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 ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/17970/2003]

		Royal Courts of Justice Strand London, WC2
		19th June 2006

1. LORD JUSTICE BUXTON: This is an appeal against a decision of the Asylum and Immigration Tribunal that was promulgated on 2 August 2005. It was brought with the permission of a Lord Justice of this court, that permission being granted in circumstances that I shall have to revert to in a minute. The case has a very long history as does the involvement of the applicant with the immigration authorities of this country. The applicant arrived in this country from Kosovo in September 1998, as did a large number of other people at that time, in view of the disruption that unfortunately was taking in that country. He claimed asylum at or reasonably soon upon his arrival. In circumstances that were extremely unfortunate and which have been the subject of scrutiny in the courts in other cases, the notice of refusal issued by the Secretary of State did not reach him until some 3 years later, in November 2001. He appealed against that notice; again, unfortunately, his appeal was not heard by an adjudicator until June 2003. The adjudicator did not believe what he was told by Mr U with regard to his experiences in Kosovo but took the view that, in any event, even if what he had been told have been correct, it would not amount to grounds for asylum.
2. A claim was also made under article 8 based upon the close relationship that had been developed in this country with the applicant's brother and his family. The adjudicator took the view that the circumstances of that relationship were not sufficient to make it disproportionate to implement in this gentleman's case the imperatives of immigration control.
3. The appeal arises because the adjudicator did not permit further evidence to be given before him either from the applicant or from his brother as to the Article 8 circumstances. He had written evidence from those two people, and in particular from the brother, and took the view that he would not hear anything further.
4. Permission to appeal against that determination was granted by a vice president of the Immigration and Asylum Tribunal, as it then was, on 8 September 2003. He took the view that it had been an error of law not to receive that additional evidence. By that time grounds of appeal had been extended to include what in conventional terms is known as the Shala point, springing from the decision of this court in Shala v Secretary of State [2003] EWCA Civ 233; whether or not the point had been put to the adjudicator or whether or not he was at that time aware of that authority is neither here nor there. The matter proceeded on those two grounds, that is to say the Shala point and the evidential point, and again it had an unfortunate procedural history. As the AIT set it out in its determination at paragraph 20, the appeal was adjourned part-heard on 2 March 2004, re-listed for September 2004, but then again adjourned part-heard with a direction that it should come back before the same tribunal. That did not prove possible, and therefore the tribunal that heard the appeal with which we are concerned was a new tribunal that had not dealt with the matter before.
5. By that time the law had changed and the appeal fell to be considered as a reconsideration pursuant to Article 5(2) of the 2004 Act commencement order made under powers under the Nationality Immigration and Asylum Act 2002. It was confirmed by the tribunal that counsel then appearing for Mr U, Miss Chandran, accepted that there was no objection to that tribunal hearing the matter as a reconsideration. The Home Office presenting officer who was present on that occasion conceded that the adjudicator should have heard the evidence that related to the article 8 claim but his submission was that even taken at its highest, and accepting the content of the witness statements that the claimant wished to adduce, the claimant would not be successful. It was accepted that there was no extant appeal on Article 3 or asylum grounds and therefore the matter was dealt with solely on the basis of Article 8.
6. The tribunal did not consider that what was called the Shala point was of assistance to the claimant. They set out their conclusions in paragraph 51 and explained that in their view that case had been determined strictly on its own facts. They pointed out also that in a case concerned with Article 8 rather than with the immigration status of the applicant, it would only be in an exceptional case that delay could be taken into account in determining whether in the case of a man who did not have the right to remain in this country there were special circumstances which would cause him not to be removed.
7. They then said this at paragraphs 53 to 58 of the determination:

"53. There was an element in delay in dealing with the claimant's application and it is something which the Adjudicator could have taken into account. It was, in no sense, however, a delay which could be characterised as exceptional.

54. The claimant undoubtedly has strong emotional ties with his brother's family. There would, inevitably, be a great deal of disruption to that family life if he were returned. It is, no doubt, unrealistic to expect that the brother's family would relocate to be with him in Kosovo.

55. The claimant is, however, a young physically fit man. As the Adjudicator noted with a qualification in English he will be better placed than many to earn his living in Kosovo. Although it might prove difficult for the claimant to come and visit his brother and family in the UK there appears to be no reason in principle why the brother and his family could not visit the claimant in Kosovo. The brother had, on his own account, already visited Kosovo himself. It was his case that there was no danger in his doing so.

56. In these circumstances we do not consider that it could possibly be said that the imperative proportionality demanded an outcome in his favour notwithstanding that he could not succeed under the rules.

