England and Wales High Court (Administrative Court) Decisions

CO/5555/2003

Neutral Citation Number: [2004] EWHC 803 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Wednesday 17 March 2004

B E F O R E: MR JUSTICE GOLDRING - - - - - - - THE QUEEN ON THE APPLICATION OF BEKTESHI

(CLAIMANT)

-v- IMMIGRATION APPEAL TRIBUNAL

(DEFENDANT)

- - - - - - - Computer-Aided Transcript of the Stenograph Notes of 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) - - - - - - -

MS J LEIVESLEY (instructed by RICHARD PAYNE AND CO SOLS) appeared on behalf of the CLAIMANT

MR A PAYNE (instructed by THE TREASURY SOLICITOR.) appeared on behalf of the DEFENDANT

- - - - - - - J U D G M E N T
1. MR JUSTICE GOLDRING: The claimant seeks judicial review of the Immigration Appeal Tribunal's refusal of 25th July 2003 refusing him leave to appeal the decision of the adjudicator, Mr Crawshaw, promulgated on 28th May 2003. The claimant asks the Court to quash the Immigration Appeal Tribunal's decision and make a declaration that removal would amount to a breach of his Article 8 rights or, alternatively, remit the matter to the Immigration Appeal Tribunal for reconsideration.

The background.

2. The claimant, who, on any view of this case, is an impressive young man, is an ethnic Albanian from Kosovo. He arrived in the United Kingdom on 23rd July 1998. He claimed asylum the next day. At the time, as is agreed, because of the situation in Kosovo, he suffered the threat of persecution for a Convention reason.
3. In mid 1999 the situation in Kosovo changed. The international peace keeping force was established. In September 1999 the Home Office policy in respect of Kosovo changed. Those in the position of the claimant no longer suffered the threat of persecution. The claimant was only ultimately interviewed in December 1999. His claim was refused on 23rd July 2001. He appealed to the adjudicator. That appeal was dismissed. He sought, as I have indicated, leave to appeal to the Immigration Appeal Tribunal. That was refused, as I have said, on 25th July 2003.

The issue in this application.

4. Only one issue now remains. Did the Immigration Appeal Tribunal err in law in refusing to grant the claimant leave to appeal on the basis that the evidence before the adjudicator demonstrated that the claimant's removal from the United Kingdom would constitute a breach of Article 8?
5. Miss Lievesley, on behalf of the claimant, summarised the basis of the application succinctly. When the adjudicator came to the conclusions he did, she submitted, he did not have the well-known case of Arben Shala V Secretary of State for the Home Department [2003] EWCA Civ 233 in mind. He failed to consider and did not mention first that when he arrived the claimant had a legitimate claim; second, delay or that the fault lay with the Secretary of State; and third, in his conclusions, the decision of Shala.]

The test to be applied by this Court.

6. The test to be applied by this Court, if it is to intervene, is now agreed in the following terms.
7. It cannot intervene on the basis that it would have struck the balance differently from the adjudicator. It can only intervene if it was clearly arguable that the adjudicator's conclusion on proportionality was outside the discretionary area of judgment allowed to him so the Immigration Appeal Tribunal itself erred in law in refusing leave to appeal.
8. It is accepted that Collins J's observations in the Immigration Appeal Tribunal decision of Slimani, cited by Sullivan J in the case of Puspalatha v Immigration Appeal Tribunal [2001] EWHC Admin 333, correctly set out the approach of this Court and the Immigration Appeal Tribunal. Collins J in the starred decision of Slimani said this:

"In deciding whether or not to grant leave to appeal, the tribunal will consider the adjudicator's determination and the reasons given by him or her. It will recognise the need for the most careful scrutiny of any asylum claim but will also, as an expert tribunal, have regard to the evidence put before the adjudicator (and before it if there is any additional evidence which can properly be considered within the Rules). If it decides that, whatever shortcomings there may have been in the adjudicator's determination, there is no real prospect of success, it will refuse leave. All too often, when applications for judicial review are made, the claimant and the judge concentrate on the adjudicator's reasons. Where the tribunal has not assisted by adopting a formulaic approach to its reasons for refusing leave, such a concentration is not only understandable but inevitable and the tribunal has only itself to blame. But where the tribunal has obviously considered the grounds and the appeal, such an approach is with respect less appropriate. In particular, the tribunal expresses the hope that in every case the judge should ask himself whether any arguable error of law may have vitiated the tribunal's conclusion that there was no real prospect of success in any particular appeal and only grant permission if that is the position."

