United Kingdom Asylum and Immigration Tribunal

Dine (ECHR Art 8, Physical And Moral Integrity, proportionality) Kosovo [2002] UKIAT 06638

HX08028-2002

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26/11/2002

Date Determination notified: 19 February 2003

Before

Mr S L Batiste (Chairman)

Mr R Hamilton

Mr P D King TD

Between

The Secretary of State for the Home Department	APPELLANT
and
Dardan Dine	RESPONDENT

DETERMINATION AND REASONS

1. The Secretary of State appeals with leave against the decision of an Adjudicator (Mrs Gurung-Thapa) who allowed the respondent's appeal against the applicant's decision to direct the respondent's removal from the United Kingdom. The respondent is a citizen of the Federal Republic of Yugoslavia.
2. The respondent was born on 10 August 1981. He arrived in the United Kingdom on 6 December 1998 and claimed asylum the following day. He was granted leave to remain until 11 August 2000. He feared that the KLA would harm him if he were to return to Kosovo because he did not fight in the war. He also believed that he would be targeted because his father was the vice director of the LDK in the village and it would be understood that his father had collaborated with the Serbs. The Adjudicator did not consider that the appellant would be at risk of persecution for that reason or on account of his ethnicity if returned to Prizren. The appeal in relation to asylum was therefore dismissed.
3. The Adjudicator went on to consider the aspect of the appellant's human rights and in particular Article 8 of the European Convention on Human Rights.
4. Article 8(1) provides "everyone has the right to respect for his private and family life, his home and his correspondence". The Adjudicator records at paragraph 11 of her determination that the appellant had a girlfriend who was Albanian. She had indefinite leave to remain and he had been going out with her for two years. She was not present at the hearing of the appeal and the appellant indicated that the relationship was not strong and her father thought that he was using her to remain in the United Kingdom. The Adjudicator concluded at paragraph 23 of the determination that family life did not exist.
5. The Adjudicator went on, however, in paragraph 23 to consider the other aspect of Article 8, namely the question of physical and moral integrity. She found that the appellant has established a private life and that to return the respondent to Kosovo would be disproportionate. It was in those circumstances that his appeal was allowed.
6. The appellant, in the grounds of appeal, seeks to challenge the conclusions of the Adjudicator and submits that it is not in accordance with the decided case law. At the hearing before us the Secretary of State was represented by Mr J Jones, Home Office Presenting Officer. The respondent was represented by Mr G Gill of Counsel.
7. In the first ground of appeal the Secretary of State contends that the reasoning of the Adjudicator runs counter to the "starred" decision of Kehinde (01/TH/2668) in which the Tribunal found that it was only the human rights of the appellant and not those of other people which fell for consideration under Section 65. It was contended that the Adjudicator had in her assessment of the situation, taken into account the wider community and as such was in error in law.
8. The reasoning of the Adjudicator is set out fully in paragraphs 23 and 24 of the determination. It is perhaps helpful to set out in some detail her reasoning.
9. At paragraph 23 she says as follows:

"I now turn to consider whether or not the appellant's private life and one component of this is the likely violation to the appellant of his physical and moral integrity. I take into account the following factors. The appellant is a 20-year old male. He has been living in the United Kingdom since 6 December 1998. He was given exceptional leave to remain until 11 August 2000. Thereafter, he made a further application for further leave to remain which was refused and which culminated in this appeal. The appellant was a young man when he entered the United Kingdom with little English. I note that he has established himself in the United Kingdom by furthering his education. He has passed the English course as a foreign language, GCSE maths and three 'A' levels. This has enabled him to do a BSc course at Coventry University. I have seen a letter from the University confirming his enrolment. I also have read a letter from his various tutors at Southwark College confirming that the appellant joined the College in September 1999 and studied for 'A' levels. They state that since the appellant's arrival alone in this country he had managed to support himself through his 'A' level studies without support from family or friends. He did all this alone. The appellant clearly has considerable potential which will only be realised with the continuing good rapport, guidance and counsel he enjoys with the staff at the University. It would be deplorable and tragic to lose a young man of his calibre who gives unconditional dedication, hard work and effort at all times. They further state that they hope he will be given a chance to actively contribute to the economic development and welfare to this country as a responsible citizen he has already shown himself to be. I also note a letter from his employer of the American Pool & Snooker in Coventry. It states that the appellant is a good and willing worker and is a central part of his team. He is well liked and respected by him and his colleagues and if he is not allowed to stay in this country it would be a great loss and he would find it hard to replace him with anyone who has his dedication to work or his willingness to learn. Also submitted is the letter from the Midlands Refugee Council dated 13 May 2002 by the Health Administrator and Coordinator of Interpreting who confirms that she has known him for 18 months through her work with the Refugee Council. As Coordinator of the Interpreting Service the appellant has assisted her with language support as he is fluent in Albanian, Italian and English. She has also recommended him for employment with in the NHS but he has wisely chosen to further his education in pharmaceutical sciences at Coventry University. The appellant is an incredibly mature and resourceful young man and prudent in all his decision-making and always good natured and willing to help. It goes without saying that as an intelligent student with broad interests in medical sciences he will be an asset to our workforce once qualified. Considering these factors I find that the appellant has established private life."

