Case No: CO/3497/2002
 [2003] EWHC 521 (Admin)
IN THE HIGH COURT OF JUSTICE			
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 19th March 2003

Before:

THE HONOURABLE MR JUSTICE MOSES
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Between:

	ISMET ALA		
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Miss Frances Webber (instructed by A.S. LAW) for the Claimant
Mr Ashley Underwood QC (instructed by The Treasury Solicitors) for the Defendant

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Judgment
Mr Justice: Moses

Introduction
1.	In this application, brought with leave of the single judge, the claimant seeks an order quashing the decision of the Secretary of State for the Home Department.  That decision certified the claimant’s human rights claim as “manifestly unfounded” in accordance with Section 72(2)(a) of the Immigration & Asylum Act 1999 (the “1999 Act”).  The decision was dated 17th April 2002 but was not sent until 18th June 2002.  The Secretary of State concluded that the claimant was properly removable to Germany under the provisions of the Dublin Convention.  He confirmed that view in subsequent letters dated 5th July 2002 and 27th August 2002.  The claimant contended that to remove him would be to breach his rights under Article 8 of the European Convention on human rights because the removal was disproportionate.  Whether such an argument is manifestly unfounded turns upon the nature of an Adjudicator’s jurisdiction under Section 65 of the 1999 Act.  There was no dispute between the parties but that if the Adjudicator, on an appeal, is entitled to substitute his own decision as to proportionality for the decision of the Secretary of State then the claimant’s claim that his Article 8 rights were infringed is arguable and could not be said to be manifestly unfounded.  On the other hand, if the Adjudicator’s jurisdiction is limited to considering whether the Secretary of State’s decision fell within what is traditionally described as a “discretionary area of judgment” then the Secretary of State’s certification could only successfully be impugned in an application before this court, if it was arguable that his decision was outwith the range of reasonable responses to the question of proportionality.

The Facts

2.	The claimant is an ethnic Albanian from Kosovo.  He is a national of the Federal Republic of Yugoslavia.  He left Kosovo in February 1995, and travelled to Germany where he applied for political asylum.  That application was refused in 1996.  He then entered the United Kingdom, clandestinely, in October 1997.  There too, he made an application for asylum, but withdrew that application.  He was removed to Belgium on 7th October 1997.  He applied for asylum in Belgium but withdrew that application.  He then travelled from Belgium to Macedonia and from there returned to the United Kingdom arriving on 15th October 1997.

3.	On 3rd April 1998 the Secretary of State for the Home Department certified the claimant’s application for asylum under Section 2(1) of the Asylum and Immigration Act 1996.  The German authorities had accepted responsibility for determining the claimant’s claim for asylum.  The Secretary of State gave directions for the claimant’s removal to Germany.

4.	The claimant, like other Kosovans including Besnik Gashi, sought judicial review of the refusal to deal with his asylum claim, a few days after Besnik Gashi.  His claim was deferred pending the outcome of Gashi’s case.  At that time the Secretary of State was granting refugee status to all Kosovans whose claims he was considering substantively and since March 1998, he had not removed Kosovan asylum claimants to Germany.

5.	In March 1999 the Court of Appeal ruled in favour of Besnik Gashi (R – SSHD ex parte Besnik Gashi [1999] 1MM AR 415) The Secretary of State appealed to the House of Lords.  The claimant and others had their claims deferred pending the resolution of that appeal.  By June 1999 peace had been restored to Kosovo although the claimant asserted that his home area of Mitrovice was still not under control.  He said it had formerly been a Serb redoubt.

