KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro  UKAIT 00044
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 11 December 2006
Date Determination notified: 18 May 2007
Senior Immigration Judge Storey
Mr G F Sandall
Mrs W Jordan
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr S McLoughlin, from TRP Solicitors
For the Respondent: Mr J Singh, Home Office Presenting Officer
DETERMINATION AND REASONS
The judgment of Collins J in Lekstaka  EWHC 745 (Admin) established that on Judicial Review of a refusal of the Immigration Appeal Tribunal of permission to appeal to it that claimant's case was arguable, but did not decide the merits of that case nor establish general propositions applicable to other cases.
As now clarified by AA (Afghanistan) EWCA Civ 12 and SB (Bangladesh)  EWCA Civ 28, the loss of a right of appeal (e.g. by being denied a grant of ELR as a minor) does not amount to a particularly significant "disbenefit" unless there are practical disadvantages that can be demonstrated in the individual case (e.g. being prevented from working or being denied needed assistance under the Children Act 1989).
Although the reliance placed by TK (Immigration Rules-policy-Article 8) Jamaica  UKAIT 00025 on the "truly exceptional circumstances" test has been shown by Huang  UKHL 11 to be wrong, its guidance on "near-misses" remains valid. Even when an individual's circumstances fall squarely within the rationale of a relevant immigration rule or policy and so accord with its spirit albeit not its letter, a "near-miss" does not of itself mean that an expulsion decision constitutes a disproportionate interference with an appellant's right to respect for private and/or family life.
DETERMINATION AND REASONS
"I find, however, that the respondent's action seeking to remove the appellant is in accordance with the law and has the legitimate aim of the maintenance of immigration controls. I have also considered whether removal by the respondent is proportionate in a democratic society to the legitimate aim to be achieved. I have taken into account the background evidence, which has been placed before me. The appellant has lost his father and all contact with his mother. He has formed a family relationship with his uncle's family and had developed bonds with his aunt and cousin. The appellant is now a young adult of 20 years of age. He is fit and healthy and there is no evidence that he is suffering from any psychiatric disorder because of the experiences he has undergone. The facilities available to him in Gjakova as shown in the report, are adequate for a young adult male and there are many NGOs working in the area. He will not be left to manage on his own. It is a sad fact of the troubles in Kosovo that many young men find themselves in the position of the appellant but there is no reason why he should not be able to resume an ordinary life there. Considering all these factors, I conclude that the decision to return is proportionate to the legitimate aim to be achieved."
"4. I do hope somebody can look at this particular case again and the claimant can stay with the only family he has. He is only 20, fit though he may be, and the idea of sending him back to Kosovo when he had been in this country since the age of 16, certainly gives pause for further thought. I hope somebody can look at this case again before it disappears without trace."
"36. One must of course also bear in mind that to remove the claimant to Kosovo would not only interfere with his family life which the Adjudicator had found to exist – and which clearly did exist – but would effectively bring it to an end. There has been a suggestion that he could keep in touch and could visit as and when he was able, it not being suggested that it would be reasonable to expect the uncle and his family to relocate to Kosovo in order to be with the claimant there. In theory that, I suppose, is possible. In reality it is a forlorn hope, partly because it presupposes that the claimant would have the means to enable him to travel to visit for any length of time; and secondly that an accommodating Entry Clearance Officer would grant him the necessary clearance to enable him to do so, because the ECO would have to be persuaded that he qualified within the terms of the visit rules. It would mean that he intended to return after the period of his visit and was able to maintain himself without working during the period when he was to be a visitor to this country. Whether he would succeed in so persuading the Entry Clearance Officer is as it seems to me, a moot point. In any event, there is no doubt that he would be in a very unhappy situation, were he to be returned to Kosovo. That of course is not in itself determinative. There are many, undoubtedly, for whom return is a most unhappy state of affairs. But there are not, I suspect, many whose family life is such as this claimant's.
