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Cite as: [2004] UKIAT 88, [2004] UKIAT 00088

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APPEAL No. HR (Proportionality) Serbia and Montenegro [2004] UKIAT 00088

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 24^th June 2003

Date Determination notified: 28 April 2004

Before

Mr C M G Ockelton (Deputy President)

Dr H H Storey (Vice President)

Mr J Barnes (Vice President)

Between

Secretary of State for the Home Department	APPELLANT
and
HR	RESPONDENT

DETERMINATION AND REASONS

The Appellant is the Secretary of State for the Home Department. He appeals, with leave, against the determination of an Adjudicator, Mr R Norman, allowing on human rights grounds the appeal of the Respondent, a citizen of Yugoslavia from Kosovo, against his decision on 7^th March 2002 to direct his removal as an illegal entrant. Before us the Secretary of State has been represented by Mrs Giltrow, and the Respondent by Mr Ikie of Ikie Solicitors. The Respondent was at all material times accompanied by his wife and, to an extent, she will be affected by the decision made in her husband's case. We shall call the Respondent and his wife together the Claimants.

The Claimants have a son resident in the United Kingdom as the result of a grant to him of refugee status and indefinite leave to remain. Following the son's flight from Kosovo, the son and parents lived apart for, we think, rather over four years. They were in contact by letter and, in due course, there was a letter in which the Claimants described to their son the difficulties which they said they were incurring in Kosovo. It appears that the son thereupon advised them to leave Kosovo by whatever means they could and join him in the United Kingdom as refugees. They travelled through a number of European countries before arriving in the United Kingdom on 2^nd February 2002. They claimed asylum a few days later: their claim was refused and certified. The Adjudicator found that there was no truth in it at all and agreed with the certificate. It is for that latter reason that there is no appeal on asylum grounds before us.

The Claimants also claimed that their removal from the United Kingdom would infringe their human rights under Articles 3 and 8 of the European Convention on Human Rights. The claim under Article 3 had, in essence, to be taken with the claim to be refugees. Given the Adjudicator's findings of fact, there is no basis for any finding that the removal of the Claimants to Kosovo would breach their rights under Article 3. We are concerned today with Article 8. The Adjudicator considered all the facts available to him including those arising from the evidence of the Claimants and of their son and, we understand, various financial matters relating to the son's employment and his ability to support his parents if they stayed. Having considered all those matters, the Adjudicator concluded as follows, in paragraphs 25 and 26 of his determination:

"25. I find that if the Appellant [that is to say, the male Claimant] were returned to Kosovo there would be an interference with the right of himself, his wife and his only son to family life. I find that the UK Government's action in seeking to remove the Appellant is in accordance with the law and has the legitimate aim of the maintenance of immigration controls, which is an accepted element required for the prevention of disorder or crime. I have also considered whether removal by the UK Government is proportionate in a democratic society to the legitimate aim to be achieved. I have also taken into account all relevant factors including:

(a) the age of the Appellant and of his wife.

(b) the fact that Mr Gezim Rusi is their only son, that he has an established life in the United Kingdom, that he has employment, that at the time of the Respondent's decision he was in the process of buying a house (which he now owns (subject to mortgage) where he and his parents live and that he is able to support them without recourse to public funds).

(c) that the separation of four and a half years referred to in the letter of refusal was the result of Mr Gezim Rusi having good reasons for not returning to Kosovo rather than that he did not have close ties with his parents.

(d) that Mr Gezim Rusi did send money to his parents while they were in Kosovo and that he supports them now.

26. I have weighed these against the right and the need of the UK Government to control the entry of non-nationals onto its territory and I find on the facts as established and balancing all material factors that return is not proportionate to the legitimate aim to be achieved. Therefore the Appellant has established that by returning him, the UK Government would be in breach of its obligations under Article 8 of the 1950 Convention."

And, for that reason, he allowed the Claimant's appeal.

The Secretary of State has appealed against that determination. The principal grounds, if we may summarise them, are that the Adjudicator erred in failing to follow the starred case of Kehinde 01/TH/2668, which was binding on him, and that he erred in his consideration of proportionality. That ground raises implicitly the interpretation of the starred decision in Noruwa 01/TH/2345 and subsequent decisions of the Tribunal and of the higher courts.

We sit today as a panel which has in common two members of the panel that decided Kehinde, and also two members of the panel that decided Noruwa, and we hope to provide assistance in the resolution of the issues raised by those two cases and by this one. We gave this judgment in court at the end of the hearing. During the period when we were attempting to make final corrections to it, the decisions of the Court of Appeal in Razgar v Secretary of State for the Home Department [2003] EWCA Civ 840, followed by Djali v Secretary of State for the Home Department [2003] EWCA Civ 1371 and Schmelz v Immigration Appeal Tribunal [2004] EWCA Civ 29. Meanwhile, the Tribunal has issued M (Croatia) [2004] 00024* and N (Kenya) [2004] 00009. Nothing that we say here is intended to conflict with any of those decisions on the role of the Appellate Authorities in appeals raising issues of proportionality.

The first question then is whether, in making the determination that he did make, the Adjudicator was entitled to consider the human rights of firstly, the Claimant's son, who was in no sense a party to the appeal, and secondly, to the rights of the female Claimant. In her case it is right to say that although she was not an Appellant to the Adjudicator, Mrs Giltrow has not suggested that her human rights did not fall to be taken into account. The relevant part of the decision in Kehinde is as follows:

"9. 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 in so far as they relate to the human rights of the appellant himself) are irrelevant to the matter under consideration."

We have emphasised the words in brackets because our experience is that they are often ignored. There is no suggestion that the situation or the human rights of the Appellant should be taken in isolation. The Appellant's own position is the focus of the Adjudicator's determination, but in assessing the Appellant's own position, the Adjudicator will need to consider all the material before him. An Adjudicator could not have allowed an appeal such as the present simply on the basis that a non-Appellant's human rights would be affected by the decision. But the fact that a family member's human rights are affected may well be relevant to the determination of the Appellant's own human rights.

We say no more than that in order to avoid pre-judging any future cases. What we would emphasise is that there is no suggestion in Kehinde that any matter relevant to the Appellant's own human rights is to be ignored. It is quite clear that there are circumstances in which the human rights of someone other than an Appellant have a relevance; but that relevance has to be confined to the effect that those rights have on the Appellant's own human rights. We intend that the Tribunal's decision in Met Sula, where the facts were, to say the least, complex, cast no doubt on that particular principle, which is also exemplified in R(AC) v Secretary of State for the Home Department [2003] EWHC 389.

We pass then to questions relating to proportionality. Here, we have had the enormous advantage of being shown a recent decision of the Court of Appeal in Blessing Edore v Secretary of State [2003] EWCA Civ 716. That is a decision in which Simon Brown LJ, with whom Waller LJ and Kay LJ agreed, set out a number of issues relating to the task of Adjudicators and the Tribunal in assessing appeals based on proportionality. In the course of his judgment, Simon Brown LJ refers to what he perceives as the difficulty of understanding the Tribunal's decision in Noruwa. He cites, at paragraph 19, a shorter statement of the law in the Tribunal's decision in Baah [2002] UKIAT 05998 as follows:

"The question for us is whether or not the Respondent's decision is lawful under s 6(1): that is to say, whether it is proportionate. It is not open to us to substitute our own decision if the decision was within the allowable area of discretion allowed to the Respondent."

Simon Brown LJ then goes on to cite the analysis of Moses J in Ala v Secretary of State for the Home Department [2003] EWCH 521 Admin of 19^th March 2003. His summary at paragraph 20 is as follows:

"For my part, I find Moses J's analysis in Ala entirely convincing, and in the result conclude that in cases like the present where the essential facts are not in doubt or dispute, the Adjudicator's task on a human rights appeal under s 65 is to determine whether the decision under appeal, ex hypothesei a decision unfavourable to the Appellant, was properly one within the decision-maker's discretion ie was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in claim. If it was, then the Adjudicator cannot characterise it as a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently ie in the Appellant's favour, he cannot substitute his preference for the decision in fact taken."

We respectfully agree, and did not mean to say anything different in Noruwa.

However, the matter cannot unfortunately be allowed to remain there. The task of the Adjudicator is a much more complex one than those clear and accurate statements of the law indicate. As we attempted to point out in Noruwa , the Adjudicator is concerned with a real appeal. For that reason, his fact-finding function remains alive. He is not merely concerned with a review of the Secretary of State's decision. In a case based on proportionality, therefore, the Adjudicator's primary function will be to find the relevant facts. He is then concerned with determining whether the decision which was made was or was not a lawful one. In Noruwa, we were concerned to distinguish cases governed by what was then paragraph 21(1)(a) to the 1999 Act from those covered by paragraph 21(1)(b). The mere fact that the Secretary of State's decision involved a question of proportionality does not make it one in which the decision involved the exercise of a discretion.

It follows, as we decided in Noruwa, that it is not open to an Adjudicator to substitute his own judgment on proportionality for the judgment of the Secretary of State. The issue of proportionality is different from that of discretion and the Adjudicator is confined to his functions under paragraph 21(1)(a): that is to say, and indeed as Moses J also said in Ala, he is concerned with discovering whether the decision against which the appeal is brought is a decision which was not in accordance with the law, subject to any restriction on the grounds of appeal, such as is found in section 65 of the 1999 Act. In order to decide that issue, however, the Adjudicator will have to decide on issues of proportionality.

We attempt here to be precise about the issue which the Adjudicator must decide. He is clearly not given a power to decide for himself whether the removal of the Claimants would infringe Article 8 as being disproportionate. He is concerned, instead, with a much more difficult task. He has to decide whether, on the facts he has found, the decision is one which nobody could reasonably call proportionate. It is if nobody could reasonably call the decision proportionate that he will find that the decision breached the Claimant's human rights: he will therefore allow the appeal, having found that the ground specified in section 65 is made out. If, on the other hand, whatever may be his own inclinations, he is not satisfied that the decision which was made is one which nobody could reasonably call proportionate, then the decision is lawful and the Adjudicator must say so and dismiss the appeal.

We do not underestimate the difficulty which Adjudicators are bound to have in applying the law on this topic. It is all too easy to come to a conclusion that, because one thinks oneself that the decision would be disproportionate, nobody could reasonably disagree. Nevertheless, it is quite clear that the task imposed on Adjudicators by the statute is not themselves to make judgments on proportionality but merely to determine whether the decision which has been made is so disproportionate that it falls outside of the range of reasonable responses and was therefore unlawful.

We turn then to the facts of this appeal. As Mrs Giltrow pointed out, the Claimants could have applied to join their son as the family members of a refugee. Owing to their advanced age, they could have applied under the Immigration Rules to join him as his elderly dependant parents. They did neither; and that is a matter which falls for consideration in this appeal. We take into account also all the matters which the Adjudicator took into account. We note that in making his own decision, the Secretary of State appears to have considered that there was no family life at all between the Claimants and their son. That, in our view, was an error. Nevertheless, so far as the Adjudicator was concerned, he made a finding of fact that there was family life, exemplified, in the four and a half years when the Claimants were separated from their son, by contact and the sending of money from time to time, and, in the time since the Claimants had arrived in the United Kingdom, by their living together with him and becoming more strongly financially dependant upon him. Those are facts found by the Adjudicator which needed to be fed into the process of deciding whether the Secretary of State's decision to remove the Claimants was disproportionate in the sense of being outside the range of possible responses.

The Adjudicator, in his determination, makes no reference to what we have decided is the correct test. It is clear from the passage that we have cited from his determination that the Adjudicator concerned himself simply with his own view on whether removal was disproportionate. We note that removal would return the family to the situation in which it was for so many years. We note also that if that is done, the Claimants would have the opportunity to make application to come to the United Kingdom lawfully under at least two heads. Given those factors in addition to those mentioned by the Adjudicator, the Secretary of State's response was clearly not one which nobody could reasonably call proportionate. The Adjudicator was wrong to find that the decision was illegal as breaching the Claimants' rights under Article 8, which was the only basis upon which he could reverse it.

This appeal is therefore allowed and we restore the Secretary of State's decision to remove the Claimants as illegal entrants.

C M G OCKELTON

DEPUTY PRESIDENT