6.	In the meantime, the claimant had met a British citizen, Jennifer Souter.  She had a 14 year old daughter.  The claimant married Jennifer Souter on 14th August 1999.  On 20th August 1999 the claimant made an application that his claim should be dealt with substantively in the United Kingdom because of that relationship.  He claimed in the alternative for leave to remain on the basis of the marriage.  On 15th June 2000 in R v Secretary of State for the Home Department ex parte Gashi and Gjoka (unreported), the court held that the Secretary of State was entitled to rely on changed circumstances to remove to Germany Kosovans whose claims had not been deferred pending resolution of the Besnik Gashi case.  Following that judgment, the Secretary of State took the view that the judgment applied equally to Kosovans whose cases had been certified before the case of Besnik Gashi.  On 12th October 2000 the Secretary of State withdrew his appeal to the House of Lords in Besnik Gashi.

7.	On 1st November 2000 the Secretary of State wrote to the claimant’s solicitors stating that he took the view that there was now no significant disparity between the approach of the United Kingdom and Germany as regards asylum claims by Kosovan Albanians and asserted that he was entitled to maintain his certificate in the claimant’s case.  He advised that he could find no compelling or compassionate grounds which would cause him to part from his normal policy and practice and that the claimant should return to Germany for consideration of his asylum application under the Dublin Convention. 

8.	On 9th October 2000 the claimant’s solicitors asked for consideration of compassionate circumstances relying upon the marriage, the claimant’s wife’s pregnancy and the killing of members of the claimant’s family in Mitrovice.

9.	On 12th March 2001 the Court of Appeal held in Zeqiri v Home Department [2002] Imm AR 42 that persons in the position of the claimant had a legitimate expectation that their asylum claims would be dealt with substantively in the United Kingdom.  On 1st June 2001 the claimant and his wife’s son Jordan was born.
10.	On 18th June 2001 the Secretary of State refused the claimant’s application for leave to remain in the United Kingdom on the basis of recent marriage to a British citizen. On 22nd January 2002 the Secretary of State rejected the claimant’s human rights arguments based upon Article 3 and Article 8 of the European Convention on Human Rights.

11.	On 24th January 2002 the House of Lords reversed the ruling of the Court of Appeal in Zeqiri [2002] Imm AR 296.  It held that there was no legitimate expectation that claims deferred pending Besnik Gashi would be considered substantively in the United Kingdom and that the re-certification by the Secretary of State of their claims was not unfair.

12.	On 30th January 2002 the solicitors on behalf of the claimant launched the appeal which forms the basis of this application.  The appeal was brought pursuant to Section 65 of the Immigration and Asylum Act 1999.  By letter dated 17th April 2002 which was only sent on 18th June 2002 the Secretary of State decided that the claimant’s reliance on Article 8 was manifestly unfounded and accordingly certified the allegation pursuant to Section 72 (2)(a) of the 1999 Act.  He wrote:-

“3. The question for the Secretary of State is whether the potential interference with your client’s right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system (sic).

4.  Parliament has set a mandatory requirement for a foreign national seeking settlement in the U.K as a foreign spouse to hold prior entry clearance for that purpose.  The Secretary of State attaches the greatest weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exception of circumstances.”

13.	The letter then refers to the decision of the Court of Appeal in Amjad Mahmood [2001] 1 WLR 840.  He continues by referring to the right of the claimant to apply for entry clearance abroad and asserts:-
“The interference to your client’s right for respect to family life would be temporary and would obtain only for the duration of the time it would take for him to apply  for the requisite entry clearance and for his application to be processed.”

	He continues:-

“11. Your client should not profit by his unlawful travel to and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the U.K lawfully.  Were the Secretary of State to permit persons in your client’s situation to remain in the United Kingdom this would run contrary to his duty to Parliament to maintain a credible and effective immigration control.”

14.	On 3rd July 2002 the claimant’s solicitors amplified the circumstances in which the claimant and his wife had found themselves.  The claimant was prevented from working.  His wife could not work because of health problems.  His wife could not go to Germany because of her commitments to her children and because of the adverse consequences for her health.  It was those features which, they contended, distinguished the claimant’s case from that discussed by the Court of Appeal in Amjad Mahmood.

