STARRED DM (Proportionality – Article 8) Croatia CG  UKIAT 00024
Date of hearing: 9 December 2003
Date Determination notified: 12 February 2004
|Secretary of State for the Home Department||RESPONDENT|
"The Appellant says that he has settled in the United Kingdom. The Appellant is now married, lives in rented accommodation and has been working for the last two and a half years. The Appellant states he met his wife at Christmas 2001, started a relationship in January 2002 and married her just after she attained 16, with the consent of her mother, on 24th August 2002. The Appellant says his wife could not leave the United Kingdom because her family is here and that she would not be able to go to Croatia as she cannot speak the language."
It was submitted to the Adjudicator, and accepted by him in the light of the decision in SK, that it was proper for the Adjudicator to take that marriage into account when considering whether return to Croatia would breach any Article 8 ECHR rights. When the Secretary of State rejected the Appellant's claim in January 2002, he had done so on the basis that the Appellant was not married, as was the case at that time. The Secretary of State simply said that he was not satisfied that the removal of the Appellant would be contrary to the United Kingdom's obligations under the ECHR. There was no explicit reference to proportionality, and no obvious reason why there should have been.
"I am satisfied that the Appellant married Roxanne White on 24th August 2002. I have heard evidence from Roxanne and have had sight of the original marriage certificate."
We read that paragraph as accepting that there was an actual marriage. The Adjudicator later expressed reservations, in the circumstances perfectly understandably, about whether the marriage was in fact a genuine marriage. He said, in paragraph 33:
"Although I am satisfied the Appellant and his wife live together in rented accommodation, it has not been proved to the required standard that their relationship is that of a closely married couple. I noted that the Appellant, at the hearing, believed his wife was still attending a hairdressing college yet the Appellant's wife stated that she had left the hairdressing college in November 2002. I have also noted that the Appellant's wife was only 15 years old when they met and would have been quite impressionable and they appeared to have married in undue haste. I have, as previously indicated, not found the Appellant to be totally truthful and has exaggerated his claims and have no doubt that the speed in which he married was in order to remain in the United Kingdom."
"I believe if the Appellant seeks to apply for entry into the United Kingdom it will test his commitment to the marriage and indicate whether the marriage was for the purpose of settling in the United Kingdom."
"There is no 'group policy' towards Serbian asylum seekers from Croatia and so each case is determined on its own merit.
The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the war-affected areas of Eastern Slavonia, Baranja & Sirmium; the Krajina and Western Slavonia, may be able to substantiate a claim to asylum on the grounds of their ethnicity."
Mr Nathan drew attention to the fact that another seemingly earlier version of the advice said that such Serbs "will" be able to substantiate a claim rather than "may" be able to substantiate a claim. He submitted that, in any event, the effect of the change was not significant, read properly.
"While not every case of an ethnic Serb will meet the Convention criteria, caseworkers should be aware that the likelihood is that many ethnic Serbs will be able to make a case for asylum under the Convention and each application should therefore be considered very carefully before reaching a decision."
"(ii) that Article 8 did not impose on a state any general obligation to respect the choice of residence of a married couple;
(iii) that removal or exclusion of one family member from a state where other members of the family are lawfully resident would not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family;
(iv) Article 8 is likely to be violated by the expulsion of a member of a family that has been long-established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled;
(v) knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious, militates against the finding that an order excluding the latter spouse violates Article 8. Nonetheless whether interference with family rights was justified in the interests of controlling immigration depended on the facts of the particular cases and the circumstances prevailing in the state whose action is impugned."
The approach to determining proportionality
"Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as substantially to undermine the factual basis of the balancing exercise performed by him, it may be impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses; and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State so far as is possible). In the light of Edore v Secretary of State for the Home Department  EWCA Civ 716, INLR 361, we would hold that the correct approach is (a) in all cases except where this is impossible because of the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the adjudicator. Where (a) is impossible, then the correct approach is (b). But we doubt whether, in practice, the application of the two approaches will often lead to different outcomes."
"Although no doubt the Secretary of State at some point in the course of the appeal proceedings must be taken to have decided the question of proportionality against the appellant, the appeal process itself is necessarily directed to his earlier decision."
He then said in paragraph 25:
"I proceed, therefore, on the basis that the Adjudicator and the IAT were entitled to reach their own independent conclusions on the question of proportionality (assuming always that the Article 8(2) stage was reached). Could they, on this basis, reasonably conclude that the interests of immigration control did not require the appellant and family to be returned to Kosovo?"
The Court of Appeal reached the view that the only reasonable conclusion on proportionality which the Tribunal could reach was that removal was proportionate. So it did not feature in fact a decision in respect of which two reasonable but different decisions were possible. Nor did it suggest that the Court of Appeal, on appeal on a point of law, ask itself any question other than whether the decision appealed from was reasonable.
Applying that approach
MR JUSTICE OUSELEY