57. Thus we consider that any error of law by the Adjudicator in refusing to receive additional evidence in relation to an article 8 claim could not have been a material error of law.

58. In all the circumstances there was no material error of law by the Adjudicator in this case."

8. It is right to say that the tribunal had accepted as true the whole of the evidence that was given on paper by the brother. In particular, it had summarised the circumstances in paragraph 34 of the decision, accepting that:


"He would be utterly lost if he had to live anywhere without constant contact and emotional support of his brother."

They accepted that that was the force of the statements made to the tribunal.

9. Permission was sought to appeal to this court against that determination. There were two grounds set out. One was described as "procedural impropriety":

"The tribunal adopted an unlawful approach to assessing whether there was a material error or law in the adjudicator's decision which enabled it to consider the issue of proportionality afresh.

Ground 2. There was no lawful basis for the tribunal's findings that 1) the only relevant delay by the respondent was for a period of nine months, 2) there was no special delay by the respondent, and 3) removal would not breach Article 8 ECHR."

10. Those grounds and the supporting skeleton were considered by my Lord, Auld LJ on paper, who ruled that there was no issue of law contained within them fit for consideration by the Court of Appeal. My Lord said this:


"On the issue of the materiality of the evidence wrongly excluded by the Adjudicator, the Tribunal had to consider the content as well as the nature of the evidence in order to determine its materiality, including its possible weight, to the issue of Article 8 proportionality. It is plain from paragraphs 54 to 57 of their decision that they concluded that the evidence would have had no material effect on the issue of proportionality and that therefore such error as there had been by the Adjudicator did not vitiate his decision. The matter, in any event, fell for reconsideration by the Tribunal. On the issue of delay etc, the Tribunal's decisions were purely points of fact."

11. Mr U renewed his application to this court. The Lord Justice who heard that application, which was made by Miss Chandran, considered that the first ground was not of any force because the tribunal had gone on to consider the whole of the case, so as the Lord Justice said:


"…whether they did so at the stage of deciding whether the error was material or in looking at the merits overall, it makes no great difference."

12. The Lord Justice, however, thought that the significant point was in the second ground of appeal and the question of whether there should have been a finding of special delay. He set out at some length the considerations he thought applied to that question, indicating that it should be heard by a tribunal presided over either by Brooke LJ or Laws LJ, they being the Lords Justices principally concerned with the jurisprudence developed since the case of Shala. It therefore appeared that it was going to be that issue that was going to engage this court and that is why, it is quite clear, permission was granted to appeal to this court.
13. That having happened, however, some two weeks ago junior counsel then acting for Mr U communicated to the court and said this:

"Following the lengthy permission hearing in this matter before Carnworth LJ and his Lordship's ruling, I have taken some time to consider the nature and substance of this appeal. I have carefully considered all the aspects and in my considered opinion what lies at the heart of the appellant's appeal is a claim that he was denied a fair hearing of his article 8 ECHR family life appeal. This claim arises principally from the failure of both the adjudicator and the tribunal to hear oral evidence from the appellant's brother on matters which each went on to determine and which concerned the proportionality of removal."

She therefore indicated that in effect the first and Shala ground would not be pursued before this court. It was, I have to say, unfortunate that that reconsideration took place only after and not before there had been the permission hearing before the single Lord Justice. It is quite clear from his judgment that had the only matter ventilated or placed before him been what we will call the article 8 family life appeal, then he would not have granted permission for it to be pursued to this court. Be that as it may, the matter did indeed proceed here on that ground and I will first of all set out the way it appeared to stand on the papers.

14. The complaint in the skeleton argument and throughout appeared to be that the tribunal had erred in law in itself looking at the evidence that related to the Article 8 claim. It will be recalled that Auld LJ had pointed out that it was necessary to look at that evidence in order to determine whether the admitted error of law in not hearing it viva voce was a "material" error, because before the tribunal had jurisdiction to deal with the matter it had to be satisfied that there was a material error of law in the determination of the court below.
15. In order to seek to demonstrate that that had been an erroneous step reliance was placed in the skeleton argument on paragraphs 30 and 31 of the judgment of this court in the case of Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481, in which this court, in a unanimous but obiter view, stated that it was not open to the Immigration Appeal Tribunal, as it then was, in view of its limited jurisdiction to points of law only, to put itself in the position of the lower court and decide the whole of the case as it stood there. The court went on:


"Unless the decision on the point of law determines the case on the basis of the facts already found below, the IAT has to remit."