10. The Adjudicator concludes her remarks in paragraph 25 of the determination in this way:

"Finally, I have to consider as to whether or not the decision to remove the appellant is necessary in a democratic society, i.e. the proportionality argument. This in turn involves the balancing of factors in favour of the appellant and of the wider community. I have considered the factors already mentioned above. I find the appellant to be credible in his evidence. I also find that he has been a resourceful young man, has worked hard and clearly has not been idle since he has been in the United Kingdom. He has been successful in his studies which have enabled him to undertake a four-year BSc course in pharmaceutical sciences. He has nearly completed the first year. He has a further three years to go and one year of this is a placement year. I accept that he will find it difficult to obtain entry clearance as a student from Kosovo considering the tuition fees for overseas students. I also find that it would break up his studies which would not be conducive the appellant. I also take into account the fact that the appellant has financially supported himself since being in the United Kingdom without receiving benefits. I have considered and accept the documentary evidence submitted by the appellant. After consideration of the factors and the balancing of such factors I find that the decision to remove the appellant is disproportionate."

11. The Tribunal in the case of Kehinde at paragraph 9 of that judgment indicated as follows:

"The appeal under Section 65 is limited in its scope. The right of appeal is given to a person who alleges that a decision relating to that person's entitlement to enter or remain was in breach of his human rights. An appellant under Section 65 must be the subject of the decision: and it is only his own human rights that he may plead under Section 65 against the decision in question. In an appeal under Section 65, therefore, there is no obligation to take into account claims made about the human rights of individuals other than the appellant or individuals who have not themselves been the subject of a decision which is under appeal. Such matters (save insofar as they relate to the human rights of the appellant himself) are irrelevant to the matter under consideration."

