COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE SCOTT BAKER
| Strbac & anr
|- and -
|The Secretary of State for the Home Department
Mr Sean Wilken (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 12 May 2005
Crown Copyright ©
Lord Justice Laws:
"5. In September 1991 the battle for the village ended. When the Yugoslav army commanders discovered that the appellant had served in a tank regiment during his military service, he was conscripted into their forces. He served as a private in a tank regiment, although he had command of a four-man tank. When the Serbian army withdrew on 20 May 1993, the appellant was promoted to lieutenant and was left in command of 50 men and 10 tanks. He remained in that position until he was demobilised under the Dayton Agreement in May 1995.
6. The appellant feared for his family's safety, from Croatians who were returning to his village. On 26 January 1998 he took the family to Norway where he claimed asylum. During their stay in Norway he discovered that his paternal cousin, Cerdo Strbac, a colonel in the Yugoslav army who had been in command of a brigade, had been tried in absentia for war crimes and sentenced to 20 years imprisonment. Following refusal of his asylum claim, the appellant and his family returned to Croatia on 11 October 1998. Although the appellant had owned a flat in Osijek, this had been taken over by a Croatian family in 1991. Attempts to reclaim the flat were unsuccessful. He and his family had to live with his widowed sister-in-law, Branka, in Tenja.
7. He was unable to find work in Osijek. He considered moving to the Federal Republic of Yugoslavia, particularly since his daughter, married to a Serbian citizen, lived in Belgrade, but although Croatian Serbs were allowed to travel in and out of the country, they were not allowed to settle there. He decided that there was no future for his family [in] Croatia. In January 1999 he and his family travelled by car to Zagreb airport and from there came to the United Kingdom.
8. He last spoke to his sister-in-law Branka in January 2002. She told him that his cousin was now in prison in Croatia. Although he had not been involved in any war crimes, he believed that this would not stop the Croatian authorities from blaming him for the deaths of Croatian citizens. He feared that if returned to Croatia he would be arrested and probably imprisoned, although not for such a long period as his cousin."
The appellant arrived in the United Kingdom on 28 January 1999, accompanied by his wife, and claimed asylum on arrival.
THE DETERMINATION OF THE IAT: SHALA, THE BULLETINS, AND DK
"27. The appellant's claim, in short, is this: from 1991 – 1995 he served with the Serbian militia and later the Yugoslav army. He was in charge of 10 tanks with immense destructive force. If he returns to Eastern Slavonia he may be accused of war crimes. In any event, the authorities and the local Croat population will persecute him because of his wartime activities and because of his relationship with his cousin, who has already been convicted of war crimes. "
The Adjudicator rejected this claim, and associated claims based on Articles 3 and 8 of the European Convention on Human Rights ("ECHR").
"1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, or public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Given the argument that is to come, it is convenient also at this stage to set out ECHR Articles 3 and 14:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"14… [T]he 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.
16… 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 Department's delay in the present case."
Schiemann LJ said:
"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 person's rights under Article 8 is necessary in a democratic society."
"As the background political paragraphs make it clear, the civil war in Croatia was the result of ethnic divisions between the minority Serbs and ruling Croats and problems on ethnic lines have remained in the war's aftermath. As a result Croatians of Serb ethnicity continue to be the victims of harassment and intimidation generally in Croatia, but particularly in those war-affected areas of Croatia [Krajina, Eastern and Western Slavonia] where ethnic tensions and memories from the war still run high. There are many well-reported examples of this from credible sources and may well, as a result, be able to substantiate a claim to asylum under the terms of the 1951 Convention. The whereabouts and, if still living in Croatia, the local treatment of close family members may have a bearing on the decision ie if close family are living without difficulty in Croatia, the fear of persecution will diminish and vice versa. UNHCR's position in their paper dated February 1998 on the treatment of asylum seekers from Eastern Slavonia was that Serbs from the area did not automatically warrant protection en masse and so recommended that States examine each case individually. They consider that Serbs from this area may well be able to substantiate an individual claim but they are not recommending a 'group' policy of protection."
The amended version of 2/99, effective from August 1999, has paragraph 10.6 in the following terms:
"10.6 Advice to Caseworkers
- There is no 'group policy' towards Serbian asylum-seekers from Croatia and so 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 areas of Eastern Slavonia, Baranja and Sirmium; the Krajina and Western Slavonia, may [my emphasis] 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 may not be able to substantiate a claim to asylum on the grounds of ethnicity alone."