16. It was not made clear in the skeleton argument that that analysis was disapproved by a subsequent decision of this court in the well-known case of R (Iran), and that despite the fact that that case had indeed been referred to by the single Lord Justice in his judgment in granting permission.
17. The effect of Miftari and R (Iran) read together is that it is no longer correct to say, as was argued in this case, that the Asylum and Immigration Tribunal may not look at the factual evidence at all. There are two other reasons why that argument was misplaced in this case. The first is that the procedural regime has changed to one of reconsideration since the AIT took over from the Immigration Appeal Tribunal. The second is that even if the case of Miftari were applied to this case (and as I have indicated it should not have been) the scrutiny of the evidence that the tribunal engaged in in this case was as my Lord, Lord Justice Auld, pointed out in his written refusal of permission, a scrutiny of the evidence in order to determine whether a point of law arose at all. That is to say, whether the omission of the evidence was material to the outcome of the case. Such a reference to the evidence was, I venture to say, plainly envisaged even in Miftari. It therefore appeared that the appeal was, not to put too fine a point on it, unarguable.
18. Today we have had the benefit of submissions from Mr Gill QC. He has taken what I have to say appears to be an entirely different point or rather two points. He complains about paragraph 55 of the AIT's decision, already set out, and says I think two things. First, it was not open to the tribunal in the circumstances to look at the question of whether the brother and his family could visit the claimant in Kosovo. That was a matter of the substance of the inquiry, which should have been remitted to the tribunal below. Even if that were not the case, in dealing with that point, this tribunal had acted unfairly because the suggestion that the brother and family could visit the claimant in Kosovo had never been raised and had not been investigated in evidence or cross-examination; it was simply unfair for the tribunal to deal with it. If they were going to allow that matter to affect their minds, that was a clear reason why the matter should be remitted to the court below.
19. Despite Mr Gill's valiant efforts to spell that point out of the case as it previously stood, the nearest that he came to it was a complaint in paragraph 16 of the supplementary skeleton argument, filed in this case I think on 6 June, a long time after the matter had been set down for hearing in this court. That said:

"A fair hearing of the appeal would have entitled the Appellant's brother to have had this prospect put to him and he would have been entitled to respond. However this was not done."

20. As I say, that is the first indication of this point; it was not taken in the grounds of appeal nor was it mentioned in the statement required to be filed pursuant to paragraph 4(14)(a)(ii) of CPR PD 52, where the applicant is required to set out the basis upon which they can claim of the refusal of permission on paper by the single Lord Justice; and it is no doubt for that reason that it is really impossible to find the point addressed anywhere in the judgment of Carnworth LJ, who granted permission in court.
21. I am therefore of the view that this point cannot be taken in this application. However, since this is an immigration case and since there is no doubt on the evidence that the claimant is in a difficult position, I would not shut the point out on that ground alone, unsatisfactory though the history of the matter is. But I do say this about it. As my Lord pointed out in the course of argument, the tribunal accepted in the applicant's favour really every point that was made on his behalf. They understood fully the difficulties that he had. They did not go into the matter in a great deal of detail in the paragraphs at the end of their determination, which I have set out, because they had rehearsed the matter at considerable length earlier on in the determination. It seems to me impossible to say that their view was materially changed by the point that they took about visiting Kosovo.
22. In the light of the determination as a whole, this is essentially an additional but not conclusive point that the tribunal takes. The fact that it had that somewhat modest status in the determination is heavily underlined by the fact that nobody has complained about it until very recently, despite the intense scrutiny that this determination has undergone before two Lords Justices, and with a mass of skeleton argument.
23. Furthermore I do not accept the argument with which Mr Gill opened the appeal, that the tribunal had erred in law by, as it were, making up its own mind about the materiality of the evidence as a whole rather than asking itself whether any adjudicator could possibly have taken a view in the appellant's favour. In paragraph 56 the latter was in fact their conclusion. I repeat it:

"In these circumstances we do not consider that it could possibly be said that the imperative of proportionality demanded an outcome in his favour notwithstanding that he could not succeed under the rules."

24. That is a determination that no reasonable tribunal could conclude that article 8 required the withholding of immigration action, rather than simply a statement that that is the view of this tribunal itself.
25. Looked at as a whole, there is no error either of fairness or of analysis on the part of the immigration tribunal. I would therefore dismiss this appeal. The original grounds for it are unsustainable and those that have been ventilated this morning, new as they are, deserve consideration but that consideration looked at as a whole shows that they are unsustainable also.
26. LORD JUSTICE AULD: I agree.
27. LORD JUSTICE RICHARDS: For reasons given by my Lord, Lord Justice Buxton, I too agree the appeal should be dismissed. It is therefore dismissed.

Order: Appeal dismissed.