Secretary of State for the Home Department v Alihajdaraj

J U D G M E N T

Tuesday, 13 July 2004

1. LORD JUSTICE TUCKEY: I will ask Mr Justice Jackson J to give the first judgment.

2. MR JUSTICE JACKSON: This judgment is in six parts, namely Part 1 - Introduction; Part 2 - The Facts; Part 3 - The Present Proceedings; Part 4 - The Second Ground of Appeal; Part 5 - The First Ground of Appeal; Part 6 - Conclusion.

Part 1. Introduction

3. This is an appeal against a decision of the Immigration Appeal Tribunal ("the IAT") which had in turn allowed an appeal from the adjudicator. The appellant, Mr Alihajdaraj, has, at various stages of this litigation, been the applicant, the appellant, and the respondent. To avoid confusion I shall adopt the same terminology as the IAT and refer to Mr Alihajdaraj as "the claimant".

4. This appeal concerns the application of Article 8 of the European Convention on Human Rights to an asylum seeker who came to this country from Kosovo at the time of civil war. The tragic events in Kosovo which occurred in the late 1990s have been recounted in many immigration appeal judgments. They do not require repetition today.

5. Article 8 of the European Convention on Human Rights which lies at the heart of this appeal provides as follows:

"8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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. "

Having set out the relevant human rights provision, I can now turn to the facts of the present case.

Part 2. The facts

6. The claimant is a citizen of what was formerly the Federal Republic of Yugoslavia. He was born on 15 January 1978, and he lived in the province of Kosovo. He is of Albanian ethnicity. As a result of the civil strife the claimant fled Kosovo in the summer of 1998. He arrived in the United Kingdom on 4 October 1998 and claimed asylum. The claimant's cousin, Mr Driton Beqiri, arrived at the same time and he too made a claim for asylum. Mr Beqiri was granted indefinite leave to remain on 18 June 1999.

7. I now return to the claimant. The claimant submitted a statement dated 5 November 1998 in support of his claim for asylum, together with Form SEQ. The Secretary of State took no action in respect of this claim for asylum until two years later. On 24 November 2000 the Home Office sent a statement of evidence form ("SEF") to the claimant together with a request that it be completed and returned within 14 days. The claimant failed to comply with this request.

8. On 18 December 2000 the Secretary of State considered the asylum claim on the basis of the materials originally submitted and he refused that claim. In paragraph 9 of his decision-letter, dated 18 December, the Secretary of State stated that the threat of persecution to ethnic Albanians in Kosovo had been eliminated since the end of June 1999 by reason of the presence of international forces.

9. On 4 January 2001 the claimant completed and submitted Form SEF to the Home Office. The Secretary of State considered the new material but, by a supplementary decision-letter dated 4 September 2002, the Secretary of State adhered to his original decision to refuse asylum. The Secretary of State stated (in paragraph 6) that the claimant was not at risk of persecution by Serbs, and (in paragraph 8) that he was not at risk of persecution by the KLA. In paragraph 11 of the supplementary decision-letter, the Secretary of State rejected the claimant's further claims based upon Articles 2, 3, 11, 13 and 14 of the European Convention on Human Rights. It should be noted that at that stage no claim had been made under Article 8.

10. The claimant was aggrieved by the Secretary of State's decision and accordingly he commenced the present proceedings.

Part 3. The present proceedings

11. On a date which is not apparent from our bundle the claimant appealed to an adjudicator against the decisions contained in the Secretary of State's letter dated 4 September 2002. An adjudicator, Mr Malcolm Rothwell, heard the claimant's appeal on 5 March 2003. The claimant gave evidence on his own behalf. He also called as a witness Mr Driton Beqiri, who is his first cousin.

12. In addition to giving evidence about his experiences in Kosovo and the basis of his asylum claim, the claimant also gave evidence about his current family circumstances. He said that he had been unable to contact his parents since the traumatic events of 1998. He had no family remaining in Kosovo apart from one aunt. The claimant's evidence concerning relatives in this country was summarised as follows by the adjudicator:

"He identified his family in this country who have IRL, whose status papers were provided. Driton Beqiri is his first cousin, the son of his father's married sister. Sadush Alihajdaraj is the son of his father's uncle, Merita is his wife, Arian is his son, Nora and Neeta are his daughters. He confirmed that he sees once a week and sometimes more. Sami Alihajdaraj is his brother who is now a Swedish national. Quazim Alihajdaraj is his uncle who with his wife and son are now Norwegian nationals."

13. When Driton Beqiri gave evidence, he said that he had come to the United Kingdom in 1998 together with the claimant. He and the claimant had a very good relationship. They saw each other once a week.

14. After the evidence had been called counsel made their respective submissions. Ms Sergides, counsel for the claimant, advanced a new claim based upon Article 8 of the European Convention on Human Rights. This claim had not been advanced previously in the various applications to the Secretary of State. Furthermore, the Article 8 claim had not been advanced in the claimant's grounds of appeal to the adjudicator. Thus counsel for the Secretary of State may have been taken unawares by the claim based upon Article 8. Unfortunately, neither counsel at the hearing on 5 March cited the Court of Appeal's recent decision in Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, which was plainly material to the new head of claim. The adjudicator duly considered the evidence and counsel's submissions. He promulgated his decision on 18 March 2003. In that decision the adjudicator accepted the factual evidence given by the claimant and Mr Beqiri. The adjudicator rejected the claim for asylum essentially for the same reasons that the Secretary of State had previously given.

15. The adjudicator then turned to the claimant's human rights claim. He rejected the claimant's claim based on Article 3 of the European Convention on Human Rights but he allowed the claimant's claim based upon Article 8. The crucial paragraphs of the adjudicator's decision in relation to Article 8 read as follows:

"5.5. I have referred to the appellant's evidence that he now has six members of his family living in this country who have been granted ILR since June 1999. His first cousin Driton Beqiri is the closest in terms of family membership. The members of the Alihajdaraj family are all more distant relatives; indeed he refers to them in his appeal statement as family friends. Nevertheless, he says in paragraph 21 of his appeal statement that he has known them and lived close to them since he was a small child and considers Sadush to be like a father. He also refers to Driton as being like a brother. Driton himself in evidence identified the strength of that relationship. It is also demonstrated by them having left Kosovo together. Of course Driton did give his support by giving the attending.

5.6. I accept that the appellant has established a relationship with these family members and sees them regularly. He arrived in this country at the age of 20 and has now lived here for 4½ years. He has no close family members in Kosovo that he knows of apart from Driton's mother. It is unfortunate for the Appellant that his own claim and appeal has taken so long to consider, whereas Driton was granted status only 6 months or so after he arrived in this country with the Appellant. Ms Benger was not able to explain it, but the Appellant preferred to problems with his evidence being lost by various Solicitors. There were certainly a delay of two years for whatever reason between arriving in this country and the first refusal of his claim. There was then a delay of two years between his appeal and the hearing. It has often been noted that asylum seekers cannot be expected to put their lives on hold pending the outcome of their claims and this applies with particular force to the Appellant who has found his relatives being granted status while he himself has been in limbo.

5.7. I accept Ms Benger's point that the Appellant is an adult and that in Pervana the Tribunal considered that a young man of around his age is particularly suited to return to contribute to the reconstruction of his country. Yet the peculiarity is that as far as I know his family members were in no stronger position than the Appellant was. Had their claims been considered at the time of the Appellant's then they may have been refused also. They have status now and are not to be expected to return even though the conditions have changed radically since they left. Even so, as Ms Sergides submitted very forcefully at the hearing, it is the Respondent's very system of immigration control that has led to the Appellant's present condition.

5.8. I find that the decision appealed against interferes with the Appellant's established family life in this country. Of course that interference is lawful and for the purpose of immigration control. But I find that the decision is disproportionate to the control of immigration. His closest family members all have established status in this country and some of them and contributing to its economy. The Appellant has been a drain on the economy as an asylum seeker for longer than might normally be expected, partly on account of the very system of immigration control in its broader sense that the Respondent now claims he needs to preserve by removing the Appellant to Kosovo. There is no logic or justice in that proposition in the circumstances that I have considered. I find that the Respondent has not established that the interference with the Appellant's family life is proportionate to its immigration control policy."

It should be noted that in this passage the adjudicator makes no reference to the Court of Appeal's decision in Shala . This was no doubt because that decision had not been drawn to his attention.

16. The Secretary of State was aggrieved by the adjudicator's decision and he appealed to the IAT essentially on two grounds, which I would summarise as follows: (i) the adjudicator erred in concluding that 'family life' within the meaning of Article 8.1 existed; alternatively, (ii) the adjudicator erred in holding that the removal of the claimant to Kosovo was a disproportionate interference with the family life and therefore outside the exception contained in Article 8.2.

17. The IAT heard the Secretary of State's appeal on 2 July 2003. By this date the parties had become aware of the Court of Appeal's decision in Shala . This decision at first blush lent some additional support to the claimant's claim based upon Article 8 and thus added to the Secretary of State's difficulties in pursuing his appeal. It appears from the material before us that the Court of Appeal's decision in Shala loomed large in the argument of both parties before the IAT. The IAT duly considered the issues and counsels' submissions. On 28 August 2003 the IAT promulgated its decision. The IAT rejected the first ground of appeal but allowed the Secretary of State's appeal on the second ground. In relation to the second ground the IAT reasoned as follows. On close analysis, the Court of Appeal's decision in Shala does not avail the claimant and should be distinguished. The adjudicator was in error in his assessment of the issue of proportionality; the proper finding was that the proposed interference with the claimant's family life was proportionate to the Secretary of State's immigration control policy.

18. The claimant was aggrieved by the decision of the IAT. He now appeals to this court on two grounds, which I would summarise as follows:

1. In the circumstances of this case the IAT was not entitled to interfere with the decision of the adjudicator.

2. The IAT erred in its analysis of the Court of Appeal's decision in Shala and in applying that decision to the facts of this case.

In my opinion it is easier to address these grounds in reverse order. I shall therefore deal first with ground 2 and then with ground 1.

Part 4. The Second Ground of Appeal

19. The second ground of appeal requires a careful analysis of the Court of Appeal's decision in Shala [2003] EWCA Civ 233. The appellant in Shala was an ethnic Albanian from Kosovo who fled to this country in June 1997. He had a strong claim to asylum, or at least for exceptional leave to remain. Unfortunately, the Secretary of State failed to process his claim for just over four years. By then the situation in Kosovo had changed and the appellant's claim for asylum was dismissed. During the intervening period the appellant had married a woman who was entitled to remain in the United Kingdom as a refugee. The appellant had established a firm family life with his wife and stepchildren. Accordingly, the appellant had an independent claim to remain in this country based upon Article 8 of the European Convention on Human Rights. That claim was rejected by the Secretary of State, the adjudicator and the IAT. The Court of Appeal, however, allowed the appellant's appeal and upheld his right to remain in the UK on the basis of Article 8.

20. The crucial futures of Shala which led to the Court of Appeal's decision were the following:

1. The Secretary of State had delayed for over four years in dealing with the appellant's claim for asylum. If the Secretary of State had dealt with the matter promptly the appellant would probably have been given the right to remain in this country before the critical moment in June 1999.

2. The appellant had a strong family life in this country. Indeed his family ties were such that if he were deported to Kosovo he would shortly be permitted to return as a spouse.

3. The Secretary of State, the adjudicator and the IAT failed to have regard to the four-year delay and its consequences. They failed properly to carry out the balancing exercise required by Article 8.2.

4. Deportation of the appellant to Kosovo would be an interference with his family life. That interference would be disproportionate. In other words the interference could not be justified by reference to the Secretary of State's general policy that persons entering the UK as spouses should make their applications from abroad.

21. The four critical features of Shala which I have just identified are all absent from the present case. First, the Secretary of State's period of delay was substantially shorter in this case. In particular, the critical period of time, namely that before June 1999, was only about half a year. It is far from clear in this case that the claimant's claim for asylum, or for some other form of leave to remain, would have succeeded if it had been processed with reasonable dispatch. Mr Driton Beqiri's claim only succeeded by a very narrow margin. Secondly, the claimant's family life in this country is far more tenuous than that of the appellant in Shala . In particular, the claimant is not someone who has a valid claim to return and live in this country by reason of his marital status. Thirdly, this is not a claim in which anyone has failed to have regard to the period of delay and its consequences. There was no failure by the Secretary of State, since the Article 8 claim was not advanced for his consideration. Nor was there any failure by the adjudicator or the IAT since both those bodies carefully considered the extent of delay and its consequences.

22. I therefore come to the conclusion that Shala is a decision which turns upon its own facts. I note that the Court of Appeal in Janjanin [2004] EWCA Civ 448 came to a very similar decision. Upon analysis, and perhaps contrary to first impressions, Shala is not a decision which assists the claimant in the present case.