The appellant has produced what is said to be a true copy of 2/99 in its original unamended form. There is a difference of one word in paragraph 10.6. This copy of the original has "will" instead of "may" in the second bullet-point: "will be able to substantiate a claim …" I mention these details because Mr Wilken for the Secretary of State, as I understood him, was at first disposed to dispute the suggestion that 2/99 had ever been in this form; rather the word "may" in the relevant sentence had always appeared. A search had been carried out, but Home Office representatives had been unable to find any copy of the bulletin with the verb "will" at 10.6 on the Home Office computerised records. It seems that at some time in 1999 a change was made to the software in use at the Home Office. It may be that some documentation is missing for that reason. At all events the appellant's version, containing the word "will", is immediately preceded by a cover sheet stated to have been issued by Christine Linton of the Country Information and Policy Unit. It has the words "May 1999" in manuscript. Then, after the words 'BULLETIN 2/99 CROATIA", this is stated: "This bulletin has been issued to update case workers on the situation in Croatia". There follows the text, with the word "will" in paragraph 10.6. In the absence of any further or better information from the Home Office I for my part would accept (as I indicated at the hearing) that the word "will" appeared in the original unamended version of 2/99. How far the point affects any of the issues in the appeal is of course another matter.
Caseworkers and Presenting Officers will need to be aware of the recent allowed appeal in the case of KEKUS (K1002445).
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 showed 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 Rapporteur.
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 therefore be considered very carefully before reaching a decision.
A copy of the 'expert opinion', and the OSCE and UN reports are available in CIPU and will be circulated with an extended Bulletin in the next few weeks."
"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 Mr Racan [who was to be head of the new government] has said that he will offer a modest and moderate government and foreign diplomats believe that the change of government could be a change for the better. The fall of the HDZ, the former ruling party, may be seen by some of the 100,000 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 (K1002445) has highlighted the need for more up-to-date advice on the case of Croats of ethnic 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."
Lastly in bulletin 3/00, issued on 10 April 2000, this was stated:
"7. In an interview in February, the Head of the 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 ethnic Serbs could now substantiate a claim for asylum."
"25. The appellant's appeal was prosecuted on three grounds:
(1) Delay in the processing of his asylum application denied him a presumption of the grant of some form of leave, namely, exceptional leave to remain for four years following which he could have had the opportunity of applying for indefinite leave to remain.
(2) His fear of prosecution for activities in the war and:
(3) The appellant's inability to regain possession of his property and the discrimination he might face on return to Croatia as an ethnic Serb."
"28. In Shala the Secretary of State had a policy of granting asylum to ethnic Serbs [sic: the intended reference is to Albanians] from Kosovo. However, we find that there was no equivalent policy in force for ethnic Serbs from Croatia at the time of the appellant's entry. What we have are Bulletins in the form of advice to caseworkers in their consideration of applications by ethnic Serbs from Croatia. Bulletin 2/99 advised that there was no 'group policy' towards Serbian asylum seekers from Croatia and that each case has to be determined on its own merits. There was however the general presumption that Serbs from the war affected areas including Eastern Slovenia, from where the appellant originates will be able to substantiate a claim to asylum on the grounds of their ethnicity. Bulletin 4/99 advised caseworkers and Presenting Officers [of] the need to be aware of the recent allowed appeal of Kekus and also objective evidence, which showed that ethnic Serbs were very likely to suffer persecution and discrimination based on ethnicity. In this appellant's case, his claim in his interview was wholly based on economic reasons, namely, the loss of his job and property. This was what led the Secretary of State to conclude that the appellant's motivation for coming to the UK was economic. In the circumstances we are not in a position to assume that this particular appellant would have received a favourable decision and thereby been granted some form of leave to remain, had his application been considered within a reasonable time, namely within 12 months of his arrival.