37. If one looks back and wonders whether he would have qualified at an earlier stage, one finds, first of all that had he been a son, as opposed merely to being a nephew, he would, on the face of it, have been able to gain entry as such a dependant had he applied before he reached the age of 18. Certainly it is difficult to conceive that there would have been any bar under the Rules. He certainly would have qualified. Equally had he been a son, a dependant, as opposed to a nephew, and had the family not been granted asylum, he would have qualified to enter under the family policy. Furthermore, it was policy to allow the family of refugees who were granted that status to join them in this country and he would have qualified on that basis too as the dependent son, if he had applied to come before he reached the age of 18.
38. Mr Beard submits that it is not appropriate and not proper to look back in that way and to ask what would have happened if the situation had been somewhat different. But it seems to me that one is entitled to see whether, in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. It does in my view quite plainly fall within the spirit because, albeit only a nephew, he has no other family - his father having been killed and his mother having disappeared – and he has been treated by his uncle as if he were indeed the son of the family and that in my judgment is certainly capable of constituting an exceptional state of affairs.
39. The Adjudicator does not in terms spell out the consequences of his findings. He does not go into the question of whether the matter was exceptional in any detail. This is not surprising because the exceptional test was not the test which the courts had decided on at the date that the Adjudicator reached his decision. I have already indicated that I have some concern at the Adjudicator's approach referring to many young men finding themselves in the true position of this appellant and how his position and condition was perhaps rather different from that which might apply in other cases.
40. That, coupled with Mr Fox's reference to law [a reference to Mr J Fox, a Vice President prematurely applying an error of law jurisdiction], does create concern that the proper approach may not have been adopted in this case. I am quite satisfied that there is a real chance of success, looking at the overall facts, if the matter goes back to the Tribunal to review and reconsider the situation in this case."
"21. On this second point, we consider that Ms Greaney was realistic to state, as she did in her skeleton argument, that "whether or not the applicant would satisfy the requirements for entry clearance was not a matter which the [Tribunal] ought to have taken into account". Although there are arguments (and first instance decisions) which support the opposite view, that statement seems to be right as a matter of principle, in terms of fairness and good practice, and in the light of authority.
22. So far as principle is concerned, the issue of whether the applicant satisfied the requirements of paragraph 246 of the Immigration Rules would be for an entry clearance officer in Bangladesh to determine, if and when an application under that paragraph is made. In the absence of a requirement to that effect, it is not an appropriate issue for determination, when no such application has been made, by a tribunal deciding a different question, at a different time, in a different country, and in different circumstances. It would also seem somewhat paradoxical if the stronger an appellant's perceived case for entry clearance under the Immigration Rules the more likely he or she is to be removed. Yet, subject to the first point mentioned in paragraph  above, on the basis of the reasoning of the Tribunal in this case, that would be the inevitable consequence.
23. As to practicality, it would be unfortunate, in terms of time effort and expense, if a tribunal, when deciding whether a claim for leave to remain was truly exceptional, had to consider, almost as a matter of course, how likely an appellant, if removed from the United Kingdom, would be to succeed on a subsequent putative application for entry clearance to come back to this country. Yet, as we see it, such an exercise would have to be carried out in many, possibly most, appeals of the present type, if that issue was potentially relevant. And, if such an exercise is carried out, it is hard to see how a tribunal is to decide the weight or effect of such a factor if it decides that the prospects of success of such an application to enter are debatable or speculative.
24. There is also a real risk of unfairness to an appellant if such a factor is taken into account. Thus, the views expressed in paragraphs  and  by the Tribunal in this case may turn out to be wrong, either because an entry clearance officer takes a different view of the facts or the law, or because the Immigration Rules change, or because the facts change.
25. There are decisions of this court which appear to us to establish that an appellant should not be able to resist removal on the ground that he or she would have a very poor prospect of coming back pursuant to an application for entry clearance. We have in mind Ekinci v Secretary of State for the Home Department  EWCA Civ 765, at paragraphs  and , and Chikwamba v Secretary of State for the Home Department  EWCA Civ 1779, at paragraphs  to . (See also Mahmood v Secretary of State for the Home Department  1 WLR 840 at paragraphs  and , on a slightly different, but similar, point). The "bizarre and unsatisfactory result" of an appellant being more likely to resist removal the weaker his future putative case for entry clearance was a strong factor in the reasoning (see paragraph  in Ekinci, quoted in paragraph  in Chikwamba). As mentioned in paragraph  above, the converse applies here.
26. We accept that the question of whether an appellant's circumstances are truly exceptional in an Article 8 case can fairly be said to be affected by the perceived strength or weakness of her prospects of getting back here if removed. That certainly appears to have been part of the thinking of Jackson J in R v Secretary of State for the Home Department ex p Hashim (unreported, 21 January 2000) and Collins J in Lekstaka …  EWHC 745 (Admin).
27. However, we consider that the arguments the other way are stronger. It is not as if there is any logical or practical impediment to excluding from a tribunal's consideration the prospects of a successful putative future entry clearance application, in a case such as this. It merely involves limiting the scope of the inquiry as to whether the appellant's circumstances are truly exceptional, and limiting it in a way which can fairly be said to be justified for the reasons we have mentioned. In any event, there are the decisions of this court to which we have referred. In that connection, Hashim was disapproved on this point in paragraph  of Mahmood, and the observation of Collins J, relied on by the Tribunal here, was something of a throw-away point (as discussed in paragraph  of his judgment), which does not appear to us to have been essential to his decision". [emphasis added]
Relevant principles of case law relating to delay
"The law in relation to delay: a summary
24. I draw the following conclusions from the authorities, binding on us, discussed above.
(i) Delay in dealing with an application may, increasing the time that the claimant spends in this country, increase his ability to demonstrate family or private life bringing him within Article 8(1). That however is a question of fact, and to be treated as such.
(ii) The application to an Article 8 case of immigration policy will usually suffice without more to meet the requirements of Article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].
(iii) Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.
(iv) In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant's case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke].
(v) Where the applicant has no potential rights under the specifically immigration law, and therefore has to rely on his rights under Article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under Article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at paragraph 25].
(vii) And further, it is not clear that the court in Strbac thought that the failure to obtain ELR on asylum grounds because of failure to make a timely decision could ever be relevant to a decision on the substance, as opposed to the procedure, of a subsequent Article 8 claim. Certainly, there is no reason in logic why that fact alone should affect the Article 8 claim. On this dilemma, see further paragraph 8 above.
(viii) Arguments based on the breakdown of immigration control or of failure to apply the system properly are likely only to be of relevance if the system in question is that which the Secretary of State seeks to rely on in the present proceedings: for instance where a procedural rule of the system is sought to be enforced against the applicant [Akaeke]. The same arguments do not follow where appeal is made in Article 8 proceedings to earlier failures in operating the asylum system.
(ix) Decisions on proportionality made by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke]."
21. Mr Gill contends that the appellant has been denied the advantage of an in-country right of appeal on an application to vary leave and is in a more precarious position as a result. This is not a mere technicality. It means that the appellant would have had legal rights available to him which he has now lost. Moreover, there was some change in his circumstances, because there was evidence put before the AIT that in June 2005 he became engaged to a British national, and this new factor and any other changes could have been put forward during such an appeal process.
22. I recognize the importance to be attached to the loss of the potential right to an in-country appeal against any refusal of variation of leave to remain. It is true that the chances of such an appeal eventually meeting with success may have been slim: on this I see the force of the points made by Mr Waite about the substantive merits of such an appeal. Nonetheless, it is to be borne in mind that such an appeal process would have afforded the applicant the advantage of an independent judicial consideration of those merits as they stood at the time. That is a significant advantage when compared with the arguments which could be put forward on a judicial review of a decision by the Secretary of State that no new asylum or human rights claim had been advanced. The appellant has lost that advantage because of the errors of law by the adjudicator and the AIT.