9. As Sullivan J himself said at paragraph 48 of Puspalatha:

"The expert tribunal is the Immigration Appeal Tribunal. The claimant has to show that the tribunal erred in law in refusing leave. Save in cases where the error of law on the part of the special adjudicator should have been plain and obvious, the Immigration Appeal Tribunal is not obliged to root around for alternative ways of putting grounds of appeal."

The relevant documents.

10. The refusal letter of the Secretary of State was dated 23rd July 2001. In it he acknowledged that there had existed the threat of persecution for a Convention reason, but stated that that threat no longer existed. He said too that on the information before him there was no breach of any European Convention rights, although he did not go into any detail.

The claimant's grounds of appeal to the adjudicator.

11. Among other things, the claimant referred to Article 8. He referred to the fact, as was undoubtedly the case, that he was of integrity and worked hard, including as an interpreter for the courts and was "a useful asset to the British community". He referred to his friends in South Wales and that he regarded the area as his home. I am told that by the time of the Secretary of State's refusal the claimant had obtained a diploma in English and had a certificate to drive a cab.
12. It is also the case, as was advanced before the adjudicator, that the claimant's solicitor had from 1999 pressed for leave for him to remain and later for a decision on his claim for asylum.]

The adjudication.

13. It is clear that the history of the claimant once he had arrived in the United Kingdom was gone into in some detail. His personal position was emphasised. The case of Sharma (see above) was drawn to the adjudicator's attention. Submissions were made on Article 8. I should refer to some parts of the adjudication.
14. In paragraph 12 the adjudicator says this:

"The appellant was asked to describe his life in Cardiff to me. He told me he was settled here and self-employed being a taxi driver and interpreter and he had licences to drive for both the Vale of Glamorgan and City of Cardiff. He learned to drive in this country in 1999 and in 2000 got a licence. He was not a driver in Kosovo. He had contact with his family in Kosovo by telephone and told me that he was a Kosovan Albanian Muslim."

15. In paragraph 14 he says this:

"The appellant told me he sent money to his family since February 1999. They would not have income without his assistance and his father who was ill was not able to work."

16. A little later in the paragraph he says this:

"The appellant then told me he was more familiar with Cardiff than Pristina. He had two jobs which helped his family and Cardiff was a good city and the appellant told me he had done nothing wrong and supports all his family ... The appellant told me he did not fear for his life if returned now to Pristina."

17. Paragraph 16 states:

"I heard a submission from the appellant's representative. He told me when the appellant first arrived he was in fear of persecution and had no identity problems. It was pointed out to me that there was a reference from Mr Phillips for the appellant in the bundle. Mr Phillips was now an adjudicator. The appellant had been here for two months shy of five years and he had applied for British citizenship."

18. Paragraph 17 states:

"It was pointed out to me that the appellant had integrity and had actively pursued his claim. There were numerous letters sent and the appellant had sought to have matters promptly dealt with. The delay was no fault of the appellant's but the Home Office's fault. I was directed to the chronology. Others had their claims dealt with. It was pointed out to me that at page 78 of the bundle there was a letter of official complaint about the standard of service and decision making in the appellant's case. The appellant's representative referred to the case of SHALA where Home Office delay was in itself a factor on dealing with proportionality under article 8."

19. Paragraph 18 states:

"The appellant's representative referring to the case of NHUNDU told me that the appellant had a private life which was his family life. His removal would impact negatively in Kosovo. As the appellant had no family, private life under article 8 was relied on. It was also pointed out to me that the appellant had not formed attachments in the United Kingdom conscious of the outstanding decision and this reflected credit on him."

20. At paragraph 26 the adjudicator referred to Article 8. He said this:

"Article 8 protects the right to respect for private life, family, home and correspondence. The article is qualified. The state needs to show that the immigration decision is necessary in order to protect the interests of the community. In order to do this, the interest of the state in pursuing immigration control has to be balanced against the interference with family and private life caused by the decision. The immigration decision must be proportionate therefore to the interference with family and private life."