29. The other special feature of Shala was that had he been granted some form of leave to remain, this would have enabled him to make an in-country application for a variation of his leave to remain as a spouse and the Secretary of State's policy of requiring those who had no leave to apply for entry clearance out of country, would not have been applied, and the interference with family life would not have occurred. In this appellant's case, it was argued that had the appellant been granted some form of leave to remain, e.g. exceptional leave to remain for four years, he would then have been able to apply for the grant of indefinite leave to remain. The facts of this appellant's case are somewhat different from Shala. Shala had married someone who had no connection with Kosovo and who already had two children and who had already been granted refugee status in this country. Therefore an out of country application as a spouse would have caused an interference, however temporary, to his family life. In this particular case, the Appellant arrived in the UK with his wife and son. Therefore refusal to grant him some sort of leave to remain in the UK poses no interference with his family life, as he and his wife would be removed together. We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life. We do not know the outcome of his son's asylum appeal. Nevertheless any interference with their family and private lives would not, in our opinion, be disproportionate to the effective maintenance of immigration control. Furthermore, as it is speculative to assume that he would have been granted some sort of leave to remain, it is also speculative that he would have been in a position to apply for indefinite leave to remain."
In his skeleton argument in reply, Mr Nicol QC for the appellant criticises the IAT's summary (paragraph 28) of the appellant's claim in interview to the effect that it was "wholly based on economic reasons". Mr Nicol points to the appellant's reference at the end of the interview to his involvement in the army and his cousin having been a high-ranking officer, and his statement that for these reasons he did not feel safe in Croatia. However, this is addressed by the IAT. They stated:
"30… His emphasis throughout his interview was on the fact that at the end of 20 years of work he had nothing to show for it, no flat, no job and no country. It was at the end of the interview when he was asked if he had anything to add that he said that because of his involvement in the army and his cousin being a high ranking officer in the army he did not feel safe in Croatia. We accept that the Secretary of State did not consider the limited evidence before him in relation to the appellant's activity in the war or his fear as a consequence thereof when he wrote his reasons for refusal letter. The appellant's statement of 13 January 2000, which was sent to the Secretary of State on 4 August 2000, appears not have been considered by the Secretary of State. It is obvious that the statement was sent after the reasons for refusal letter but was before the Secretary of State when he made his decision on 30 November 2000. Counsel argued that had the Secretary of State taken into account the Appellant's fear on account of his activity in the war and his cousin's high rank and status in the army, he would have granted the appellant some form of leave. We disagree. The Bulletins in force at the time make no mention of the likelihood of an ethnic Serb succeeding because of his activities in the war."
"32. We now turn to the Appellant's fear of discrimination and his inability to regain possession of his property. We rely on DK and find that there is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families will be unavailable even if there is no ODPR temporary accommodation. If the Appellant is unable to regain his own property, he should be able to obtain other accommodation. His inability to regain his own property is insufficient to create a real risk of persecution. In the light of the objective evidence, we accept that there is discrimination against Serbs in Croatia. However we find that the discrimination is insufficient to create a real risk of persecution."
"However, unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either convention".
"1. Discriminatory loss of homes and livelihood.
2. Discriminatory denial of social and economic rights in the areas to which return is envisaged. No special efforts are being made to redress the wrongs suffered and the help return to society [sic].
3. Discriminatory denial of judicial assistance in reclaiming homes occupied by Croats.
4. Loss of stability and security because of the prospect of a marginalized and ostracised existence in largely ethnically cleansed country. Only a small fraction of Serbs who used to live in Croatia now remain and the majority are the elderly who have returned to die in their homeland."
In passages also cited in DK the IAT in S & K had concluded as follows:
"40. As will no doubt be apparent, we are satisfied that there has been no worsening of the situation since we decided S and in any event the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the [ECHR]. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection… Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration.
45. Despite the hardship that the claimant will undoubtedly suffer from the fighting in his country, he does not show any special circumstances which mean that can establish that he should be given the benefit of either Convention…"
"80. The principal problem identified in the OSCE Report over returns and sustainable returns relates to housing. There has been discrimination against Serb refugees and priority given to Croat refugees in a number of respects. However, the picture was one of improvement and change for the better. It is clear that reconstruction of Serb houses is now where most of the housing reconstruction money is going, and their houses are being rebuilt; it may well be that that is because the Croat houses have all been rebuilt, which demonstrates discrimination, but even so, the reality is that the Serb houses are being now rebuilt as the major part of the housing reconstruction programme. There is evidence that the authorities concentrate their endeavours on those refugees who have returned and have a house which should be rebuilt; there is therefore an iterative process in which returns encourage reconstruction or other housing assistance and that in turn encourages sustainable returns. There has been discrimination in the repossession of houses, with very little of the vigour displayed in repossessing houses occupied by Croats which was displayed towards those Serbs occupying Croat houses. But there is slow progress. There is at least recognition at the level of legislation that tenant rights and convalidation of pension rights and work records need to be tackled and evidence that at local level there has been no implementation. We accept the point that what a Government may say can reflect a change in outlook for the better, but that may not really assist until the discrimination or other problem has been removed through effective implementation. We would see the picture as being one of slow progress, with good intentions somewhat ahead of implementation in a variety of respects, and with better progress in the field of reconstruction which is the one which most directly affects DK.