23. He cannot, of course, now be restored to the position he would have been in, had he been granted discretionary leave to remain until his 18th birthday. Mr Waite is right to emphasise that. But the loss which the appellant has suffered is a consideration which the Secretary of State should consider in the exercise of his discretion as to whether the appellant should now be granted any further leave to remain and, if so, for how long.
24. The same seems to me to be true of another disbenefit suffered by the appellant as a result of the errors of law. In written submissions accepted by the court after the close of oral argument, the intervener has made the point that if the appellant had enjoyed discretionary leave to remain until his 18 birthday, any application by him made before that leave expired to extend it would have resulted in an automatic extension of leave until the application (and any consequential appeal) had been decided or withdrawn. That is the consequence of section 3(C) of the Immigration Act 1971. Moreover, while lawfully in this country because of such an automatic extension of leave, he would have been entitled to work and to obtain various forms of assistance under the Children Act 1989. Neither of those benefits is available to an overstayer.
25. Legally the propositions seem to me to be sound. Once again, the appellant cannot now obtain these benefits as of right: as is said on behalf of the Secretary of State, this court cannot put the appellant into the position in which he would have been, had discretionary leave been granted. But, again, there can be no doubt that he has suffered a disbenefit as a result of the legal errors made in this case, and that is something which the Secretary of State ought now to take into account. I accept that the conferring of the benefits relied on by the intervener (and adopted on behalf of the appellant by Mr Gill) may not be the purpose of a grant of discretionary leave - in that Mr Waite seems to be right. But such a grant nonetheless has those potential consequences and they cannot be ignored."
"The further submissions of the Medical Foundation, as intervener, have provided examples of how the grant of exceptional leave would have carried with it practical advantages during the claimant's minority, and the possibility of prolonging them after he had become an adult. The other members of the court are, I understand, satisfied that these points are sufficient to raise at least an arguable case that the claimant has lost benefits of real substance, and that the loss of those possible benefits is a matter which could be material to the Secretary of State's decision whether to grant exceptional leave. Although I do not feel confident that we have been able to examine the basis of those submissions in sufficient detail, I do not propose to dissent from that conclusion."
Relevant principles of case law on "near-misses"
"An Immigration Judge would have to approach the Family Exercise on the footing that the Claimant fell outside it and that its scope was lawful. Much of the rationale could apply to many whose lives had developed over the prolonged periods for which they remain in this country either without a decision or before removal action. But the approach in Mongoto to those who fall outside the scope of a particular policy to my mind precludes an Immigration Judge in effect expanding it to cover near misses or those to whom aspects of the rationale could apply. I accept that there may be cases in which the rationale for a policy may inform the judge of the significance of a particular point; there may be lacunae, but that is very different from treating a policy as the basis for extension by analogy or comparison. That is not what Shkembi decided. There is not a near miss penumbra around every policy providing scope for its extension in practice to that which it did not cover, and this case is not a near miss but wholly outside the Exercise. The rationale for the exercise does not apply to the Claimant, although some of the points made about its purpose could apply to any who have stayed for a while in this country after their appeals on all grounds have been dismissed."
"30. In paragraph , the Tribunal first said that, applying the approach of Collins J in Lekstaka, the fact that the appellant "only just failed to qualify for admission" was a fact to be counted in her favour. They were right to take that view. We agree with the view expressed by Collins J in Lekstaka in paragraph 38 that:
"… one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."
That seems to us to be the right approach. As Simon Brown LJ said in Ekinci at paragraph 16:
"Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious Article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a s. 59 right of appeal would certainly arise in which, by virtue of s. 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights."
31. The ultimate test is, of course, that set out in paragraph 59 of the judgment of the Court given by Laws L.J. in Huang…":
"We agree with the view expressed by Collins J in Lekstaka in paragraph 38 that:
"… one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."
That seems to us to be the right approach."
Date: 14 May 2007
Senior Immigration Judge Storey