's conclusion is to be found in paragraphs 16 to 19 of its decision which say:

"16. There is insufficient evidence before the Tribunal to show that the Claimant would have been granted status had his appeal been dealt with within a reasonable period after his arrival and to this end the Tribunal consider that any delay has not in essence disadvantaged the Claimant in that he has not formed a relationship to his detriment with other members of the family as such relationship was in essence already in existence when he entered the United Kingdom with his wife and two sons.

"17. It is accepted by the Tribunal that his sons have now married and in one instance the union has produced grandchildren, however, there is no evidence of any interdependency between the Claimant and his family over and above the usual family ties between parents and adult children. There is little before the Tribunal to show that the Appellant's circumstances are exceptional whilst it is accepted that there is a degree of family life existing between the Claimant and the family that is to remain in the United Kingdom. Removal would interfere with such family life, such interference is in accordance with the law, has the legitimate aim of effective immigration control and is proportionate to the aim to be achieved.

"18. Whilst the Tribunal notes the delay on behalf of the Secretary of State in dealing with the Claimant's application and considers that such delay is unreasonable this does not negate the Secretary of State's policy for effective immigration control and the delay does not entitle the Appellant to claim special or exceptional circumstances as such furthermore delay falls short of being excessive in all the circumstances taking into account the volume of asylum seekers being dealt with by the Secretary of State at the period in question.

"19. The Tribunal's conclusion is that the Claimant's circumstances are not exceptional nor is the Secretary of State's decision to remove him outwith the range of reasonable responses open to him. Such interference with family and private life within Article 8 as may be caused by the removal would be proportionate and under the circumstances the Secretary of State's appeal can only succeed."

10. Returning to the first ground of appeal. Mr Nathan, for the appellant, submits that the notice of appeal, the decision to grant permission and the decision of the tribunal itself identify no error of law on the part of the adjudicator. They amount, he says, to no more than disagreement with the factual finding by the adjudicator. He elaborated those submissions before us this morning by seeking to persuade us that in fact there was no error of law in the adjudicator's decision by reference to cases which had been decided by the time it was made. It was possible, he submits, for the adjudicator to conclude that the delay was the determining factor and that the family life which the appellant had established here was sufficient to outweigh the need for effective immigration control.
11. There is no dispute between the parties about what the law now is. It has been refined in cases since the adjudicator's decision, but must be taken to have been the same then as it is now. Generally speaking, the Immigration Rules strike the balance between the public interest in maintaining effective immigration control and the private rights recognised by Article 8. Where an appellant cannot succeed under the Rules an adjudicator is required to allow an appeal against removal or deportation on Article 8 grounds, if, but only if:

"... he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour..."

I quote from the judgment of Laws LJ in Huang [2005] EWCA Civ 105, where what I have said is to be found between paragraphs 57 and 62.

12. Administrative delay in the determination of an application may, at least if it proves to be substantial and to have broad consequences in its wake beyond the bare passage of time, be a factor which a decision-maker is obliged to consider. However, its effects must be very substantial if it is to drive a decision in the appellant's favour. Again I refer to a decision of Laws LJ, this time in Strbac [2005] EWCA Civ 848 at para 25.
13. Mr Nathan referred us to Akaeke [2005] EWCA Civ 947. But this case does not seem to me to cast any doubt upon what is said in Huang and Strbac to which I have referred.
14. Failure to apply the principles to which I have referred must obviously be an error of law. Although it could have been spelt out and labelled more clearly, it seems to me that what the grounds of appeal and the IAT's permission and decision are saying is that the adjudicator's errors lay in considering that the mere fact of delay outweighed the public interest in maintaining an effective immigration policy and that proportionality was at large so that there was no need to identify exceptional circumstances in this case.
15. I think it is an inescapable conclusion that these were errors of law. The adjudicator did not apply any exceptionality test when considering proportionality. He does not identify any test and appears to have proceeded on the basis that the issue was at large. He considered that delay was the determining factor, although he does not identify any prejudice caused to the appellant beyond the mere passage of time. For these reasons I am in no doubt that the Secretary of State's appeal was one which the IAT had jurisdiction to hear.
16. Having identified errors of law the IAT could only set aside the decision of the adjudicator if it was satisfied that the errors were material to the outcome of the proceedings. Mr Nathan realistically conceded that if we were not with him so far, the errors of law which I have identified would entitle the tribunal to set aside the decision. Having jurisdiction to do this, the IAT had the power under the Act to make any decision which the adjudicator could have made. That is what they proceeded to do, with, it should be added, the consent of the appellant's legal representative who appears to have conceded that the adjudicator had been in error.
17. It was not alleged that the IAT had misdirected itself in reaching the conclusion which it did. The grounds of appeal contended, however, that its decision was procedurally unfair because it relied on the volume of asylum seekers during the period in question as an explanation for the long period of delay in the appellant's case when it heard no evidence to explain the delay, either generally or in the appellant's case. Mr Nathan submits that the tribunal might have taken a more serious view of the delay but for its speculation as to its cause. It found the delay to be unreasonable and, if it had not found some sort of explanation for it, it might have concluded that the delay was so exceptional in this case that it did drive the Article 8 decision in favour of the appellant.
18. I do not accept these submissions. It does not seem to me that the tribunal's explanation for the delay was in any way determinative of its decision. But one has to say that it must have been a matter of common knowledge to the tribunal that the large volume of cases was at least partly responsible for delays during this period and as a specialist tribunal they were entitled to rely on this. Mr Nathan has referred us to an article which suggests that computer problems may have been the real cause of the delays, but computer problems presumably only occurred because systems had to be developed in order to cope with the mounting volume of cases which had to be processed. For these reasons I do not accept Mr Nathan's submission that had the tribunal not been able to put forward this reason for the delay it would or might have reached some different conclusion in this case. This is not a ground upon which the appellant has permission to appeal. For the reasons I have given I would not grant it.
19. Before us today, however, Mr Nathan mounted a rather wider ranging attack on the tribunal's reasoning, saying that it was flawed because they used a pre-Huang definition of "exceptional" in its reasoning and might have reached a different conclusion if Huang had been decided by the time they made its decision. He submits also that it did not properly take into account the strength of the argument for family ties in this case and made a number of other related points.
20. I am not persuaded that any of these points undermine the conclusion which the tribunal reached. It did so by looking to see if this was an exceptional case and recognised that delay, without any identified specific prejudice, could not drive an Article 8 decision in an appellant's favour. I can detect no error of law in its reasoning.
21. Finally, Mr Nathan submits that we should feel some sense of unease about this case and so allow the appeal so that it can be considered in the light of the recent authorities and proper account can be taken of what Mr Nathan submits is the exceptional delay in this case and the effect that it has had upon the appellant.
22. I am afraid I do not think that this is a course we should take. It seems to me that the law is now no more favourable to the appellant's case than it was at the time when the adjudicator and the tribunal considered it.
23. For those reasons I would dismiss this appeal and refuse permission to appeal upon the other points raised.
24. LORD JUSTICE LAWS: I agree that the appeal and the restored application in this case should be dismissed for the reasons given by my Lord.
25. LORD JUSTICE MOORE-BICK: I also agree.

ORDER: application dismissed; detailed assessment for purposes of Legal Services Commission granted for appellant's costs.