QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS K STERN (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"In the present case, although the appellant has only been resident in the UK for some eighteen months, this has been during a formative part of his life, and he has spent that time learning English and computer studies. He is very young. He has not been involved in criminal activity either here or in Kosovo. He has no spouse or children abroad who will be making applications to join him. His removal to Kosovo would trigger unhappy memories which could aggravate his depression. He might not be able to obtain the support and counselling he needs in Kosovo. I am satisfied that the legitimate objective of controlling immigration and achieving an ordered society will not be undermined by allowing this appellant to remain in the UK. I am satisfied that his removal would be a disproportionate interference with his physical and moral integrity and private life. I am also satisfied that for humane reasons the Secretary of State should exercise his discretion to grant leave for the appellant to remain in the United Kingdom. I therefore allow the human rights appeal under Article 8."
"The Secretary of State was entitled to reach the conclusion that there would be no inconsistency between the two decisions; that is to say his decision in respect of Mr and Mrs Duka, and the adjudicator's decision in respect of Renols. Just as removal amounted to an interference with Mr and Mrs Duka's right to family life, that interference was proportionate, given the age of the family and the limited evidence of dependency. Renols' leave to remain on medical grounds expires in September 2003. There was no evidence before the Secretary of State that the stability of Renols' mental condition depended upon the continued presence and support of Mr and Mrs Duka. I do not consider, therefore, that the material placed before the Secretary of State rendered his decision either irrational or disproportionate."
"His most effective source of therapeutic benefit (despite all the stresses from other sources to which she herself must currently be exposed) is evidently his sister and her household ... The continued fear of deportation must be exerting a destructive effect both directly and indirectly."
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity."
"The Court finds that the risk that the applicant would suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative."
"Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3."
"The Secretary of State on finding that there are no outstanding representations and that all matters have been fully considered, reminds you that your client continues to have no basis of stay in this country and steps will now be taken to remove him and his family from the United Kingdom."
"Removal of the Duka family is in breach of their rights under Article 8 to enjoy family life because Mrs Duka's brother, Renols Kabashi is dependant upon her due to this psychiatric condition. This condition was recognised by the Secretary of State who following the allowing of his appeal by the Adjudicator under Article 8 ECHR granted him exceptional leave to enter the United Kingdom until September 2003."
"This letter dismissing your further representations does not attract a right of appeal under Section 65 of the Immigration and Asylum Act of 1999 as your client has already been through the one-stop appeal system."
It goes on:
"This letter cannot have been more clear. The fact that the case has not been certified does not affect this issue. Certification would prevent a further right of appeal, if your client was allowed a right of appeal initially. However your client has no right to a Section 65 appeal due to Article 8 as he has been through the one-stop system."
"(1) This section applies where a person ("the appellant") has appealed under ... this Act and that appeal ("the original appeal") has been finally determined.
"(2) If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant's human rights, the Secretary of State may certify that in his opinion-
(a) the appellant's claim-
(i) could reasonably have been included in a statement required from him under section 74 but was not so included, or
(ii) could be reasonably have been made in the original appeal but was not so made;
(b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and
(c) the appellant had no other legitimate purpose for making the claim."
Then, going further down:
"(7) Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.
"(8) The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion-
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.
"(9) No appeal may be brought under ... this Act against a decision on an application in respect of which a certificate has been issued under subsection (8)."
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision."
"Certification would prevent a further right of appeal, if your client was allowed a right of appeal initially."
That is clearly wrong. The fact that he had been through the one-stop system does not preclude a right of appeal, unless the Secretary of State certifies. That is the whole point of certification, and to say as the author of that letter did, was to misrepresent the legal position.
"Mr Mullins invites me to conclude that it was not a claim which reasonably could have been made during the hearing of Mrs Duka's appeal in February 2001, because, by that stage, Mr Kabashi had only been living with his sister for three months and his status was unknown. That is not an invitation I am able to accept. If it were right, the permutations leading to justifiable non-disclosures would be endless. In fact, I find extraordinary that Mrs Duka did not reveal to the adjudicator the fact that her 17-year old brother was living with her and claiming asylum."