88. We do not accept Mr Mullins' argument that the burning down of the family house and the continued absence of reconstruction or compensation should be seen as a continuum, a breach of Article 3 which continues to this day. We are prepared to accept for these purposes that the burning of the house and the subsequent enforced flight would amount to a breach of Article 3, along the lines of Dulas v Turkey. What we reject is the continuance of that breach. First, the test is not whether the breach continues or has been remedied; the question is whether DK would face a real risk of treatment which breached his Article 3 rights. It is by its nature a prospective test and although the past can colour the appraisal of the prospect, we do not consider that the want of reconstruction of his family house itself constitutes a breach of Article 3, and it is to that that we should look rather than to the circumstances which led to its destruction. That is closely related to the second point; there have been changes in the circumstances which warrant looking at the position as it now is, and which break the continuum. There has been a change in regime; the Tudjman regime which carried out the ethnic cleansing has gone, and one of a very different outlook and aim has taken its place. Significant efforts are now being made, belatedly for sure, to reconstruct Serb houses. The return of Serbs is encouraged. Time has passed. There is no reason to take a different view from that which was applied to SK [sc S & K. It follows, from what we have said in this paragraph, that we also reject the suggestion that, unless DK is able to return to Croatia 'with dignity', the past breach of Article 3 should be regarded as continuing."
I should say that this argument that a violation of ECHR rights may be constituted by a "continuum" of events is raised in the present case, and I shall deal with it in due course.
"89. Mr Mullins' best point was that it was now clear that the Tribunal had proceeded under the misapprehension that there was no distinction in terms of UNHCR assistance with temporary accommodation between those returning as refugees and those returning as failed asylum seekers. It is correct that no such distinction was drawn either by or for the Tribunal, notwithstanding all the expert assistance with which it was weighed down, and all the earlier discussion of these issues in S and others. The problem had come to the notice of Sutovic and Hartigan [solicitors who also act in this case] before the application for permission to appeal in S & K was heard, as the date of the e-mail inquiries shows, but it was not raised. We conclude, however, that the upshot of the various exchanges is what is set out in the June 2003 letter from Mr Lunsdorf: those who return as failed asylum seekers do not receive the benefit of UNHCR assistance prior to return, or temporary accommodation from the ODPR, and it is highly unlikely that any exceptional humanitarian assistance would be available to DK from UNHCR.
90. This is a less favourable position than the one assumed in S & K. We are not persuaded, however, that there is any basis for reaching a different conclusion in general for failed asylum seekers. (Paradoxically, it would appear that if DK were to succeed, he could be returned straightaway on this basis, for he would receive UNHCR assistance.) We are not sure what impact on this his proven Displaced Person status in Serbia would have were he to return to Croatia directly, or indirectly via Serbia, but for present purposes we shall ignore it; it is not a point which the e-mail exchanges address."
Reasons are then given for this approach in the following paragraphs. In light of the way Mr Nicol puts his case on what I will call the DK point, I should also set out part of the IAT's reasoning in DK regarding the appellant's personal circumstances:
"93. Turning to DK's particular circumstances, he has a new skill and although there is employment discrimination against Serbs and we make no assumption that Knin is a thriving economy, we consider that a man of 34, with a skill or access to benefits should be able to get by, however uncomfortable and hard his circumstances may be. There may or may not be employment opportunities elsewhere in Croatia other than Knin, but we recognise that it is there that other factors may lead him to stay and we make no assumption that he would move elsewhere. There is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families, would be unavailable even if there is no ODPR temporary accommodation. His presence would be of assistance in bringing more effective pressure to bear in gaining priority for the reconstruction of the family house; it is plain that priority is given to those who have returned over those who have not, in the allocation of reconstruction resources. He is not in that age group described as the most vulnerable, too old to have any job prospects and too young to enjoy a pension."
The reference to the "most vulnerable" age group is not to a finding of the IAT but to the opinion of an expert, Dr Blitz, recorded by the IAT as follows:
"40… The most vulnerable returnees, in his opinion were those aged between 45 and 55, too old to have a job and too young to obtain a pension."