15.	On 5th July 2002 the Secretary of State maintained his decision in a letter which asserted that the claimant was not “in the United Kingdom” for the purposes of the Secretary of State’s policy substantively to consider claims to asylum in the United Kingdom where there are family links.  The claimant, so the Secretary of State said, had no leave to enter or remain nor did he have temporary admission as an asylum seeker.  The letter stated:-
“Your client is a failed asylum seeker who has no status in this country and therefore would not come within the family links policy.”

16.	The Secretary of State, at that time, believed that claimants did not fall within the policy if marriage was contracted after their arrival in the United Kingdom.  That view of his own policy was held to be unlawful in ex parte Nicholas [2002] Imm AR 334.  However, the Secretary of State changed the policy by Parliamentary answer on 22nd July 2002.  The policy reflected his view that those who contracted a marriage after their arrival in the United Kingdom should not be able to rely upon the fact of that marriage as a basis for substantive consideration of their claims to asylum within the United Kingdom.  On 27th August 2002 the Secretary of State reviewed the claim and maintained his original decision.  He relied upon the changed policy.
The Claimant’s Arguments on Proportionality

17.	The claimant contended that there were powerful arguments in favour of permitting the claimant to stay in the United Kingdom at least pending consideration of his asylum claim.  Removal would affect his wife’s health, her ability to manage at home, his stepdaughter’s ability to continue her education in the United Kingdom and the difficulty his wife and stepdaughter would face in relocating to Germany.  Further, delay had frustrated his chances of being granted refugee status in the United Kingdom.  If his claim had been dealt with promptly on application on 20th August 1999, he should have been given the benefit of the family links policy which applied at that time, had it been properly interpreted in accordance with the judgment of Harrison J in ex parte Nicholas [2000] Imm AR 334. In 1997 when he arrived, all ethnic Albanians from Kosovo were being treated as refugees.  Had his application been decided in 1998; it is arguable that the claimant’s asylum claim would have been dealt with in the United Kingdom and he would have been granted refugee status within months of his arrival, or at least by the time he had married.  The claimant’s argument as to the position in 1998 rested on complaints as to the disparity of treatment of Kosovan asylum claims in Germany and the fact that the United Kingdom was not at that time returning Kosovan asylum seekers to Germany, despite certifying them as removable. 

18.	Besides, claimants like Mr Ismet Ala were persons who had laboured under some uncertainty and deserved sympathy (see the comments of both Lord Slynn and Lord Rodger) (paragraph 4 and 63 in Zeqiri in the House of Lords).

19.	Although delay is generally not material (see paragraph 57 in Zeqiri) it might be relevant to consideration of individual circumstances.

20.	The claimant further argues that the importance of requiring entry clearance from abroad as part of firm and effective immigration control has less application in cases where all that is sought is substantive consideration of the asylum claim in the United Kingdom.  The cases are thus distinguishable from those cases to which Lord Phillips MR and Laws LJ referred in Mahmood particularly at paragraphs 55 and 23.  The claimant asserts that this case is not one of “queue jumping”.
The statutory regime
21.	By Section 65 (1) of the 1999 Act:-
“ A person who alleges that an authority has, in taking any decision under the Immigration Act relating to that person’s entitlement to enter or remain in the United Kingdom, racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision.”
22.	By Section 65 (2)(b):-
“An authority acts in breach of a persons human rights if he act, or fails to act, in relation to that other person in a way which is made unlawful by Section 6 (1) of the Human Rights Act 1998.”

