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

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19.  The AIT (para 10) regarded the delay in this case as “unsatisfactory” but considered that “there is nothing in the nature of anything the appellant did or was done on his behalf by those representing or advising him to press for an earlier resolution of his claim” and found (para 12) that the adjudicator had not ignored the issue of delay. They rejected (para 15) a submission that the findings of the adjudicator were perverse, although saying that “We do not necessarily or would not have taken the same view as the Adjudicator". It was unimpressed (para 17) by the complaint that the appellant’s cousin had been treated differently. It found no error of law in the adjudicator’s decision (paras 18, 20) and therefore upheld it.

The Court of Appeal decision

20.  The Court of Appeal gave judgment after that court’s decision in Huang, which was of course binding on it, and before the decision of the House. That had the unfortunate consequence that the court founded its judgment on the proposition, rejected by the House, that effect may be given to an article 8 claim only if the case is found to be exceptional or truly exceptional.

21.  Accepting that premise, as he was bound to do, Buxton LJ sought in a series of nine propositions set out in para 24 of his judgment to reflect the effect of authority as it then stood. With some of these propositions I can readily agree: for example, that delay in dealing with an application may increase an applicant’s ability to demonstrate family or private life bringing him within article 8(1) (para 24(i)) and that decisions on proportionality made by tribunals should not, in the absence of legal error, be disturbed by an appellate court (para 24(ix)). I do not, however, think it necessary to recite or comment on all these propositions because, as I have endeavoured to show, the consideration of an appeal under article 8 calls for a broad and informed judgment which is not to be constrained by a series of prescriptive rules.

22.  The Court of Appeal was prepared to assume (para 34) that had an earlier decision been made in this case it would probably have been favourable to the appellant, but considered that this could not be conclusive and might not even be relevant. It considered that the issue of delay had not been addressed by the AIT mainly because it had never been properly put to it. The court was accordingly reluctant to remit the matter to the AIT for reconsideration, since there was no reason to think (para 35) that if confronted with this argument the AIT would find this factor was truly exceptional or such as to have a substantial effect on the merits of the case. But in any event there was a more fundamental reason why the appeal must fail: it was a pre-condition of the arguments under article 8(2) that the appellant could establish that removal from the country would interfere with his rights under article 8(1), but the adjudicator had held, and the AIT had properly upheld the finding, that on the facts removal would not interfere with the appellant’s family life with his girlfriend. Thus the argument on delay did not arise.

Conclusion

23.  I cannot, for my part, accept that the adjudicator accurately or adequately addressed the human problem raised by the appellant’s appeal to him, for reasons given in para 18 above. The judgment of the AIT did nothing to make good this deficiency. Plainly, the respondent’s delay in resolving the appellant’s application is relevant in the first way considered above, in para 14. That is agreed. Whether, and to what extent, the delay in resolving the claim, and the manner of its handling, are relevant when considering the overall proportionality of ordering the removal of the appellant have yet to be considered. This, as Laws LJ observed in Strbac, above, para 26 “requires a judgment in the round".

24.  Such a judgment has not yet been made and it should be made, whatever the outcome may turn out to be. I would allow the appeal and remit the matter for a fresh hearing by the AIT. I would invite the parties to make written submissions on costs within 14 days.

LORD HOPE OF CRAIGHEAD

My Lords,

25.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I would allow the appeal and make the order that he proposes.

26.  A striking feature of this case, on its facts, is the extent to which the delay was compounded by the mishandling of the appellant’s application by the Immigration and Nationality Directorate (“IND”). His cousin, Amir Trota, arrived with him in this country on 2 September 1999. He was granted exceptional leave to remain in 2001. The appellant, having claimed asylum four days after his arrival, submitted a statement giving his reasons for his claim on 20 April 2000, one day before the expiry of the relevant deadline. On 26 October 2000 the IND issued an incorrect refusal of the application. It alleged, erroneously, that the appellant had failed to co-operate with the determination process. It was not until 10 September 2002, after two reminders from the appellant’s representatives to which there was no response and at least nine months after his cousin’s claim had been dealt with, that the IND withdrew the non-compliance decision and said that a fresh decision would be given. There was then a further delay of 18 months before the appellant was informed on 10 May 2004 that his claim had been refused.

27.  I draw attention to this history in order to emphasise my noble and learned friend’s point that the weight which would otherwise be given to the requirements of firm and fair immigration control may be reduced if the delay is shown to be due to a system which is dysfunctional. There is, of course, no right to a decision within any given period of time. Article 8 claimants ought not to be advantaged merely because of deficiencies in the control system, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out. Allowance must also be made for the administrative burden that is unavoidable if the system is to be fair, and a case ought not to succeed merely because it might have been stronger if it had been determined earlier. But the shortcomings that have affected the appellant’s case cannot be explained or excused on these grounds. On the contrary, the balance in the appellant’s favour is significantly strengthened by the fact that the explanation for the delay is so unsatisfactory.

