COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE LONGMORE
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Mr Philip Sales QC and Mr Parishil Patel (instructed by the Solicitor to Her Majesty' Treasury) for the Respondent
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Lord Justice Buxton :
Hypothetical decision cases: some general observations
The law in relation to delay: the authorities
Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable on a case by case basis.
That principle has black letter status in English immigration law, and has never been suggested to be inconsistent with this country's obligations under the European Convention.
The Human Rights Act 1998…require[s] the adjudicator 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.  In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional.
Neither of the foregoing was a delay case. Three such cases were put before us.
The whole balancing exercise was conducted without any weight being attached to the fact that the policy being put into one side of the scales would not have been applicable at all but for the delay on the part of the Home Office….To require the appellant now to leave the UK 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 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.
The application for leave to remain in the UK on marriage grounds was accordingly remitted to the Secretary of State to consider without demanding that the application be renewed from Kosovo.
There is no analogue to the special feature of Shala, namely the loss of a distinct procedural right to apply in-country for an extension of leave.
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 which, I apprehend, must have very substantial effects if it is to drive a decision in an applicant's favour: see Anufrijeva  QB 1124.
culpable delay in the administrative processes necessary to determine and to give effect to an article 8 right, the approach of both the Strasbourg court and the commission has been not to find an infringement of article 8 unless substantial prejudice has been caused to the applicant.
That sets a demanding standard. Mr Drabble said that the case was irrelevant to our problem, thus should have been seen as such by Laws LJ, because it addressed the creation of a right under article 8(1) and not factors that affected the legality of interference with that right under article 8(2). I do not agree. The court in Anufrijeva expressed itself in very general terms, and did not confine itself expressly to article 8(1). But, more substantially, the considerations to which the court appealed would seem to apply even more strongly to an attempt to limit a national authority's otherwise proper reliance on administrative policy than they do to a mere casualness or failure to act that places the subject into a position that needs article 8 protection. If "substantial prejudice" is required before the state's inaction creates an article 8 right, something at least as serious would seem to be required before the state is prevented by its inaction from applying a policy that is consonant with article 8.
For completeness I should note that I have had regard to the very recent decision of this court in [Strbac]. However, the factual context was wholly different, because the applicant had no separate claim to be allowed to enter under the rules.
In other words, rejection in Strbac of the attempt to create rights to be in this country out of administrative delay alone is not undermined by the procedural ruling in Akaeke.
The law in relation to delay: a summary
i) Delay in dealing with an application may, increasing the time that the claimant spends in this country, increase his ability to demonstrate family or private life bringing him within article 8(1). That however is a question of fact, and to be treated as such.
ii) The application to an article 8 case of immigration policy will usually suffice without more to meet the requirements of article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].
iii) Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.
iv) In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant's case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke]
v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at §25].
vi) The mere fact that delay has caused an applicant who now has no potential rights under immigration law to miss the benefit of a hypothetical hearing of an asylum claim that would have resulted in his obtaining ELR does not in itself affect the determination of a subsequent article 8 claim [Strbac, at §32].
vii) And further, it is not clear that the court in Strbac thought that the failure to obtain ELR on asylum grounds because of failure to make a timely decision could ever be relevant to a decision on the substance, as opposed to the procedure, of a subsequent article 8 claim. Certainly, there is no reason in logic why that fact alone should affect the article 8 claim. On this dilemma, see further §6 above.
viii) Arguments based on the breakdown of immigration control or of failure to apply the system properly are likely only to be of relevance if the system in question is that which the Secretary of State seeks to rely on in the present proceedings: for instance, where a procedural rule of the system is sought to be enforced against the applicant [Akaeke]. The same arguments do not follow where appeal is made in article 8 proceedings to earlier failures in operating the asylum system.
ix) Decisions on proportionality made by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke].
I find that the appellant has established private life in the light of her relationships with her aunt, brother and [MB], with whom she has a child. I also take into account her successful studies and that she is enrolled on a course at Kingston University…I find that family life between herself and her son has been established. I have greater difficulty with the relationship with her partner. They have not shown the commitment of living together but they see each other regularly. While they lived together for a short time in 2002 [MB] applied for his own accommodation and moved in when he was given it. I accept that [MB] sees his son regularly ands helps with his care, as does the appellant's aunt. In Kugathas  INLR 170 Sedley LJ held that generally the protection of family life under Article 8 involves cohabiting dependants such as parents and their dependant minor children, and whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults would not necessarily acquire the protection of Article 8 without evidence of dependency involving more than the normal emotional ties. I am not satisfied that the relationship between the appellant and her aunt is in the nature of a family life relationship nor is that between the appellant and his partner because of the absence of real commitment.  If I am wrong and family life has been established would removal interfere with the appellant's private and family life?
If I am wrong and removal would interfere with the appellant's private and family life it would be lawful and would pursue the legitimate aim of an effective immigration policy.
The Adjudicator held, referring to the observation of Lord Bingham in Razgar, set out in §12 above, that return would be reasonable and lawful, not least because MB as well as JL came from Sierra Leone. He was shown Shala; found that if JL's case had been considered timeously the applicant would probably have been granted some form of leave to remain in the UK; but held that the case before him was distinguishable from Shala, and that the delay did not alter the general conclusion as to lawfulness under article 8(2). Although the Adjudicator did not specifically so state, he was with respect clearly correct in distinguishing Shala, because in JL it was sought to use the factor of delay to create a substantive right and not merely a procedural protection (see § 24 (iii) and (iv) above); and the Adjudicator could not be criticised for finding that on the facts the delay did not reach the standard of true exceptionality (Huang) or had a very substantial effect on the outcome (Strbac).
Lord Justice Latham:
Lord Justice Longmore: