COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE CARNWATH
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|ELIZABETH TITILAYO AKAEKE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Peter Jorro (instructed by Messrs. Wilson & Co) for the Respondent
Crown Copyright ©
Lord Justice Carnwath :
"… 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".
"A public disgrace"
"I do appreciate that there have been delays in this case and unfortunately owing to the large number of applications currently being processed by the Immigration and Nationality Directorate, I am still not in a position to give any indication as to the likely outcome of Mrs Akaeke's application, or when she will receive notification of the decision. However, when a decision is reached, Mrs Akaeke will be advised as soon as practical by her appointed representatives".
Although it was almost two years following that letter before a decision was reached, no other explanation was ever given to her for the delay, and no explanation has been given to this court.
"We have now reached the decision under appeal. It took over three years and three months from the solicitors' application, nine letters by them trying to get something done about it, and (which seems to have been what eventually brought about any action at all), the intervention of two successive MPs. Before that process even began, there had been two years (late 1996 to late 1998) in which neither side did anything at all, though the Home Office knew the claimant was here without any authority, following refusal of leave to appeal against Mr Disley's decision; and only two months at most where the claimant delayed her own removal by applying for judicial review.
"There was no reason whatsoever why the solicitors' application of 22 February 1999 should not have been dealt with in a matter of weeks: even if it had taken over 18 months, there would have been no further appeal to the Appellate authorities, so long as it had been dealt with before 2 October 2000 (when the relevant provisions of the 1999 Act came into force). The case was never let go to sleep by the solicitors, and the IND had every opportunity to give it its proper priority. That they did not do so is a public disgrace."
Mr Robb, on behalf of the Secretary of State, has not sought to persuade us that these criticisms, from a very experienced chairman of the IAT, were unjustified.
Proportionality – the tribunal decisions
"I accept that in normal cases an Appellant should return to her Country of origin, make the appropriate application for entry clearance and she should not normally be permitted to 'jump the queue' in this way. However, I take into account the special circumstances of the case, including the length of the relationship and the marriage, the fact that the parties are not receiving benefit, the university course, the employment record of the Appellant and her husband and the unfortunate delay of the Respondent. After taking all these matters into account, I consider it would be disproportionate for the Appellant (and possibly her husband) to return to Nigeria."
"Even though the delay in this case has not resulted in the birth of any children to the parties…, and even though there are no special circumstances beyond it, and even though refusal at the proper time would have been unchallengeable, we have no doubt that the average right-thinking citizen of this island would agree with the Adjudicator that what has happened in effect makes the decision reached, in the words of Edore, disproportionate and not striking a fair balance between the competing interests in play.
The public are entitled to have anyone without lawful right to be here removed from this island to pursue any claim to family reunion in the proper way, but both they and those concerned are entitled to expect that this should be done in a reasonable time, and with some regard by the authorities to the fact that they are dealing with human beings, whose lives go on, whatever the administrative basis for them."
The appeal to this court
"I grant permission with no particular enthusiasm essentially to argue the central point of principle said to arise here: whether delay (however long and inexcusable, as here) which causes the applicant no substantial prejudice can ever of itself make it necessarily disproportionate to remove an applicant.
Given the further lapse of time which must now occur until this appeal is determined, consideration should be given to whether this court, even if it upholds the view the appellant seeks to establish, should grant the relief sought."
The arguments on the appeal
"… except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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."
"The adjudicator has no business whatever to question or pass judgment upon the policy given by the Rules. In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him. It is not at all the subject of that debate…. The adjudicator is not required to address the relative importance of the public policy and the individual right. " (Huang para 56)
"The respondent's delay in dealing with the appellant's asylum application had meant that the appellant had been physically in this country for over 4 years before any decision was made, a period of such length that it is not surprising that he had formed an enduring relationship. Yet because of the delay he was treated as not having entered the United Kingdom but as merely having temporary admission. Had his application been dealt with with reasonable promptness, he would as a refugee from Kosovo been granted refugee status or at least exceptional leave to remain. This was the respondent's policy up until mid – 1999 as the decision letter in this case shows. In that case the appellant would not have been required to leave this country and to apply from Kosovo but could have made his application for a variation in his leave from within the United Kingdom. There would then have been no interference with his family life. The delay on the respondent's part in dealing with his asylum claim has disadvantaged the appellant and rendered the decision to remove him disproportionate." (para 9, emphasis added)
"The Appellant arrived in this country when he was 17 years of age and, even though he was a minor, the Home Office took an extraordinarily long period of time, namely over four years, to make a decision on his case. That was unreasonable, in my view, and gave the Appellant an expectation that he would in due course be entitled to remain in this country, and cashing in on that expectation he regarded himself as settled and found a job and studied as well. That progress, as far as he is concerned, has been continuing to date. The Appellant supports himself and lives in a close family unit with his mother, brothers and sister."
"18. Firstly, it is a striking feature of this case that the Appellant arrived in the United Kingdom in 1997 at the age of 17, and has been living continuously with one or more of his siblings ever since. These two aspects of the case immediately distinguish it, on its facts, from both Advic and Salad.
19. Secondly, an equally striking feature of the case is that more than four years elapsed between the Appellant's arrival in the United Kingdom and the Secretary of State's refusal letter. The Adjudicator described the length of time taken by the Secretary of State to make a decision on the Appellant's case as "unreasonable". It is difficult to quarrel with that observation.
20. In our judgment, the facts we have identified in the preceding two paragraphs are manifestly relevant to the IAT's consideration of Article 8, both in relation to the existence of family life and the proportionality of any interference with it. Yet it is clear from the IAT's reasoning (the whole of which we have set out) that it did not bring them into the equation. To put the matter in a slightly different way, the recitation of the Appellant's circumstances contained in paragraph 4 of the adjudication upon which the IAT founds its conclusion that there is no family life (alternatively that it is tenuous and interference by removal from the United Kingdom would be proportionate) appears to leave wholly out of account the highly relevant factors identified in paragraphs 18 and 19 of this judgment." (emphasis added)
Specialist Tribunals and the Courts
"Firstly, this is a highly specialized area of law which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice. Secondly, there is an independent two-tier appellate structure…. After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners. Thirdly, it is essential that that tribunal structure is sufficiently expert to be able to take an independent and robust view, particularly in cases where the government agency has gone wrong. It must be in a position to see through what the relevant sponsoring department is saying when it is arguing the case.
It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success. " (para 15-16)
"(The Commissioners) have practical experience of the day-to-day working of the benefit system and I think that the principles they have devised to give effect to the legislative scheme dealing with overpayments are entitled to great respect."
Such views echo those expressed 30 years ago by Lord Denning MR in R v Preston Supplementary Benefits Appeal Tribunal  1 WLR 625, 631-2, when he urged the courts-
"… to leave the tribunals to interpret the Act in a broad and reasonable way according to the spirit and not the letter… The courts should only interfere when the decision of the tribunal is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision…"
He emphasised that "in order to ensure "uniformity of decision" the courts should remain "ready to consider points of law of general application".
Lord Justice Rix:
Lord Justice Chadwick: