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Cite as: [2004] UKIAT 00084, [2004] UKIAT 84

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APPEAL No. RH (Human Rights Appeal – Risk of Removal – Variation of Leave) Serbia & Montenegro [2004] UKIAT 00084

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 23 March 2004

Date Determination notified: 26 April 2004

Before

Mr M W Rapinet (Chairman)

Mrs J Harris

Between

Secretary of State for the Home Department	APPELLANT
and
RH	RESPONDENT

For the appellant : Miss K. Evans, Home Office Presenting Officer

For the respondent : Mr J. Patel, counsel, instructed by Malik & Malik

DETERMINATION AND REASONS

The Secretary of State appeals by leave of the Tribunal against the determination of an Adjudicator, Mr M.B. Hussain, allowing the respondent's appeal against the decision of the Secretary of State to refuse to vary leave to remain. The grounds of appeal are in the bundle before us.

The respondent and his family (who are from the Federal Republic of Yugoslavia) arrived in this country in 1998 and claimed asylum. The respondent was granted exceptional leave to remain until 18 August 2000, in line with the then current Home Office policy relating to those from Kosovo. His application for asylum was refused and a refusal to vary leave to remain was served on the 16 September 2002. The respondent appealed the decision to refuse asylum and the decision to refuse to vary leave. The Adjudicator has dismissed the asylum appeal but allowed the appeal on human rights grounds for the reasons which are set out in paragraph 16.

The Secretary of State in his grounds of appeal points out that under Section 69(2) of the Immigration and Asylum Act 1999 it is necessary for the respondent to show that not varying his leave would be in breach of his human rights. The Secretary of State by reference to the case of Mehmetaj (01/TH/0109) maintains that the Adjudicator has erred by considering that removal would be in breach of the respondent's human rights. There are no removal directions in force and the Adjudicator states 'I presume that if the appellant's appeal fails the Secretary of State will seek to remove him as an overstayer'. The Secretary of State maintains that this is pure speculation as there are no removal directions currently outstanding. There is no cross appeal by the respondent in respect of the dismissal of the asylum appeal.

It should be noted that the respondent's wife has made a separate application to remain under the Refugee Convention in her own name and that that application has not yet been determined. There are two children of the marriage and it would appear that due to the state of the wife's health the respondent has undertaken responsibility for caring for the children. This is apparent from paragraph 14 of the determination.

The Adjudicator, although it is not clear from the determination, in paragraphs 16 and 20 would appear to have found that there is a breach of Article 8 if the respondent were to be returned to Kosovo.

Miss Evans in her submission indicates there is nothing in the evidence before the Adjudicator or before us to indicate that the respondent would be required to leave the United Kingdom. He was entitled to remain until he had gone through the appeal process. His wife has an outstanding claim and the Secretary of State would not remove the respondent whilst the wife's application was pending. If the appellant were to be returned to Kosovo it would be as head of the whole family who would also be required to return. She refers us to the case of Mehmetaj to which reference is made in her grounds of appeal.

In the alternative she submits that the Adjudicator's decision is unsatisfactory as he has not referred to any of the authorities and has not made it clear whether or not he has considered the application under Article 3 or Article 8 or under both Articles. He seems to have adopted Article 8 on the basis that it would be disproportionate to remove the respondent whilst his wife and family remain in this country but there is no question of the respondent being removed whilst the wife's application for asylum is being considered.

Mr Patel points out that under Section 69(2) of the Immigration and Asylum Act 1999 and also under Section 61 of that Act the respondent has a right of appeal because, as a result of refusing to vary his leave to remain, he may be required to leave the United Kingdom within twenty-eight days of being notified of the decision. If he does not leave he becomes an overstayer and could be arrested at any time by the police and would then only have the right to appeal to the Chief Immigration Officer for leave to remain. If he is removed he will leave behind his wife and children in circumstances which would make it disproportionate to remove him because of the reasons set out by the Adjudicator in paragraphs 14 and 16 of her determination. The wife's medical condition is clearly serious and necessitates the respondent remaining at home to look after the children. He submits that there is adequate supporting evidence in this case to show that removal of the respondent would be in breach of Article 8 and possibly also of Article 3.

In our view the Adjudicator has not erred in allowing the appeal under the Human Rights Act. The Court of Appeal in the case of Saad Diriye and Osorio [2002] INLR 34, made it clear that asylum grounds of appeal have to be determined on the hypothetical basis of whether or not an appellant would face a real risk of persecution as at the date of hearing, even though he may not be required to leave the country because of a current leave to remain but the same considerations do not apply to an appeal based on human rights grounds. As the Tribunal stated in the case of P [2003] UKIAT 00017:

'Whilst Strasbourg has identified the proper test as being, like that under the Refugee Convention, one of current risk to be assessed as at the date of hearing, the obverse side of this recognition is that the risk has to be shown to be an imminent one.'

Section 69(2) of the Immigration and Asylum Act 1999 states:

'If as a result of a decision to vary, or to refuse to vary, a person's limited leave to enter or remain in the United Kingdom, he may be required to leave the United Kingdom, within twenty-eight days of being notified of a decision, he may appeal against the decision to an Adjudicator on the grounds that such a requirement would be contrary to the Convention.'

Section 61 states:

'A person may appeal against the decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which he has if, as a result of that decision, he may be required to leave the United Kingdom within twenty-eight days of being notified of the decision.'

In this case the respondent was granted exceptional leave to remain until 18 August 2000. The respondent applied for an extension of that leave upon its expiry and on 16 September 2000 the Secretary of State decided to refuse to vary leave by extending as requested by the respondent. From that date on the respondent came within the provisions of paragraph 69(2) of the 1999 Act and of paragraph 61 of that Act. He could be required to leave the United Kingdom at any time and his status now is therefore totally uncertain.