LORD SCOTT OF FOSCOTE

My Lords,

28.  I have had the advantage of reading in draft the opinions of all your Lordships and gratefully adopt the account given by my noble and learned friend Lord Bingham of Cornhill of the background to this appeal. Your Lordships are agreed that the appeal should be allowed and the case remitted for a fresh hearing by the AIT. I am in respectful agreement that for the reasons given by your Lordships the appeal should be allowed but I would, for my part, conclude here and now that no decision maker acting reasonably and proportionately could order the removal of the appellant to Kosovo. I can explain my reasons quite briefly.

29.  The appellant arrived in this country in September 1999. He was accompanied by a male cousin. Both had fled from Kosovo as a result of action taken by Serbs against Albanian Kosovans. Both had come to this country via Macedonia. The appellant, who was born on 10 December 1985, was 13 years old and his cousin was much the same age. They claimed asylum shortly after arriving in this country. Both were unaccompanied minors. The policy at that time in relation to Kosovan asylum seekers who were unaccompanied minors was that such asylum seekers would be granted exceptional leave to remain in this country, with the prospect after four years of being granted exceptional leave to remain.

30.  The cousin’s application was dealt with unexceptionally and he was granted exceptional leave to remain. Your Lordships were given so to understand by counsel although no details were available. We were given to understand, also, that subsequently the cousin was granted indefinite leave to remain. Not so the appellant. His asylum application was woefully mishandled by the immigration authorities. The details are set out by Lord Bingham in paragraph 5 of his opinion and I need not repeat them. The consequence of this mishandling was that the application was not properly dealt with until April 2004, by which time the appellant was eighteen years of age and no longer a potential beneficiary of the policy relating to unaccompanied minors.

31.  In the circumstances it seems to me grossly unfair for the appellant to be deprived of the benefit of the policy that had been applied to his cousin and would have been applied to him had his application been properly dealt with. Your Lordships have dealt with the issue of delay and I am in full agreement with what has been said. But the appellant’s complaint, legitimate as it seems to me, is not simply of delay. It is that he has been deprived of the benefit of a policy specifically designed for the category of asylum seekers into which he fell. The doctrine of “legitimate expectations” is much in vogue where allegedly unreasonable administrative decisions of the executive are under challenge and if ever there were a case in which a complaint based on legitimate expectations could be justifiably raised this seems to me to be that case. The unfairness of depriving the appellant of the benefit of the unaccompanied minors policy seems to me overwhelming. I would not remit the case to the AIT.

BARONESS HALE OF RICHMOND

My Lords,

32.  For the reasons given in the opinions of my noble and learned friends, Lord Bingham or Cornhill and Lord Hope of Craighead, with which I agree, I would allow this appeal and make the order which Lord Bingham proposes. In particular, I agree that prolonged and inexcusable delay on the part of the decision-making authorities must, on occasion, be capable of reducing the weight which would normally be given to the need for firm, fair and consistent immigration control in the proportionality exercise. That is a legitimate aim which will normally carry great weight in immigration cases. The heavy administrative burdens which such a system entails are well understood. But in article 8 cases, one is always concerned with whether the correct balance between the legitimate aim and the means employed has been struck on the facts of the particular case. Where the aim has failed as spectacularly as it did here, the general importance which is normally attached to it must to some extent be diminished. But it has still to be weighed in the balance along with everything else.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

33.  I have had the opportunity of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. With most of it, and not least my Lord’s proposed disposal of the appeal, I am in full agreement. As I shall come to explain, however, there is one matter about which I find myself in respectful disagreement.

34.  The important question of principle arising on this appeal is what effect delay has in the determination of an alien’s article 8 claim to remain in the UK. Delay, of course, can mean either of two things: either the mere passage of time—the relevant period in this context being between the date when the article 8 claim is made and the date of its determination (ex-hypothesi by a decision to remove); or it can mean such part of that period as exceeds a reasonable time for the decision-making process, for the passage of which, therefore, the immigration authorities are open to criticism.

35.  With regard to the mere passage of time, I agree entirely with what Lord Bingham says at paras 14 and 15 of his opinion. Clearly in so far as the passing months or years result in the creation or strengthening of family or private life ties in the UK (or, indeed, the weakening of such ties abroad), this will be relevant to the applicant’s situation at the time the decision is taken. So too, of course, will be any developments which may militate against the applicant’s claim: the collapse of his marriage or the easing of the situation in his home country so as to allow the family to live together there rather than here. All this hardly needs saying.

36.  Equally it seems clear to me that the Court of Appeal was right in Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, [2003] INLR 349 to decide that the delay in that case was such as to make it disproportionate to require the appellant to return to Kosovo to apply there for entry clearance so as to be allowed to rejoin his refugee wife here—facts somewhat similar to those in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 although with the additional feature of delay. But it is of course one thing for delay to preclude the Secretary of State from insisting on the procedural requirement that applications on marriage grounds be made from outside the UK, quite another to suggest that delay (even if blameworthy) should by reason of that fact alone affect the substantive determination of the application. As my Lord observes at para 13 of his opinion, Laws LJ was clearly right in Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, [2005] Imm AR 504, to hold that there is no question of the Secretary of State being required to make a hypothetical decision having regard to the likely strength of the claim at some earlier date, whether by reference to the facts or to the policies as they then were.