23.	Thus, a claimant is entitled to appeal against a decision relating to his entitlement to leave to enter or remain on the ground that the decision was in breach of his human rights provided that he has made an allegation to that effect.
24.	Section 15 of the 1999 Act protects claimants from removal or deportation where they make a claim for asylum during a period beginning with the date of the claim and ending with the Secretary of State’s notice of a decision on the claim.  But by Section 11 (2) there is no prohibition from removal if:-

“(a) The Secretary of State has certified that – 
(i) The Member State has accepted that, understanding arrangements, it is the responsible state in relation to the claimant’s claim for asylum; and 
(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent; 
(b)  The certificate has not been set aside on an appeal under Section 65. 
(3) Unless a certificate has been issued under Section 72 (2)(a) in relation to a person, he is not to be removed from the United Kingdom – 
(a) if he has an appeal under Section 65 against a decision to remove him in accordance with this section pending; or
(b) before the time for giving notice of such an appeal has expired.”

25.	The Secretary of State did certify under Section 11. But the claimant has alleged that that decision breached his human rights.  It is that allegation which gives him a right of appeal under Section 65.

26.	By paragraph 20 of Schedule 4:-
“Appeals under Section 65
20(1) A person is not to be required to leave or be removed from the United Kingdom if an appeal under Section 65 is pending against the decision on which that requirement or removal would otherwise be based.”

27.	The nature of the jurisdiction of an adjudicator on an appeal under Section 65(1) is identified in Sections 65 (2) to (5).  By Section 65 (2):-
“For the purposes of this part (Part IV)
(a) An authority racially discriminates against a person if he acts, or fails to act, in relation to that person in a way which is unlawful by virtue of Section 19B of the Race Relations Act 1976;
(b) An authority acts in breach of a person’s human rights if he acts, or fails to act in relation to that other person in a way which is made unlawful by Section 6(1) of the Human Rights Act 1998. 

(3) Subsections (4) and (5) apply if, in proceedings before an Adjudicator or the Immigration Appeal Tribunal on an appeal, the question arises as to whether an authority has, in taking any decision under the Immigrations Acts relating to the appellants entitlement to enter or remain in the United Kingdom, racially discriminated against the appellant or acted in breach of the appellant’s human rights.
(4) The Adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the Adjudicator or the Tribunal, decides that the Authority concerned –		
	(a) racially discriminated against the appellant; or	
(b) acted in breach of the appellant’s human rights, the appeal may be allowed on the ground in question.”

By paragraph 21 (1) of Schedule 4:-

“On an appeal to him under Part IV an Adjudicator must allow the appeal if he considers – 
(a) That the decision or action against which the appeal is brought is not in accordance with the law or with any immigration rules applicable to the case, or
 (b) If the decision or action involved the exercise of discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, 
but otherwise must dismiss the appeal.
(3) For the purposes of sub paragraph (1), the Adjudicator may review any determination of a question of fact on which the decision or action was based.
(4) For the purposes of sub paragraph (1)(b), no decision or action which is in accordance with the immigration rules is to be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.”

28.	The bar to removal contained within Section 11(3) and paragraph 20(1) of Schedule 4 itself has no effect if the Secretary of State has issued a certificate pursuant to Section 72(2)(a) of the 1999 Act.  This provides:-