23. The IAT in the decision now under appeal carried out its own analysis of Shala at paragraphs 10-12. The IAT concluded that Shala should be distinguished and that the reasoning in Shala did not provide a basis for upholding the decision of the adjudicator. In my view, the criticisms which the claimant makes in skeleton arguments of paragraphs 10-12 of the IAT's decision are unsound. These criticisms have not been developed orally or at any length. Shala is ultimately of limited relevance to the present appeal. Nevertheless, the IAT was quite correct to focus upon Shala in considerable detail, since this was an authority upon which the claimant's counsel placed much reliance.

24. For all these reasons I reject the second ground of appeal.

Part 5. The first ground of appeal

25. This was the ground of appeal upon which Miss Rogers, counsel for the claimant, concentrated her oral submissions today. Before dealing with this ground I should first set out the relevant parts of the IAT's decision:

"8. We consider first the family life point. He consider that the Adjudicator was entitled to conclude that there is family life in this case unusual though that must be in the case of a cousin. The Determination is a little unclear as to whom it is that the Claimant sees once a week, as to whether this is a reference to Driton or to other family members. In his statement at paragraph 20 the claimant says that he sees Driton very often and they have become close over the ordeal they endured together of travelling to the United Kingdom. We bear in mind the long period of time over which the Claimant has known Driton and the experiences that they have in common and the fact that he has been in the United Kingdom and in contact with Driton now for some four and a half years. We consider that it can be properly found as it was by the Adjudicator that there is family life.

9. The essential issue in this case as so often in Article 8 cases is that of proportionality. It seems from the Claimant's statement that he has made efforts to contact his parents through friends in the Red Cross and making general enquiries but this has been to no avail. Other than Driton's mother, the Claimant's aunt, who remains in Kosovo, he therefore has no family in Kosovo. Mr Mullen suggested to us that as an aspect of proportionality that had not been considered by the Adjudicator there was no insurmountable obstacle to the family members returning to Kosovo given the changed circumstances there. There may be some force in that comment but we consider that the essential question is whether it will be proportionate to return the Claimant on the basis that there would be a breach in his family life with his relatives who after all have leave to remain in the United Kingdom and are entitled to exercise their right to stay here."

I pass over paragraphs 10-12 as these deal with Shala .

"13. In conclusion therefore we consider that the Adjudicator was in error in his assessment of the issue of proportionality in this case. We consider that a proper finding of proportionality would have been to find that it had been shown that the interference with his family life is proportionate to the Secretary of State's immigration control policy.

14. We therefore allow the Secretary of State's appeal."

26. Miss Rogers attacks these paragraphs of the IAT's decision as being a wholly unsatisfactory basis for overturning the decision of the adjudicator. She submits that the adjudicator heard the evidence and carried out the balancing exercise required by Article 8.2. It was not proper for the IAT to substitute its own views as to where the balance lay. In support of this argument Miss Rogers relies upon the decision of the Court of Appeal in Subesh v Secretary od State for the Home Department [2004] EWCA Civ 56. In Subesh , the Court of Appeal analysed in detail the circumstances in which the IAT is entitled to overturn the decision of an adjudicator. Laws LJ, giving the judgment of the court, formulated the correct test as follows at paragraph 44:

"An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within that latter category."

27. Miss Rogers submits that the IAT did not set out any process of reasoning which required it to adopt a different view from the adjudicator. Furthermore, the IAT did not identify the relevant factors on each side of the scale or carry out any form of balancing exercise. Accordingly, the IAT's decision is flawed and should be reversed by this court.

28. Miss Anderson, for the Secretary of State, submits that the IAT's reasoning, although laconically expressed, is adequate. Furthermore, even if the reasons given by the IAT were deficient, this was in truth an appeal which could only be decided one way. On the primary facts as found by the adjudicator it could not possibly be said that the removal of the claimant to Kosovo was disproportionate.

29. In assessing these competing arguments I must bear in mind two matters. First, the adjudicator was carrying out the first reasoned assessment of the claimant's rights under Article 8. He was not reviewing some earlier decision of the Secretary of State on the same matter. The adjudicator had to carry out this exercise on the basis of the facts as they were in March 2003. Secondly, there is not - and in the circumstances of this case there could not be - any challenge to the adjudicator's findings of primary fact as recorded in Part 3 of this judgment. This is the factual foundation from which any balancing exercise either by the adjudicator or by the IAT must proceed.

