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Judgments - E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department


SESSION 2007-08

[2008] UKHL 41

on appeal from: [2006]EWCA Civ 1713




E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood



Richard Drabble QC

Duran Seddon

(Instructed by Immigration Advisory Service)


Philip Sales QC

Parishil Patel

(Instructed by Treasury Solicitors)

Hearing date:

16 AND 17 APRIL 2008






E B Kosovo (FC) (Appellant) v Secretary of State for the Home Department

[2008] UKHL 41


My Lords,

1.  The appellant, a Kosovar, arrived in this country from Kosovo, via Macedonia, on 2 September 1999. He was then aged 13. He claimed asylum four days later. It was refused on 27 April 2004, a delay of over four and a half years. Conditions in Kosovo having changed, the appellant now has no ground for claiming asylum. But had his application been decided before 10 December 2003, when he became eighteen and so ceased to be an unaccompanied minor, he would, depending on the date of the decision, under the policies in force, from time to time, have been granted exceptional leave to remain in this country for four years or until his eighteenth birthday, with at least the chance of obtaining indefinite leave to remain thereafter. The respondent Secretary of State now seeks to remove him to Kosovo. The appellant resists removal, relying on his rights under article 8 of the European Convention on Human Rights, the right to respect for private and family life. It is not suggested that four and a half years is a reasonable time for the respondent and his officials to take to resolve an application for asylum. Thus arises the question at the heart of this appeal: what (if any) bearing does delay by the decision-making authorities have on a non-national’s rights under article 8?

2.  In March 1999 the appellant’s family was forced out of its home by Serb forces. He and his cousin, a boy about a year older, were separated from their respective families and directed, with other children, to join a convoy to Macedonia. They were there accommodated in a series of refugee camps until the opportunity offered to come to this country, which they did together. The appellant has had no further contact with his family. It seems likely that the cousin, like the appellant, applied for asylum almost immediately on arrival.

3.  After seven months in the care of foster parents, the appellant, with his cousin, were taken in by an uncle living in this country and lived as members of his family. He went to school and entered the sixth form. In June 2003, when he was nearing eighteen, the appellant met Latifa Quresh. They began a relationship and Latifa moved in to live with the appellant and his uncle a month later. Latifa is a Somali national. She had entered this country with her mother in about 2000, was granted four years’ exceptional leave to remain in January 2002 and now has indefinite leave to remain.

4.  When the appellant met Latifa she was five weeks pregnant by another man, who had abandoned her. A daughter was born in February 2004 and the appellant has treated her as his own child. Later Latifa became pregnant by the appellant, but she miscarried. They have expressed an intention to remain together and marry.

5.  The appellant’s application for asylum provoked no immediate response and in March 2000 his solicitors wrote to the respondent, enclosing a copy of the original application. In April they submitted, in time, a form required by the respondent. Six months later, in October 2000, the respondent refused the appellant’s application on the ground of his non-compliance in failing to return the form. The appellant’s present solicitors did not receive a copy of this decision, and in April and June 2002 they wrote to the respondent seeking a decision and (on the latter occasion) permission for him to work. They received no response. Then, in September 2002, the respondent acknowledged that an incorrect refusal had been issued, and it was withdrawn. The solicitors, who had not received the refusal decision, pressed for an answer on the substantial application, but received no reply. There was further inconclusive correspondence. Not until 27 April 2004 was the appellant interviewed about the substance of his claims. A letter informing him of the respondent’s intention to remove him was sent on 10 May 2004.

6.  The appellant appealed to an adjudicator on asylum and human rights grounds, but it seems that he virtually abandoned the asylum claim and in a decision dated 13 September 2004 the adjudicator (Mr Peter Telford) found against him on both grounds. A further appeal to the Asylum and Immigration Tribunal (Mr T B Davey, Immigration Judge, Mrs L R Schmitt and Mr G F Sandall) was mounted on article 8 grounds only, but was rejected in a decision dated 27 January 2006. Because issues concerning the effect of delay were arising with some frequency and giving rise to some differences of judicial approach, it was decided to list four appeals to be heard by the Court of Appeal as test cases. The present case was one of the four. In the event, as Buxton LJ (giving the leading judgment in the Court of Appeal: [2006] EWCA Civ 1713, [2007] Imm AR 396, para 1) put it, “that enterprise failed, first because the effect in law of such delay is already well-settled by authority binding on this court; and second because all of the four cases before us fail on grounds not related to delay". Only the present case is now before the House.

Appeals on article 8 grounds

7.  In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, para 17, the House summarised, in terms to which all members of the committee assented and which are not understood to be controversial, the questions to be asked by an adjudicator hearing an appeal against removal on article 8 grounds. It said:

“In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

In practice the fourth and fifth questions are usually, and unobjectionably, taken together, but as expressed they reflect the approach of the Strasbourg court which is (see Boultif v Switzerland (2001) 33 EHRR 1179, para 46; Mokrani v France (2003) 40 EHRR 123, para 27; Sezen v Netherlands (2006) 43 EHRR 621, para 41) that

“decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.”

8.  In Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, the House made two significant decisions. First, it unambiguously endorsed the decision of the Court of Appeal in the same case ([2005] EWCA Civ 105, [2006] QB 1) that the task of the appellate immigration authority on an appeal on a Convention ground against a decision of the primary decision-maker refusing leave to enter or remain in this country is not a secondary, reviewing, function but calls for the authority to make its own decision: see para 11. Secondly, it differed from the Court of Appeal’s view expressed in the same case (paras 59, 60, 63) that an appeal should be allowed only if the case was found to be “exceptional” or “truly exceptional": see para 20.

9.  In seeking to give guidance to appellate immigration authorities, the House emphasised the importance of careful investigation of the relevant facts: para 15. The reason for this was well put by Wall LJ for the Court of Appeal in Senthuran v Secretary of State for the Home Department [2004] EWCA Civ 950, [2005] 1 FLR 229, para 15:

“In our judgment, the recognition in Advic [(1995) 20 EHRR CD 125] that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Art 8 is or is not engaged in a given case.”

As Owen J observed in Mthokozisi v Secretary of State for the Home Department [2004] EWHC 2964 (Admin), para 28, “of course all will turn on the facts of the individual case".

10.  In Huang, para 16, the House acknowledged the need, in almost any case, to give weight to the established regime of immigration control:

“The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.”

There was of course nothing novel in this. In R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, [2001] INLR 1, para 23, Laws LJ had recognised that “Firm immigration control requires consistency of treatment between one aspiring immigrant and another". In a complex and overloaded system perfect equality of treatment between applicants similarly placed will be impossible to achieve, but startling differences of treatment between such applicants, or anything suggestive of randomness or caprice in decision-making, must necessarily give grounds for concern.

11.  In Huang, para 18, it was recognised that decisions under article 8 may, depending on the facts of the given case, involve the weighing of multifarious considerations:

“It is unnecessary for present purposes to attempt to summarise the Convention jurisprudence on article 8, save to record that the article imposes on member states not only a negative duty to refrain from unjustified interference with a person’s right to respect for his or her family but also a positive duty to show respect for it. The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their own decisions. But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.”

With reference to proportionality it was said (para 20):

“In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.”

12.  Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.


13.  In Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, [2005] Imm AR 504, para 25, counsel for the applicant was understood to contend, in effect, that if the decision on an application for leave to enter or remain was made after the expiry of an unreasonable period of time, and if the application would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, and if the applicant had in the meantime established a family life in this country, he should be treated when the decision is ultimately made as if the decision had been made at that earlier time. For reasons given by Laws LJ, the Court of Appeal rejected this submission, for which it held Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, [2003] INLR 349 to be no authority. While I consider that Shala was correctly decided on its facts, I am satisfied that the Court of Appeal was right to reject this submission. As Mr Sales QC for the respondent pointed out, there is no specified period within which, or at which, an immigration decision must be made; the facts, and with them government policy, may change over a period, as they did here; and the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made. Mr Drabble QC, for the appellant, did not make this submission, and he was right not to do so.

14.  It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant’s claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it.

15.  Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant’s precarious position. This has been treated as relevant to the quality of the relationship. Thus in R (Ajoh) v Secretary of State for the Home Department [2007] EWCA Civ 655, para 11, it was noted that “It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status". This reflects the Strasbourg court’s listing of factors relevant to the proportionality of removing an immigrant convicted of crime: “whether the spouse knew about the offence at the time when he or she entered into a family relationship” see Boultif v Switzerland (2001) 33 EHRR 1179, para 48; Mokrani v France (2003) 40 EHRR 123, para 30. A relationship so entered into may well be imbued with a sense of impermanence. But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.

16.  Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant’s cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant’s application on grounds of non-compliance. In the case of JL (Sierra Leone), heard by the Court of Appeal at the same time as the present case, there was a somewhat similar pattern of facts. JL escaped from Sierra Leone with her half brother in 1999, and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. As in the appellant’s case this decision was erroneous, as the respondent recognised eighteen months later. In February 2006 the half brother was granted humanitarian protection. She was not. A system so operating cannot be said to be “predictable, consistent and fair as between one applicant and another” or as yielding “consistency of treatment between one aspiring immigrant and another". To the extent that this is shown to be so, it may have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. As Carnwath LJ observed in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] INLR 575, para 25:

“Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal”

The adjudicator’s decision

17.  Given his important fact-finding role, the adjudicator’s decision is always important. In this case he said (para 21):

“I find that he had not made a claim for article 8 protections by mentioning in his interview that he had a girlfriend or that she was pregnant or that he did not wish to leave. I find - following withdrawal of the claim for asylum - the appellant even on the low standard of proof I apply has failed to establish there is for him an objective risk in this case of serious harm for a convention reason. I find that the removal of the appellant at this stage would not be disproportionate and would be a lawful pursuit of the policy of effective immigration control.”

The adjudicator observed in para 26 that there was nothing to indicate that articles 2 or 3 would be breached if the appellant were returned to Kosovo, and he continued:

“27.  The situation is such that he has on this evidence a family life. He has chosen not to make any attempt to contact his family in Kosovo but he no doubt has a family life with his uncle and his girlfriend here. Article 8 is engaged. It would suffer if he returned. He would no longer be with his uncle. Article 8 would be breached. However it would not be breached fundamentally. He could return with his girlfriend. She is Somali. She looks at least Asian he says by relatively light skin tone. She could return with him. He says she would receive racist treatment. I am not referred to any cogent evidence of that. It may be that she may receive such racist treatment here if it amounted to verbal abuse. It may not. All of this is to be frank speculation on the part of the appellant. It does not establish that she cannot return with him. No doubt they would economically be worse off but that is not the point.

28.  Even were she not able to return with him she has family in the UK including mother and brother. She has their support as well as the uncle of the appellant and a home and some income. The issue then becomes one of whether it would be proportionate to return him given the need for an effective immigration policy. He would also as I understand it have to show that the breach if anticipated would be a serious one - some say as serious as to make it inhuman and degrading treatment contrary to article 3. He cannot do that. He would be able to telephone. He would be able to write. He is not married. He can apply to come in to the country in the normal way. The child of the witness Miss Qureshi is young and cannot have yet bonded with him at one year old.

29.  There is a child to the family. There is another on the way. However that does not mean he should not be returned according to the laws of the UK.

30.  There are no exceptional grounds for allowing the appellant to remain although he has been here nearly 5 years and has a family life of sorts. The fact of the matter is that the girlfriend could go with him to Kosovo. Even though she prefers not to for entirely understandable reasons, those reasons do not amount to a risk of human rights abuse arising in either her case or his.”

18.  This reasoning is not easy to follow. Some references suggest that the appellant had to show a risk of persecution, or of conduct which would almost engage the application of article 2 or 3, if he were returned to Kosovo. That would not be correct. Otherwise, the adjudicator appears to have been willing to accept either that the appellant would be returned to Kosovo leaving his girlfriend and her child and expected child here, or that he would be returned and she and the children would follow. On the former hypothesis it was necessary to consider the proportionality of separating the appellant from his girlfriend, informally adopted child and expected child. On the latter hypothesis he had to consider whether it was reasonable to expect the girlfriend, who had exceptional leave to remain here and the prospect of indefinite leave, to move to a country which was entirely unfamiliar and whose language she could not speak. The adjudicator did not address these problems adequately or attempt to assess the strength of the appellant’s relationship with his girlfriend.

The AIT decision