“A person who has been, or is to be, sent to a Member State or a country designated under Section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal –
(a) Under Section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights
29.	Article 8 of the European Convention of Human Rights provides:-
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There should be no interference by public authority with the exercise of this right except such as it in accordance with the law and is necessary in a democratic society in the interest 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 rights and freedoms of others”.
The nature of the adjudicator’s jurisdiction on an appeal under Section 65(1) of the 1999 Act
30.	Before certifying under Section 72(2)(a) that the claimant’s appeal invoking Article 8 “is manifestly unfounded” the Secretary of State must decide that the allegation is
 “so clearly without substance that the appeal would be bound    to fail”.
(See Lord Hope paragraph 33-34 in R (Yogathas and Thangarasa) and Secretary of State of the Home Department [2002] 3WLR 1276).  This court, on an application for judicial review, must determine whether the decision was reasonably open to the Secretary of State having regard to the anxious scrutiny which must be deployed where it is alleged a claimant’s rights under Article 8 have been infringed (see Richards J in R (Razgar v Secretary of State for the Home Department [2002] EWHC 2554 (Admin) Court at paragraph 13, a case to which I will have to return later). But although the court is not, in form, seeking to substitute its own view as to whether the claimant’s allegation of the breach of Article 8 must clearly fail, in substance there is no discernable space between this court reaching a conclusion that the claimant has an arguable case and deciding that no reasonable Secretary of State could properly conclude that the case must clearly fail (see Richards J in Razgar at paragraph 14 and R (Changuizi) v Secretary of State of the Home Department [2002] EWHC 2569 at paragraph 46.  Once a court, exercising a judicial review jurisdiction, has determined that a claimant has an arguable case of a breach of his human rights it must follow that no reasonable Secretary of State could conclude that such an argument was bound to fail.
31.	Thus, if this court took the view that a claimant would have an arguable appeal under Section 65 before an adjudicator, it would follow that no certificate ought to have been issued.  The claimant’s allegations before the adjudicator could not reasonably be said to be bound to fail.  In those, circumstances, it is necessary to determine the reach of the adjudicator’s jurisdiction on appeal under Section 65.
32.	Section 65(5) confers power on the adjudicator to allow an appeal if it decides that the Secretary of State has acted in breach of the appellant’s human rights.  In referring to an appeal the section does not suggest that the adjudicator’s powers are limited to review.
33.	Paragraph 21(1) requires an adjudicator to allow an appeal if the decision or action of the Secretary of State was not “in accordance with the law”.  But paragraph 21(3) confers a power on the adjudicator to review any determination of fact on which the Secretary of State’s decision was based.
34.	Thus it is plain that an adjudicator is entitled to reconsider the facts on the basis of which the Secretary of State’s conclusions were founded.  
35.	The decision of Richards J in Razgar (q.v. supra) concerned a dispute of fact.  The claimant resisted his return to Germany on the grounds that it would be detrimental to his mental and physical well-being.  Richards J concluded that there was no or insufficient material on the basis of which the Secretary of State could take a different view.  In those circumstances, it could not be reasonably said that the claimant’s human rights appeal to the adjudicator would be bound to fail.  It would be open to the adjudicator, in reviewing the facts, to accept the medical evidence which the Secretary of State had apparently rejected and upon which the claimant sought to rely.  Razgar, is an example of a case of certification where there was a dispute of fact the resolution of which might lead to a successful appeal.  If the evidence on behalf of the claimant was accepted then it would be open to the adjudicator to conclude, on his review of facts, that the Secretary of State’s decision was not in accordance with the law.  
36.	Similarly in Changuizi the claimant relied upon medical reports all of which suggested that there was a danger of suicide due to the claimant’s post-traumatic stress disorder and major depression.  In those circumstances it could not be said that the claimant was bound to fail.
37.	These authorities, do not, however, assist in determining the reach of an adjudicator’s appellate jurisdiction where there is no dispute as to fact.  If the only question is whether the balance between the need for effective immigration control and the undisputed family circumstances of a claimant should have been struck in favour of the claimant, is it open to an adjudicator to substitute his own decision for that of the Secretary of State?