30. The legal framework within which cases such as this must be considered is conveniently formulated in paragraph 17 of Lord Bingham's speech in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 17:

"In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. 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?"

31. As counsels' arguments developed in the course of today, the answers to questions 1-4 became common ground. They are "Yes" in each case. The real battleground between the parties concerns question 5. The adjudicator answered that question "No". The IAT held that the adjudicator was wrong in that conclusion.

32. In relation to question 5 Lord Bingham gave guidance as to the correct approach in paragraph 20 of his speech in Razgar :

"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department Kacaj [2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:

' although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derrogation from the rights will be proper and will not be disproportionate.'

In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. 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."

33. Against that background, I turn to the adjudicator's reasoning from section 5 of his determination. This has been quoted in Part 3 of this judgment. In my view, that reasoning is defective for six reasons:

1. The adjudicator did not pay any proper regard to the well-established need to control immigration in accordance with the Immigration Rules (HC 395). The maintenance of firm immigration control has been recognised by the courts as a legitimate policy in a long line of cases culminating most recently in Razgar .

2. In carrying out the balancing exercise the adjudicator paid scant regard to the tenuous nature of the family life which the claimant had established under Article 8.1. The claimant did not cohabit with any of his relatives. His main contact with the extended family comprised weekly meetings with his cousin, Driton Beqiri. As the IAT observed in paragraph 5 Driton Beqiri appears to have been the claimant's closest relative in this country.

3. The adjudicator treated the Secretary of State's delay in processing the claimant's asylum claim as a highly material factor. This was incorrect. For the reasons stated in Part 4 of this judgment this case was far removed from cases such as Shala , where delay is a major factor.

4. The adjudicator treated as a relevant factor the fact that Driton Beqiri's asylum claim was processed just before the cut-off date of June 1999. In my judgment this was wrong. The commendable speed with which Mr Beqiri's claim was resolved does not lend any weight to the argument that it is disproportionate to deport the claimant.

5. The adjudicator acknowledged that the claimant was a young adult, and that young men are particularly suited to return and contribute to the reconstruction of their country. However thereafter the adjudicator appears to have attached no weight to this factor.

6. In paragraph 5.8 the adjudicator took into account some general considerations such as the fact that the claimant had been a drain on our economy for some time. These general considerations were irrelevant.

34. I turn now to the decision of the IAT. It must be said straightaway that the reasons given by the IAT for overturning the adjudicator's decision are sparse. It is true that the IAT did not have the benefit of this court's decision in Subesh to guide it as to the test which should be applied. Subesh was not decided until March 2004. Nevertheless, even in the dark age before Subesh , it was clear that the IAT could not simply substitute its own appraisal of the facts for that made by the adjudicator. The IAT needed to identify clear reasons why the adjudicator was wrong.

35. I have considerable sympathy with the criticisms which Miss Rogers makes of the IAT's paucity of reasoning. On the other hand, it seems to me that this was an appeal to the IAT which could only have one possible outcome. The adjudicator's decision was flawed for the reasons previously mentioned. The balancing exercise required in this case by Article 8.2 of the European Convention on Human Rights was bound to come down firmly in favour of removing the claimant to Kosovo. I reach this conclusion for five reasons:

1. Although the claimant has relatives in the UK his relationship with those persons does not fall into any of the categories defined in Part 8 of the Immigration Rules.

2. The claimant has no valid claim to asylum and no other legal right to remain in this country.

3. The claimant is a healthy young man. His closest living relative (a maternal aunt) still lives in Kosovo. The circumstances which caused the claimant to leave Kosovo have long since changed.

4. The family life which will be infringed by the claimant's removal to Kosovo is of a tenuous nature and carries only a modest weight in the scales.

5. On the other side of the scales the policy of maintaining effective immigration control carries substantial weight.

For all these reasons, I conclude that the IAT was right to allow the Secretary of State's appeal. Although the IAT's reasons could and should have been more fully expressed, nevertheless the claimant's first ground of appeal to this court must fail.

Part 6. Conclusion

36. For the reasons set out in Parts 5 and 6 of this judgment, both the claimant's grounds of appeal in my judgment fail. Accordingly, this appeal should be dismissed. For my part I am grateful to both counsel for their full skeleton arguments and for their concise oral submissions today.

37. LORD JUSTICE CLARKE: I agree.

38. LORD JUSTICE TUCKEY: I also agree.

(Appeal dismissed; detailed assessment of Appellant's publicly-funded costs).