As we shall see, Mr Nicol submits that the appellant in this case falls precisely within that category.
THE ISSUES: (1) SHALA
(1) the Secretary of State has failed to decide the claimant's asylum application (or, it may be, his claim to enter the United Kingdom Kingdom on other grounds) within a reasonable time;
(2) if he had done so, the claimant would probably have been granted leave to enter and/or remain;
(3) in the period before his application was in fact decided, the claimant established family life in the United Kingdom, within the meaning of Article 8;
(4) his family life so established would be interfered with, contrary to Article 8, if he were now to be removed or deported.
"Shala is authority for the wider proposition that when striking the balance between an applicant's rights under Article 8 and the legitimate objective of the proper maintenance of immigration control, the decision maker must have regard to delay in determining an application for asylum and its consequences."
It is of course right that administrative delay in the determination of an application may, at least if it proves to be substantial and to have brought consequences in its wake beyond the bare passage of time, be a factor which the decision-maker is obliged to consider. But as a proposition that does no more, with respect, than identify an actual or potential relevant factor. (And it is a factor which, I apprehend, must have very substantial effects if it is to drive a decision in an applicant's favour: see Anufrijeva.) This is a far cry from Mr Nicol's very different endeavour, which was to glean from Shala a distinct principle: a principle which, with some qualifications, came close to a rule to the effect that an applicant whose claim to enter or remain (a) is decided after the expiry of a reasonable time and (b) would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, should, if he has meantime established a family life here, be treated as if it had been so decided. I am not sure whether Mr Nicol would accept such a formulation. It was certainly the direction of his argument.
"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…"
That is, quintessentially, a conclusion on the merits. In Janjanin, also, Wall LJ stated that the decision in Shala "turns very much on its own particular facts". So did Janjanin itself. Kay and Wall LJJ (with whose judgments Thorpe LJ agreed) both drew attention to this passage from the determination of the IAT:
"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 Shala."
"We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life."
There is an exiguous reference in the appellant's witness statement of 5 June 2003:
"My family and I have started to settle here. My son has qualified as a bus driver and works full time. I have learned some English but I do not have permission to work. It has been difficult to live with this level of uncertainty for the past years…"
"to allow an appeal against removal or deportation brought 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 notwithstanding that he cannot succeed under the Rules."
"This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances."
THE ISSUES: (2) DK
"… the test is not whether the breach continues or has been remedied; the question is whether DK would face a real risk of treatment which breached his Article 3 rights. It is by its nature a prospective test… although the past can colour the appraisal of the prospect…"
This is plainly right. The relevance of past events to a claim that the applicant would suffer a violation of a Convention right if he were returned to his country of origin can only be to cast light, as a matter of evidence, on what would happen if he were indeed returned. Such past events cannot of themselves constitute some part of the apprehended breach, which by definition lies in the future. That is not to say that evidence of these events may not be of great importance. They may cast much light on what will happen if the applicant is returned. They may, in some cases, show that by reason of his history the applicant's health, personality or mental state is especially vulnerable.
"30. It is well recognised that there may be a violation of Article 14 read with another Article in the Convention without there being any violation of the substantive Convention right… To take an example… in legal proceedings two different sets of procedural standards may apply, such as…, to take an extreme and no doubt impossible instance, a rule whereby for some classes of case persons of one race would be entitled to jury trial, but persons of another would not. That would obviously be a violation of Article 6 read with Article 14, even though it could not be suggested that Article 6 of itself required jury trial. There was discriminatory action which was nevertheless within the scope or the ambit of Article 6, and so Article 14 had a field of operation within which to bite…
31. The difficulty here is to see how Article 14 can apply in an Article 3 case where there is no violation of Article 3 simpliciter… [I]t seems to me that Article 3 is, unlike Article 6 and unlike the political rights in Articles 8 to 11, a provision which has something of an absolute quality. On any given set of facts there either is a breach of it or there is not. There is no analogue to the second paragraph of each of Articles 8 to 11 allowing derogation from the right in certain circumstances. Degrees of treatment short of Article 3, however discriminatory, will not violate Article 14 taken with Article 3, as it seems to me because treatment short of Article 3 cannot really be said to be within the scope of Article 3 itself…"
"40… Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration."
Lord Justice Longmore:
Lord Justice Scott Baker: