MB (Huang – proportionality – Bulletins) Croatia  UKIAT 00092
Date of hearing: 9 March 2005
Date Determination notified: 25 April 2005
|Secretary of State for the Home Department||RESPONDENT|
"89. There is, in my judgment, no insuperable obstacle to the Appellant and his family returning to their home village in Croatia and maintaining their existing family life together. There would, of course, be some change in the quality of their family life given the different social circumstances that exist here and in Croatia. There would also be some interference with aspects of the Appellant's private life in respect of his work and friendships. I do not, however, regard those as significant enough to amount to an interference with his Article 8 right.
90. Taking all these matters into account, I am not satisfied that the Appellant's right under Article 8.1 would be engaged by his return to Croatia. However, in case I am wrong in taking that view, I go on to consider whether any interference is justified under Article 8.2"
"97. I have already set out the evidence, which I accept, about the Appellant's situation in the UK and that which he and his family will face on return to Croatia. I refer to and adopt the material at paragraphs -,  and -. I do not regard his return to Croatia with his family to entail insuperable obstacles, despite the difficulties that they will surely face. They have been here 4½ years and to their credit, they have 'got on with life' and made a go of things: studying, working, making friends and, most recently, deciding to have a baby which is due next month. They are not, so far as I can tell, anything other than good citizens and are not a drain on the public purse. The Appellant's 'private and family life' in the UK has arisen at a time when he and, of course, his wife were aware that their status was uncertain. It seems to me that apart from the issue of delay – the so-called 'Shala point' – the Appellant's removal to his own country from which he and his wife originate, in the circumstances that I have previously rehearsed, would not be disproportionate in furtherance of maintaining an effective and fair immigration policy. The crucial issue is, in my judgment, that of delay."
"111. Context here is everything. The Appellant has not suffered any specific detriment by the delay. Indeed, it could be argued that he has had an opportunity to develop his relationship with his (now) wife and to gain experience at work and in the English language. He has, in that sense, gained from the delay when otherwise he might already have been returned to Croatia. I also note, and gratefully adopt, the Tribunal's observation in J that over the relevant period to that case, and to this appeal, it is well recognised that the Home Office has had to process a 'high volume of asylum applications'. In these circumstances, I do not consider the delay in processing this Appellant's claim to be excessive and to be a decisive factor in determining whether the Secretary of State's decision is a disproportionate interference with the Appellant's right to 'private and family life'.
112. In my judgment, taking account of all the circumstances of the Appellant and his family both in the UK and on return to Croatia, the decision is not disproportionate bearing in mind the area of discretion reposed in the Secretary of State. It is not outwith the range of reasonable decisions that he could make."
"4. It is a matter of considerable concern to me that the Bundle lodged with the AC contains neither (i) the correspondence with the Home Office referred to in para 6 of the Grounds for Statutory Review nor (ii) copies of any of the key authorities nor (iii) any materials to enable the AC to see precisely what the facts and issues are in the various cases dealt with by Laws LJ on 13 August 2004. This places the AC in an almost impossible position. (This is not the first time that criticism has had to be made about the handling of this case: see para 103 of the Adjudicator's Determination.)
5. These deficiencies must be remedied in time for the hearing of the appeal before the Tribunal."
"59. … The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
60. In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:
'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'
62. In summary, where in a human rights challenge the court is called upon in any respect to judge the weight or the merits of government policy, it will in deciding the outcome allow a margin of discretion to the policy maker. So much is required by the democratic principle: the principle of respect for the democratic powers of the State. In such a case, consistently with its obligations under the HRA, the court's decision is more intrusive than Wednesbury, being subject to the disciplines described by Lord Steyn in Daly. But there are cases, exemplified by these appeals, in which the court or adjudicator is not at all called upon to judge policy. In that case no question of respect for the democratic powers of the State arises: save in the sense, again exemplified here by the Immigration Rules, that prior decisions of the executive or legislature may have fixed, and narrowed, the territory across which the adjudicator's autonomous judgment may operate."
MR JUSTICE OUSELEY