12. Mr Jones submits on behalf of the Secretary of State that comments relating to the "wider community" are inappropriate and inaccurate. He points to a number of passages in the reasoning as set out by the Adjudicator in paragraph 23 of the determination. He submits that the respondent's contribution to the economic development and welfare of the country is an irrelevant consideration. The fact that he may be a good worker and part of a team and a loss to his employer is irrelevant. The fact that the appellant may be an asset to the workforce does not of itself give rise to any relevant consideration under Section 65 of the relevant statute. Thus Mr Jones submits the Adjudicator has adopted the wrong approach.
13. Mr Gill, on behalf of the respondent, submits that such criticism is not justified when taken within the context of the remarks that were made. He invited us to find that the Adjudicator made a very full and fair assessment of all the factors as expressed in those two particular paragraphs of the determination. She was focussing, it is submitted, not upon the interests of third parties but upon the interests of the appellant. She was emphasising by reference to correspondence from various sources, that the appellant was a good and willing worker; a good team player; someone respected; someone dedicated to work and to exhibit a willingness to learn. These were qualities personal to the appellant and directly relevant to his moral integrity and personal dignity.
14. We note that the Adjudicator in paragraph 22 of her determination seeks to follow the advice as given by the Immigration Appeal Tribunal in the case of Nhundu and Chiwera (01/TH/00613) which advice was to the effect that any analysis of Article 8 should involved a step by step approach, first enquiring whether there is a private or family life, whether there is an interference with such a life, whether such interference is in accordance with the law and pursues a legitimate aim and is proportionate. No issue is taken before us as that the interference is not in accordance with the law nor pursues a legitimate aim. The real issue is that of proportionality.
15. It is in this area that difficult choices may have to be made between the rights of the individual and the needs of society. Immigration control is both necessary for a well ordered society and pursues a legitimate aim.
16. It seems to us that the phrase used by the Adjudicator " the balancing of factors in favour of the appellant and of the wider community" expresses no more and no less the balancing exercise, which the Adjudicator is required to perform.
17. We recognise that, taken out of context, certain of the findings of the Adjudicator could be capable of the interpretation that is placed upon them by the appellant, as being directed towards third party interests rather than the appellant's interests. Taken as a whole, however, and taken within context, we find that the remarks and findings of the Adjudicator do not contravene the principals as set out in the case of Kehinde and that there is no error in her approach.
18. The second ground of appeal notes that the Adjudicator has failed to focus adequately on the appellant's circumstances at the date of the decision, as required under Section 77(1) of the Immigration & Asylum Act 1999. At paragraph 25 of the determination the Adjudicator indicates "he is nearly completing the first year". At the date of decision, namely 27 October 2001, the appellant would only have just started the first year.
19. Mr Jones submits that the appellant started his course at Coventry University in September 2001. At the date of the decision he had been there for only a month. His leave to remain was only to 11 August 2000 and he had in fact started a course a year after leave had expired. For the Adjudicator to describe the appellant as a diligent student was to shift the focus away from the date of decision.
20. In that context we have regard to Section 77(4) of the Immigration & Asylum Act 1999. The appellate authority may take into account only evidence which was available to the Secretary of State at the time when the decision appealed against was taken or which relates to relevant facts as at that date. It seems to us that a relevant fact as at the date of decision was that the appellant had embarked upon a course of study. He had done so having learnt English as a foreign language qualification and after having registered and passed a number of 'A' levels in chemistry, physics, biology and maths. These were in itself signs of considerable application and achievement and rightly were highlighted by the Adjudicator in her comments at paragraph 11 of the determination. The course of study upon which he had embarked in September 2001 was a four-year course with a one year placement.
21. It seems to us to be wholly unrealistic in the particular circumstances of this case, to seek to unduly limit the focus of consideration. It was clear by the date of the decision was that the appellant had exercised considerable energy and initiative to his studies and had achieved remarkable results. It was clearly within his contemplation and that of the parties at the time of the decision that he was continuing with his studies into that following year.
22. We recognise that great care must be exercised by Adjudicators in not seeking to avoid the focus of consideration as set out in Section 77(4). Consideration should not be artificial or contrived. As Mr Gill remarked the progress of the appellant's studies confirmed the strength of the appellant's family life and commitment and was a relevant factor well known to the Secretary of State at time of decision.
23. The third ground relied upon by the Secretary of State was that the Adjudicator had given insufficient weight to the need to maintain an effective immigration control. The appellant had been given leave to remain in the United Kingdom until 11 August 2000 and had remained without leave since that time. Reliance was placed upon the dictum of Phillips MR in Amjad Mahmood [2001] IMR8229 in the assessment of proportionality. He submitted that the dictum that a marriage entered into when a person's immigration situation is precarious militates against the successful Article 8 claim must apply a fortiori to the development of a person's private life.
24. We would observe, in fairness to the appellant, that he was not somebody who had sought to evade immigration control or who had remained in breach of his immigration status. He had claimed asylum upon arrival and that claim was in the process of being determined by the Secretary of State and subsequently, after appeal, by the Adjudicator herself. Although the formal leave to remain had expired on 11 August 2000, nevertheless the appellant was entitled under the legislation to remain in the United Kingdom until such time as his claim for asylum had been determined. The more relevant question to be asked in the circumstances of this type of case is what was the appellant supposed to do with himself in the time between arrival and the determination of his appeal. Of course he could have chosen to have done nothing with his life and just waited, making no attempt to better his situation or to improve his circumstances. No doubt if that had happened that would have been the subject of criticism. Rather as indeed the Adjudicator makes clear, he applied himself with diligence to improving his situation and quality of life by learning the language, obtaining qualifications and embarking upon a course of study. When one considers the development of moral and physical integrity it is relevant to note that such developments seldom stand still.