38.	The solution to the question is to be found, not in the nature of an adjudicator’s jurisdiction but in the nature of the issue to be determined on appeal.  The issue before an adjudicator would be whether the Secretary of State has acted in breach of the appellant’s human rights (see Section 65(3) and Section 65(5)(b).  In the instant case the statutory question posed to the adjudicator by Sections 65(2)(b), (3) and (5)(b) is whether the Secretary of State has, in ordering the removal of the claimant, acted in breach of the claimant’s rights enshrined in Article 8.
39.	The Secretary of State’s decision that the claimant should be returned to Germany for the determination of his asylum claim is an interference with his rights under Article 8.1.  There is no dispute but that the Secretary of State’s decision was taken in pursuance of a legitimate aim, namely effective immigration control.  The issue is whether the Secretary of State’s decision was a proportionate response to the question whether such removal was justified in this particular case.   The obligation upon the Secretary of State to act in a proportionate manner required him to strike a fair balance between the legitimate aim of immigration control and the claimant’s rights under Article 8.  In Samaroo and Sezek v SSHD [2001] UK HRR 1150 at para 24, 1161.  Dyson LJ emphasised:-
“The striking of a fair balance lies at the heart of proportionality.  In Sporrong and Lonnroth v Sweden [1983] 5 EHRR 35, para 69, the court said “The court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights……  The search for this balance is inherent in the whole of the Convention.” (See para 26 page 1161).
40.	The jurisprudence of the European Court of Human Rights recognises that Article 8 affords the decision maker, the Secretary of State, a “discretionary area of judgment” in striking the balance fairly between the conflicting interests of a claimant’s right to respect for family life and effective immigration control.  The Court of Appeal cited with approval Thomas J’s recognition of the discretionary area of judgment in the context of Article 8 (see para 29).   At paragraph 35 Dyson LJ said:-
 “…. the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo’s right to respect of his family life on the one hand and the prevention of crime and disorder on the other.  In reaching its decision the court must recognise and allow to the Secretary of State a discretionary area of judgment.”
He continued:-
“In my judgment, in a case such as this, the Court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State.  The convention right engaged is not absolute.  The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection.  It is true that the issues are not technical as economic and social issues often are.  But the Court does not have expertise in judging how effective a deterrent is a policy of defaulting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences.”
41.	It is true that this is not a case of deportation following a conviction (in Samaroo of drug offences).  But it is a case where the Secretary of State is bound to be better placed to take a wider overall view as to what is needed to ensure that immigration control is effective.
42.	It must be recalled that in Samaroo the Court of Appeal was concerned, not with the appellate jurisdiction of an adjudicator but with the role of the court on an application for judicial review.  The adjudicator is not exercising the residual jurisdiction of judicial review.  Still less is he in the position of the European Court of Human Rights which affords member states a margin of appreciation when considering whether a High Contracting Party is in breach of its treaty obligations under the Convention.  The essential question is whether an adjudicator is entitled to substitute his own decision as to where the balance fairly lies.
43.	The answer is to be found, in my view, in the recognition, acknowledged both by the European Court of Human Rights and the Court of Appeal, that the Convention itself, in the context of Article 8, affords the decision maker, the Secretary of State, a discretionary area of judgment.  The test of proportionality posed by Article 8.2 is whether the decision maker has struck a fair balance.  That test is not affected by the concept of margin of appreciation to be applied by the European Court of Human Rights nor by the nature of the Administrative Court’s jurisdiction.  As Dyson LJ pointed out:-
“The court has clearly said that the issue for it is to determine whether the deportation struck a fair balance between the relevant interests.  That is what proportionality requires.  In my view, the margin of appreciation does not affect the nature of the test to be applied or the question to be asked.” (Paragraph 24).
Similarly the question to be asked by an adjudicator, the test to be applied by him, in determining whether the Secretary of State has acted in breach of the claimant’s rights under Article 8, remains the same as the test to be deployed by the Administrative Court or the European Court of Human Rights itself.
