|Judgments - E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department
HOUSE OF LORDS
 UKHL 41
on appeal from:  EWCA Civ 1713
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Richard Drabble QC
(Instructed by Immigration Advisory Service)
Philip Sales QC
(Instructed by Treasury Solicitors)
16 AND 17 APRIL 2008
WEDNESDAY 25 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department
 UKHL 41
LORD BINGHAM OF CORNHILL
Appeals on article 8 grounds
"In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests 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 the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
In practice the fourth and fifth questions are usually, and unobjectionably, taken together, but as expressed they reflect the approach of the Strasbourg court which is (see Boultif v Switzerland (2001) 33 EHRR 50, para 46; Mokrani v France (2005) 40 EHRR 5, para 27; Sezen v Netherlands (2006) 43 EHRR 621, para 41) that
"decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued."
"In our judgment, the recognition in Advic [(1995) 20 EHRR CD 125] that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Art 8 is or is not engaged in a given case."
As Owen J observed in Mthokozisi v Secretary of State for the Home Department  EWHC 2964 (Admin), para 28, "of course all will turn on the facts of the individual case".
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."
There was of course nothing novel in this. In R (Mahmood) v Secretary of State for the Home Department  1 WLR 840,  INLR 1, para 23, Laws LJ had recognised that "Firm immigration control requires consistency of treatment between one aspiring immigrant and another". In a complex and overloaded system perfect equality of treatment between applicants similarly placed will be impossible to achieve, but startling differences of treatment between such applicants, or anything suggestive of randomness or caprice in decision-making, must necessarily give grounds for concern.
"It is unnecessary for present purposes to attempt to summarise the Convention jurisprudence on article 8, save to record that the article imposes on member states not only a negative duty to refrain from unjustified interference with a person's right to respect for his or her family but also a positive duty to show respect for it. The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their own decisions. But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment."
With reference to proportionality it was said (para 20):
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality."
"Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal"
The adjudicator's decision
"I find that he had not made a claim for article 8 protections by mentioning in his interview that he had a girlfriend or that she was pregnant or that he did not wish to leave. I find - following withdrawal of the claim for asylum - the appellant even on the low standard of proof I apply has failed to establish there is for him an objective risk in this case of serious harm for a convention reason. I find that the removal of the appellant at this stage would not be disproportionate and would be a lawful pursuit of the policy of effective immigration control."
The adjudicator observed in para 26 that there was nothing to indicate that articles 2 or 3 would be breached if the appellant were returned to Kosovo, and he continued:
"27. The situation is such that he has on this evidence a family life. He has chosen not to make any attempt to contact his family in Kosovo but he no doubt has a family life with his uncle and his girlfriend here. Article 8 is engaged. It would suffer if he returned. He would no longer be with his uncle. Article 8 would be breached. However it would not be breached fundamentally. He could return with his girlfriend. She is Somali. She looks at least Asian he says by relatively light skin tone. She could return with him. He says she would receive racist treatment. I am not referred to any cogent evidence of that. It may be that she may receive such racist treatment here if it amounted to verbal abuse. It may not. All of this is to be frank speculation on the part of the appellant. It does not establish that she cannot return with him. No doubt they would economically be worse off but that is not the point.
28. Even were she not able to return with him she has family in the UK including mother and brother. She has their support as well as the uncle of the appellant and a home and some income. The issue then becomes one of whether it would be proportionate to return him given the need for an effective immigration policy. He would also as I understand it have to show that the breach if anticipated would be a serious one - some say as serious as to make it inhuman and degrading treatment contrary to article 3. He cannot do that. He would be able to telephone. He would be able to write. He is not married. He can apply to come in to the country in the normal way. The child of the witness Miss Qureshi is young and cannot have yet bonded with him at one year old.
29. There is a child to the family. There is another on the way. However that does not mean he should not be returned according to the laws of the UK.
30. There are no exceptional grounds for allowing the appellant to remain although he has been here nearly 5 years and has a family life of sorts. The fact of the matter is that the girlfriend could go with him to Kosovo. Even though she prefers not to for entirely understandable reasons, those reasons do not amount to a risk of human rights abuse arising in either her case or his."
The AIT decision
The Court of Appeal decision
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
"[T]he Court notes that the applicant has never held a Netherlands provisional admission or residence title and that the relationships relied on by her were created at a time and developed during a period when the persons involved were aware that the applicant's immigration status was precarious and that, until Mr G complied with the minimum income requirement under the domestic immigration rules, the persistence of that family life within the Netherlands would remain precarious. This is not altered by the fact that the applicant's second request for a residence permit to stay with Mr G filed on 1 November 1991 was left undetermined for a period of more than seven years because her file had been mislaid by the responsible immigration authorities . . ."
In the yet more recent case of Nnyanzi v The United Kingdom (Application No. 21878/06, 8 April 2008) the applicant submitted in support of her article 8 private life claim that "the State was responsible for several instances of delay during the processing of her asylum claim and subsequent human rights appeal, which rendered her case exceptional. She had been living in the United Kingdom for almost ten years". (para 70). In rejecting the claim the Court said:
"Her stay in the United Kingdom, pending the determination of her several asylum and human rights claims, has at all times been precarious and her removal, on rejection of those claims, is not rendered disproportionate by any alleged delay on the part of the authorities in assessing them." (para 76).
"[I]t is not the function of the Court to discipline or punish the Secretary of State and his Department. The Court's task is not, I think, to pass a judgment on the nature and characterisation of the delay, but on the nature and strength of [the appellant's] rights under article 8 including those resulting from the delay. Because the balance to be struck is between the nature and strength of the applicant's article 8 rights as they have become and the need to maintain consistent and fair immigration policy and procedure which remains broadly constant notwithstanding delay in individual cases, I am not personally convinced of the logic of the proposition that extreme individual cases of delay may for that reason alone diminish the balancing strength of the policy and procedure."