21. Paragraph 27 states:

"I find that the appellant has no family in the United Kingdom and has therefore not established a family life in the United Kingdom."

22. Paragraph 28 states:

"The appellant came here in July 1998 and was born in November 1979. He came at a young, formative age to this country and has spent nearly five years in the United Kingdom. He fled Kosovo in fear of persecution by the Serbs who were rampaging through the country at the time, killing and raping ethnic Albanians. Since his arrival in 1998 he has perfected his English here so has become very useful as a translator. The appellant is also licensed to drive Hackney cabs in the Vale of Glamorgan and Cardiff City. He uses his linguistic and driving ability to assist social services in Cardiff. I find the appellant is credible, diligent and hard-working and has established a private life in the United Kingdom. I find that the immigration decision to remove the appellant interferes with his private life. I find that the decision is in accordance with the law and is in pursuance of the legitimate aim of immigration control. I find that there are no obstacles or special reasons why this youthful, diligent and hard working appellant would not be able to establish a private life in Kosovo. His linguistic and driving capabilities would certainly be of use in their country, although I have noted from the CIPU report that it is difficult to obtain employment. I have not been persuaded that there would be sufficiently adverse effects on the appellant's physical and moral integrity if he was returned to Kosovo. I find that the immigration decision in this case is proportionate to the interference with the appellant's private life and dismiss the appellant's appeal on article 8 grounds. I do not accept that the appellant had legitimate expectations of remaining in the United Kingdom as a result of his work for the public authorities."

23. That is a reference to a submission then being made, and at one time being made in the application for judicial review, to the effect that the claimant had a legitimate expectation as a result of the work he did, of remaining in the United Kingdom.
24. I return to paragraph 28 of the adjudication:

"It was made clear to me at the hearing that he had sought advice about going on the interpreters' panel from his solicitors and had not formed attachments in the United Kingdom, being only too aware of his immigration status. I do not see how he could have any legitimate expectations therefore of being allowed to remain in the United Kingdom."

25. The grounds of appeal to Immigration Appeal Tribunal as now material state:

"3. It is submitted that the Adjudicator erred in law ...

namely:-

(i) [By rejecting] The Appellant's arguments in relation to private life under Article 8 of the ECHR...

It is submitted that the issue in the case is proportionality and whether the decision to remove [the claimant] is proportionate to the interference with his family and private life under Article 8...

It is submitted that the Adjudicator does not properly apply the law in making his finding that the decision is proportionate and in pursuance of the legitimate aim of immigration control."

26. Paragraph 6 the grounds of appeal allege that there was insufficient reference to the case of Shala in the conclusions of the adjudicator and paragraph 7 to which Miss Leivesley specifically drew my attention stated:

"(i) That the delay on the part of the Home Office in dealing with the Appellant's asylum claim had deprived him of the proper and advantageous determination of the Appellant's claim and that the delay by the Home Office should be seen as an exceptional circumstance which takes the Appellant's case out of the normal run of cases ..."

The decision of the Immigration Appeal Tribunal.

27. The decision of the Immigration Appeal Tribunal (by the acting Vice President Mr Parkes) was to this effect (again as is material to the present application):

"The Claimant arrived from Kosovo hidden in the back of a lorry in July 1998. In view of the conditions in his own country at that time his action was entirely understandable. He claimed asylum. His asylum claim was rejected in July 2001, four years later."

I add it should have been three. I return to the reasons:

"The Claimant has built up a personal life in the United Kingdom which would be interfered with if he were now returned to Kosovo. He, to some extent, relies upon the Court of Appeal judgment in the case of Shala in which the point was forcibly made that gross delay is a factor to be taken into account when proportionality has to be considered. The Adjudicator took these matters into account. The Claimant has members of his family back in Kosovo. He came here as an adult. His services certainly have been appreciated. It does not necessarily follow that a period of [three] years of his life is so great as to indicate that he has created a new life here to the exclusion of his life in Kosovo and which is such as would render it disproportionate to return him. The Court of Appeal did not suggest that any particular period should be conclusive, just a fact to be taken into consideration. The Adjudicator did that and I am mindful that the Court of Appeal on 23rd May 2003 in the appeal of Blessing Edore expressed the view that the Tribunal should not interfere unless the decision of the Secretary of State was outside the range of permissible responses open to him. The Adjudicator in those circumstances seems to me to have been fully entitled to come to the conclusion which he did upon the totality of the evidence before him."