44.	It is the Convention itself and, in particular, the concept of proportionality which confers upon the decision maker a margin of discretion in deciding where the balance should be struck between the interests of an individual and the interests of the community.  A decision-maker may fairly reach one of two opposite conclusions, one in favour of a claimant the other in favour of his removal.  Of neither could it be said that the balance had been struck unfairly.  In such circumstances, the mere fact that an alternative but favourable decision could reasonably have been reached will not lead to the conclusion that the decision maker has acted in breach of the claimant’s human rights.  Such a breach will only occur where the decision is outwith the range of reasonable responses to the question as to where a fair balance lies between the conflicting interests.  Once it is accepted that the balance could be struck fairly either way, the Secretary of State cannot be regarded as having infringed the claimant’s Article 8 rights by concluding that he should be removed.
45.	So to conclude is not to categorise the adjudicator’s appellate function as limited to review.  It merely recognises that the decision of the Secretary of State in relation to Article 8 cannot be said to have infringed the claimant’s rights merely because a different view as to where the balance should fairly be struck might have been reached.
46.	This is not a recognition of an exercise of a discretion by the Secretary of State within the meaning of paragraph 21(1)(b) of Schedule 4 of the 1999 Act.  The ground of appeal under Section 65 is not that the Secretary of State’s discretion should have been exercised differently but that the Secretary of State has acted in breach of the claimant’s human rights enshrined in Article 8.  The concept of a discretionary area of judgment describes no more than an area within which two reasonable albeit opposite conclusions may fairly be reached.
47.	Accordingly I conclude that an Adjudicator, on an appeal based upon Article 8, where there is no issue of fact, is concerned only with the question whether the Secretary of State’s decision the Secretary of State has struck a fair balance between the need for effective immigration control and the claimant’s rights under Article 8.  In order to answer that question he is concerned only with the issue whether the decision of the Secretary of State is outwith the range of reasonable responses.  This conclusion has the merit of support from a starred decision of the Immigration Appeal Tribunal in Noruwa (OOTH 2345 3 July 2001). There was much debate before me as to what appeared to be two conflicting paragraphs within that decision in paragraphs 47 and 54.  But it is plain from another decision, not cited before me in Baah [2002] UK IAT 05998 at paragraph 39, chaired by the same deputy President, that the IAT’s conclusion was the same as my own.
Conclusions
48.	Despite my conclusion as to the nature of the adjudicator’s jurisdiction in determining whether the Secretary of State has acted in breach of the claimant’s human rights, the question as to whether it was open to the Secretary of State to certify the appeal remains.  Many of the arguments of the claimant related to the weight to be attached to different factors on which he relied.  But the mere fact that different weight could have been attached to those factors does not mean that the Secretary of State’s conclusion was outwith the range of reasonable responses to the issue of proportionality.
49.	There was considerable argument as to whether the decision of the Court of Appeal in Mahmood and in particular the importance of the avoidance of queue jumping had any application to this claimant who only sought to remain pending resolution of his asylum claim.  But it was, to put at its lowest, open to the Secretary of State to conclude that if the claimant’s rights under Article 8 prevented his separation from his family for only the comparatively short period while his claim was resolved, how much the less could he be parted should his asylum claim fail.
50.	There is, however, one factor to which, as it seems to me, it is arguable that the Secretary of State paid no heed.  He makes no reference to the issue of delay in his letter dated 17th April 2002 or subsequently in his letter dated 5th July 2002.  He paid no regard to the question as to what would have occurred had the claimant’s claim been dealt with under the previous policy, properly interpreted.  That this is a relevant factor is demonstrated by the decision of the Court of Appeal in Shala v Secretary of State for the Home Department [2003] EWCA 233, a decision of 27th February 2003, which I received after I had drafted a version of this judgment.  The factual content was different but it is plain that the Court attached considerable importance to the consequence that, had the Home Office dealt with the case with reasonable expedience, the Kosovan claimant would either have been granted leave to remain (paragraph 14) or at least the policy of requiring leave to enter on the grounds of marriage from Kosova would not have been applicable (paragraph 16).
51.	Shala is authority for the proposition that the consequences of considerable delay are a relevant factor in striking the balance.  It is, accordingly, in my view arguable that the failure of the Secretary of State to take any account of the consequences of delay in this case, takes his decision outwith the range of reasonable responses to the issue of proportionality.  It is arguable that an adjudicator might, on an appeal to Section 65, so conclude.  In those circumstances I cannot say that any appeal to the adjudicator was bound to fail. Nor could the Secretary of State reasonably reach such a decision.   Accordingly, the Secretary of State was not entitled to certify the appeal pursuant to Section 72(2)(a) and this application must succeed.