37.  I have no doubt too that Mr Sales QC was right to concede that the passage of time may well weaken the argument ordinarily available to the Secretary of State based on precariousness. As Lord Bingham points out at para 15, as time passes the applicant’s expectations of the permanence of his relationships grows. Or, putting essentially the same point a little differently, it is unreasonable to expect the applicant to put his life on hold and not to develop or deepen relationships whilst he remains here.

38.  This consideration, however, should not be taken too far. Two recent decisions of the ECtHR bear on the point. I confine myself to the most directly relevant passages in the judgments. In Konstatinov v The Netherlands (Application 16351/03, 2007), para 49, the Court said this:

“[T]he Court notes that the applicant has never held a Netherlands provisional admission or residence title and that the relationships relied on by her were created at a time and developed during a period when the persons involved were aware that the applicant’s immigration status was precarious and that, until Mr G complied with the minimum income requirement under the domestic immigration rules, the persistence of that family life within the Netherlands would remain precarious. This is not altered by the fact that the applicant’s second request for a residence permit to stay with Mr G filed on 1 November 1991 was left undetermined for a period of more than seven years because her file had been mislaid by the responsible immigration authorities . . .”

In the yet more recent case of Nnyanzi v The United Kingdom (Application No. 21878/06, 8 April 2008) the applicant submitted in support of her article 8 private life claim that “the State was responsible for several instances of delay during the processing of her asylum claim and subsequent human rights appeal, which rendered her case exceptional. She had been living in the United Kingdom for almost ten years". (para 70). In rejecting the claim the Court said:

“Her stay in the United Kingdom, pending the determination of her several asylum and human rights claims, has at all times been precarious and her removal, on rejection of those claims, is not rendered disproportionate by any alleged delay on the part of the authorities in assessing them.” (para 76).

39.  The one point at which I respectfully differ from Lord Bingham is with regard to the relevance of delay “in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control". In para 16 of my Lord’s opinion (and in the supporting opinion of my noble and learned friend Lord Hope of Craighead) the term delay is used in the second of the two senses I outlined earlier: blameworthy “delay” resulting from a “dysfunctional system".

40.  I recognise, of course, that delay, blameworthy or not, may lead to differences of result between the claims of one aspiring immigrant and another (as here between the appellant and his cousin). But that may happen whenever facts and policies change. The imperative to my mind is that there be consistency of treatment between applicants, namely that the claims of all applicants are decided on the basis of their substantive merits at the time when the respective claims are decided. It is not that all claims of equal merit when made shall be decided in the same way. As time passes, some claims may get stronger, others weaker, as the facts and policies change.

41.  In short, I cannot accept that delay may be relevant in reducing the weight to be accorded to the requirements of fair and firm immigration control. Ideally, of course, immigration should be controlled efficiently and expeditiously and not be subject to long delays and repeated mistakes as in the present case. But the general public interest in the application of the Secretary of State’s substantive legal rules and policies (which include only allowing article 8 claims when they are substantively made out on the facts) is not diminished and should not be overridden because the system is sometimes incompetently operated. I respectfully agree with May LJ’s judgment on this issue in R (Ajoh) v Secretary of State for the Home Department [2007] EWCA Civ 655 at paras 37 and 38:

“[I]t is not the function of the Court to discipline or punish the Secretary of State and his Department. The Court’s task is not, I think, to pass a judgment on the nature and characterisation of the delay, but on the nature and strength of [the appellant’s] rights under article 8 including those resulting from the delay. Because the balance to be struck is between the nature and strength of the applicant’s article 8 rights as they have become and the need to maintain consistent and fair immigration policy and procedure which remains broadly constant notwithstanding delay in individual cases, I am not personally convinced of the logic of the proposition that extreme individual cases of delay may for that reason alone diminish the balancing strength of the policy and procedure.”

42.  I accept, as stated, that the longer the passage of time before the decision is taken, the more likely it is that the strength of the article 8 claim will be affected: family or private life ties may be created, lost, strengthened or weakened and it will become increasingly difficult for the Secretary of State to rely upon the precariousness of the applicant’s immigration status when bonds are formed and relationships entrenched to discount their strength. But I cannot accept that it is necessary or appropriate to investigate the reasons for the delay, to characterise it as excusable or blameworthy, to decide when the decision should ideally or could reasonably have been taken, or, as my Lords’ approach would require, form a judgment on whether in any particular case the system was “dysfunctional” (still less, as earlier cases put it, “a public disgrace” or “a national disgrace”). These matters should not be relevant to the striking of the proportionality balance. Article 8 claimants ought not to be advantaged merely because of deficiencies in the control system. If the public interest otherwise requires that a claim fails, it should not succeed merely because it might have been stronger had it been determined earlier or because the control system should have been better administered.

 
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