25. It may well argued, as indeed does Mr Gill on behalf of the respondent, that it is a measure of his moral integrity and development,that notwithstanding the uncertainty of his position, he made the best of his opportunities. We recognise that a response of an individual to his circumstances and situation will be a very relevant consideration to be borne in mind by any Adjudicator when embarking upon the difficult task of balancing the interest of the individual against the wider interest of society. We do not detect any error in the approach which the Adjudicator has followed in this matter.
26. The fourth ground of challenge was that the Adjudicator would seem to have placed great emphasis upon the appellant's academic achievements and as such to have had insufficient regard to the case of Holub [2001] Imm AR p242.
27. The appellants in that particular case were citizens of Poland. They and their daughter had been refused leave to remain in the United Kingdom. They had sought to remain on the basis that their daughter was performing very well at her English school and would be disadvantaged in her education if returned to Poland. Reliance was placed in that case upon Protocol 1 of the European Convention on Human Rights.
28. We would observe at the outset that this case is not one which falls to be considered under that particular protocol.
29. The concept of private life within Article 8 has much wider implications than the narrow focus of the protocol. It is submitted on behalf of the appellant that a child's right to education does not carry a right to stay in the United Kingdom. Mr Gill submits that Holub relates only to education and can be distinguished from a wider consideration of private life under Article 8. Although private life includes the right to education it potentially can include much more. It is right to note that in paragraph 11 of the determination the Adjudicator places great emphasis upon the aspect of education. When she considers however the wider context of physical and moral integrity in paragraph 23 of the determination, the Adjudicator places education as but one of a number of other factors to be borne in mind. In particular that he has support from friends; he has a potential which can be realised with continuing good rapport, guidance and counsel. The Adjudicator notes that he is a good and willing worker, somebody clearly who is able to learn and make good use of his talents. She recalls that he is a mature and resourceful young man.
30. We recognise the merit in the criticism which Mr Jones makes of her comments at paragraph 25, when she speaks of the difficulty that he would find in obtaining funds to cover tuition fees for overseas students. Nevertheless we consider that it would be right and proper to view the remarks made by the Adjudicator relating to education within the very detailed situation and circumstances of the appellant as she has outlined in the various passages of the determination to which reference has already been made. It is not simply case of the education, there are much wider considerations at large as indeed the Adjudicator has recognised and has set out.
31. In essence, therefore, the appellant, through Mr Jones, seeks to argue that the Adjudicator failed to evaluate proportionality properly. Mr Gill on the other hand seeks to persuade us that the balancing exercise was properly conducted. The appellant had a substantial private life. He had developed skills. He had lasting community contacts. He had potential for further improvement, study and employment. He did not know what had happened to his family in Kosovo and his contacts for the past few years prior to the decision were relating solely to the United Kingdom. He was no drain on society but had worked to support himself at University and had shown commitment both before and after October 2001. He had taken steps to improve his situation and circumstances and clearly had demonstrated that he had travelled a long way in the development of his own moral and physical integrity. It is argued that to remove the appellant from the United Kingdom would, in those circumstances, be disproportionate.
32. Having considered the determination as a whole and indeed having considered the matters that were placed before us by way of argument, we can find no criticism to be made of the approach of the Adjudicator in this particular case. It has been emphasised in a number of decisions that the balancing exercise must be carefully undertaken and will depend very much upon the individual circumstances of the individual appellant.
33. We find that the situation and circumstances of the respondent in this particular case are exceptional. There were so many factors which the Adjudicator was able to find in his favour in the balancing exercise which she conducted. We make it clear we are not seeking to suggest that any person who undertakes a course of study or forms a relationship will necessarily be able to use such matters to remain in the United Kingdom. Each case must depend upon its own particular facts but in this case we find that the effort made by the appellant, his personal and moral response to his situation and to his environment are such that no criticism can be made of the conclusion of the Adjudicator. Indeed we note that no assistance was afforded to her by the appellant's representatives at the hearing of the appeal as no Home Office Presenting Officer was available. The Adjudicator embarked upon a very difficult task and undertook it in a very clear and constructive way in our view.
34. In the circumstances therefore we uphold the decision of the Adjudicator and dismiss the appeal by the Secretary of State against her decision.
35. One matter that is raised before us is the direction given by the Adjudicator that the appellant be granted indefinite leave to remain. Mr Jones indicated that the normal procedure would be that initially exceptional leave to remain would be granted to a person seeking an appeal in relation to human rights. It was not appropriate for the Adjudicator to seek to interfere in that decision making process. It was for the Secretary of State to determine what leave should be granted pursuant to the decision of the Adjudicator. With that comment we agree. Reference was made to Shareef [2002] UKIAT 953. That is, however, a comment as to the consequences of the Adjudicator's decision and not to its propriety. Our view therefore as to her comment does not affect our view as to the merits of her determination as a whole.

P D King TD