The submissions to me.

28. Miss Leivesley submits that on a proper reading of the adjudication there was no consideration of the two interconnected topics important on the issue of proportionality: first the legitimate claim in the first instance and second, the delay caused by the Secretary of State in considering the claimant's case. She has drawn my attention to the Home Office targets. Delay, she submits, was particularly important in this case because had there not been delay the asylum claim would have succeeded. There were 12 months within which the claimant would have been granted asylum. Additionally, without the delay he would have been granted leave to remain which might have led to the grant of asylum from within the United Kingdom. The only reference to Shala was in paragraph 17 of the determination. The Immigration Appeal Tribunal was in error in failing to recognise the plain shortcomings of the adjudication.
29. As to Shala itself she submits that this case, like that, is exceptional. She draws my attention to Keane LJ's words in paragraph 14.

"14. What is striking about both the decision of the IAT and that of the Secretary of State is that in each the position of the appellant has been equated with that of any normal applicant who wishes to obtain leave to enter on marriage grounds. This comes through very clearly in the passage from the IAT's determination quoted earlier in this judgment. But, as Mr Blake [on behalf of the appellant] has rightly pointed out, the appellant's case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the United Kingdom for a variation in that leave on the grounds of his marriage. The IAT does not appear to have considered that submission, which was clearly put before it as paragraph 11 of its determination indicates. In other words, but for the remarkable delay on the part of the Home Office in dealing with his asylum claim, the appellant would not have fallen into the category where the applicable policy requires an application for leave to enter to be made from outside this country."

30. Miss Leivesley also draws my attention to the observations of Schiemann LJ in paragraph 26:

"The difficulties in a case such as the present arise from the fact that the relevant procedures were designed to take a few months and yet have in practice, through no fault of the applicant, taken the Home Office several years. In such circumstances one must be careful before one allows policies designed for procedures operating in different conditions to become automatically determinative of the fate of a family."

Conclusions:

31. I turn then in the light of Miss Leivesley's submissions to my conclusions. I shall refer from time to time to the helpful submissions made by Mr Payne on behalf of the Secretary of State. I have already said that the approach of this court to the decision of the Immigration Appeal Tribunal is agreed. It is unnecessary to refer further to it.
32. It is clear that the Secretary of State in this case did not consider Article 8 and delay in the refusal letter. The correct approach of the adjudicator in such circumstances is in my view set out in the starred decision of the Immigration Appeal Tribunal in the case of M, [2004] UKIAT page 24. In paragraph 25 of that decision the Tribunal said this:

"We consider, however, that in the light of the authorities to which we have referred that where a decision on proportionality has not been taken by the Secretary of State as here, the Adjudicator is obliged to reach his own conclusion on whether removal would be disproportionate. The first approach has to be followed. The Tribunal, if dealing with an appeal on a point of law, is only entitled to interfere with that decision if it is unreasonable, or fails to follow the guidance of the Tribunal or higher authority. The ability to reach an independent conclusion does not belong to each appellate body in turn."

33. In paragraph 27 the Tribunal said this:

"In each case, however, the appellate body has to have regard to the interests of immigration control, and it will usually be a very weighty consideration indeed."

34. In paragraph 28:

"The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala [see above], Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances."

35. I agree, as Mr Payne submits here, that what effectively is being said by the claimant is that no reasonable Secretary of State could conclude other, on the facts of this case, but that the claimant's Article 8 rights were infringed.
36. It is necessary, in my view, to consider what Shala actually decided.
37. Paragraph 14, to which I have already referred, sets out several significant features on the facts of that case. First, there was a legitimate purpose on entry. Second, the delay was exceptional; four years. Third, a consequence of that delay was that the claimant could not apply for leave to remain from within the United Kingdom. Had exceptional leave to remain been granted, he could have applied on his marriage from the United Kingdom. The appellant's family [my emphasis] and private life had been significantly established due to this delay. Fourth, none of these features was considered by the Secretary of State or the Immigration Appeal Tribunal in their consideration of proportionality.
38. It is readily apparent that this case is not on all fours with Shala.
39. It seems to me moreover that the Immigration Appeal Tribunal was right in the observations it made in the case of J 2004 UKIAT page 16, a decision which was notified as recently as 6th February 2004. It is not necessary to go into the facts. In that case some guidance was being given to adjudicators in their approach to this topic. I shall confine myself to setting out the conclusions. Paragraph 38, which is headed "Summary of conclusions on the Shala delay point" states:

"38.(i) In conducting the balancing exercise under Art 8 the existence of any unreasonable period of delay is ordinarily a relevant factor, although given the margin of discretion accorded to the interest of the Secretary of State in the maintenance of effective immigration control, this will rarely be a decisive factor unless accompanied by other special circumstances which disclose particular prejudice to the claimant.