It is correct, as Miss Evans argues, that in the case of Mehmetaj the Tribunal decided that the Adjudicator was wrong in finding that it would be contrary to the respondent's rights under Article 3 to do other than to guarantee him a right to remain in the United Kingdom. But in that case there was no risk of the respondent being removed because he had an exceptional leave to remain until 9 July 2004 when the case came before the Adjudicator in June 2001. The Tribunal states:

'The question is whether there is any real risk that anything in his case might make his getting no more than three years assured protection from this country amount to "inhuman or degrading treatment". We can see nothing in the evidence here to show that the fact that he may have to make provisional, rather than absolutely firm plans for his future to do so. If there are any cases where he could, which we cannot presently imagine, then they must be wholly exceptional.'

In the case of P the Tribunal dismissed the appeal but not on the basis that the issue before it was not judiciable but on the basis that the appellant had limited leave to remain which had expired by the time the case came before the Adjudicator, and therefore he was at imminent risk of removal, and removal would, in that case, have amounted to a breach of his human rights. In the case of A [2003] UKIAT 00063, the Secretary of State's appeal was allowed on the basis that breaches of human rights were not judiciable before the Adjudicator because at the date of the hearing the respondent had exceptional leave to remain. In paragraph 9 of that determination the Tribunal states:

'It does not seem to us therefore that the submission made by Mrs Fama in this respect is sustainable. It may be that, in considering whether the risk of removal is an imminent one, nothing les than the issue of removal directions by the Secretary of State would suffice. That is not a matter which it is necessary for us to come to any concluded view on in having regard to the particular facts of this case where it is clear that on any basis there is no question of imminent removal, Mr Hutton having made it clear to us that the question of extension of exceptional leave to remain by reason of the factual finding as to the age of the respondent has not yet been considered by the Secretary of State simply because these proceedings were pending and remain to be resolved.'

It is quite clear from the three cases to which we have referred and in particular the case of Mehmetaj on which Miss Evans relies, that if there is no question of the respondent being in danger of imminent removal, the claim under the Human Rights Act is not judiciable before us or before the Adjudicator.

In this case, however, the respondent at present has no status. The Secretary of State has refused to vary his leave to enable him to remain in this country during the period until a decision has been taken with regard to his wife's claim for asylum and any appeal process that may arise out of that decision. As Mr Patel points out, he could at any time be picked up by the police and deported. It may well be that there are no removal directions but with respect to Miss Evans, we do not think that that is relevant. The point is that as at now the respondent has no right to remain in this country. Miss Evans has argued that he would not be returned pending the outcome of his wife's application for asylum but she has not given us an undertaking that he would not be returned, and if the position is that he will not be returned pending his wife's application we can see no reason why his leave to remain cannot be extended until that application has been finally determined. So far as he is concerned, in lodging this appeal he has used up the totality of his right of appeal and in the event of an adverse decision to him by this Tribunal, and possibly by the Court of Appeal if the matter goes further, then he has no further right to remain in this country. He is at imminent risk of removal.

In our view, therefore, in the circumstances of this case, the matter is judiciable. We would therefore not uphold the Secretary of State's grounds of appeal on this point.

So far as the Adjudicator's decision under the Human Rights Act is concerned, we accept that it is not clear whether he has reached his decision under Article 3 or under Article 8, though reading paragraph 16 it would appear to us to be under Article 8. It is apparent that he has not fully considered the provisions of that Article and the guidelines set out in Mahmood. That is a matter which we ourselves can rectify. He comes to the conclusion that there is a family life in this country and with that we concur. He also comes to the conclusion that to return the respondent would be an interference with his family life and with that conclusion we would also concur. He goes on to state at paragraph 16

'Given the serious condition of the appellant's wife (the medical report says that she would have been hospitalised had it not been for Mr Hupi's case) and the very significant role he plays in his family's life, I am inclined to the view that any removal in those circumstances would not be proportionate.'

In his concluding sentence at paragraph 6 he states:

'In view of the uncertainty over whether the whole of Hupi family are likely to be removed or whether it is just Mr Hupi that is likely to face removal, the only finding I could make is that if whilst Mrs Hupi and the children remain in the UK he is removed from here, then there will be a disproportionate interference with their family life.'

The question of the removal of Mrs Hupi and her children in conjunction with the respondent does not come into the equation at the moment as their position is still under consideration by the Secretary of State. The matter to be considered is whether or not the removal of Mr Hupi would be an interference with a family life established in this country and whether or not it would be proportionate.

Paragraph 14 refers to a medical report from which it is clear that Hupi's state of health is such that her husband has 'taken on the role of the main care of his wife and his two children, a boy of six and a baby girl of seven months. Mrs Hupi has not been able to do many household tasks due to her symptoms of depression and anxiety. If not for Mr Hupi, Mrs Hupi would probably require a hospital admission in my opinion.'

That medical evidence has not been challenged either before the Adjudicator or before us and on the basis of that evidence we would entirely concur with the Adjudicator's decision that to remove Mr Hupi would be disproportionate and would be in breach of his rights under Article 8. He has commitments by reason of his marriage and his parenthood and his wife's health from which he cannot derogate and which make it essential that he remains with them.

The Adjudicator was therefore correct, in our view, in upholding the respondent's appeal against the refusal to vary leave to remain on the basis that such refusal would be in breach of Article 8. For the reasons which we have indicated we would entirely concur with that decision.

The Secretary of State's appeal is dismissed.

M.W. RAPINET

ACTING VICE PRESIDENT