(ii) The Shala point can be extended to apply to close family relationships other than marriage relationships.

(iii) The Shala point only covers delay underpinned by special or exceptional circumstances and which is predicated on three things:

(a) the fact that the appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined;

(b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain;

(c) the fact that his private or family life had only become significantly established as a result of the time spent by him in the UK where he formed a relationship. Accordingly possession of ELR, if it had been granted when it should have been, would thereby have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship.

Thus the Shala point depends on the existence of all three preconditions and has little or no application in other contexts."

40. It is worth noting too what is said at paragraph 29 in the case of M (see above). That paragraph is the first of several in which the tribunal is applying the approach which it had defined as the appropriate one.

"29. We deal first with the contentions in relation to Shala, recognising that the impact of delay on the consideration of proportionality is relevant to both private and family life, [my emphasis] although the weight to be given to it is likely to be very much greater in the latter than in the former."

This case of course only concerns the claimant's private life.

41. I turn now to the decision of the Immigration Appeal Tribunal in which leave was refused. It was, as my summary has indicated, a reasoned and detailed decision. Among other things, Shala was referred to. Mr Parkes concluded that the adjudicator was entitled to come to the conclusion, on all the evidence, that he did. As to the adjudication, I remind myself that it is not open to each tribunal to interfere with the independent decision of another tribunal on the issue of proportionality unless it is outside the legally permissible range of decisions open to it. If here the removal could reasonably be regarded as proportionate then it is lawful.
42. In my view on a proper analysis the adjudicator adequately took into account all the relevant features of the claimant's case. The decision he took was open to him. I say that for several reasons.
43. First, the adjudication must be read as a whole. It is artificial simply to read paragraph 28 in isolation and out of context.
44. Second, the extent of the claimant's private life in the United Kingdom was gone through in detail before him.
45. Third, as paragraph 17 of the adjudication makes plain the fact of delay was pointed out to him; also that it was the fault of the Home Office.
46. Fourth, again, as paragraph 17 makes plain, Shala was drawn to his attention. He correctly summarises its effect in that paragraph.
47. Fifth, he refers to and correctly summarises Article 8 in paragraph 26. In the next paragraph he finds the claimant has no family life in the United Kingdom.
48. Sixth, among other things, in paragraph 28 he refers to the fact that the claimant has been in the United Kingdom for five years, that he fled persecution, that there were no bars to him in establishing a private life in Kosovo.
49. Finally, he carries out the balancing exercise required. It seems to me inconceivable that when doing so he did not have in mind all the factors to which I have just referred, or that he did not have in mind in particular the legitimate claim on entry, the delay by the defendant, its effect on the claimant and the extent of the claimant's private life. After all the appeal before him was substantially, although not at the time entirely, based upon all those aspects.
50. In short, therefore, I have concluded that this application must fail.
51. Before leaving this case I would, however, like to make some brief observations. Although the claimant's case does not succeed in law, any consideration of these papers reveals a hard-working young man who has made a considerable contribution to the community where he has lived for the past few years. No doubt the Secretary of State in considering whether he might exceptionally be permitted to remain will consider that feature.
52. Yes, Miss Leivesley.
53. MS LEIVESLEY: My Lord, the claimant would ask for application for permission to appeal.
54. MR JUSTICE GOLDRING: I am going to refuse the application for permission, of course you may review it before the Court of Appeal. Do you want me to make any orders so far as costs are concerned?
55. MS LEIVESLEY: No orders as to costs.
56. MR JUSTICE GOLDRING: Do you have any observations you want to make, Mr Payne?
57. MR PAYNE: My Lord, no.
58. MR JUSTICE GOLDRING: Thank you very much indeed. Thank you both for your submissions.