Boran v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE BROOKE: This is an appeal against the decision of the Immigration Appeal Tribunal on 30 September 2004 when it allowed an appeal by the Secretary of State against a decision of an adjudicator on 16 July 2003, when he allowed an appeal by the appellant on human rights grounds under Article 8 of the European Convention on Human Rights and dismissed it on Refugee Convention grounds. Nothing turns on the Refugee Convention issue.

2. The appellant is a single man. He was born in Turkey in June 1973. He came to this country in July 1997 and applied for asylum. He was interviewed shortly afterwards. On 10 September 1997 his solicitors wrote to the Secretary of State and made comments on the interview. They enclosed a statement by the appellant. It took until 17 October 2001 for the Secretary of State to refuse asylum and to set removal directions. A notice of appeal was filed timeously on 1 November 2001. For reasons which are unclear the appeal papers were not submitted by the Secretary of State to the Immigration Appellate Authority or served on the appellant until April 2003.

3. There was a hearing before an adjudicator on 2 July 2003. The adjudicator allowed the appeal on human rights grounds. The bulk of his determination is concerned with a summary of the history of the matter. The adjudicator found the appellant credible. He found that he and his family had supported the MLKP (a Marxist Leninist Party). In 1991 he had been detained and ill treated. In 1992 he started military service, but he then deserted and was therefore detained in prison for a year-and-a-half. When he completed his service and returned home he resumed his activities with the MLKP. A brother was murdered, and he was harassed by the police.

4. In February 1997 he left Turkey. So far as the Refugee Convention grounds are concerned, the adjudicator found that, at best, he was a low level MLKP supporter. He had been detained and ill treated once and harassed on other occasions, but he was unlikely to be of interest to the authorities. Accordingly his asylum claim was dismissed.

5. The adjudicator dealt with the human rights side of the matter quite briefly in the final substantive paragraph of his determination. He said:

"The appellant has been in the UK since 1997. The refusal letter was issued four years later, in September 2001, and according to the appeal file the appeal was not received by the IAA from the Home Office until April 2003. It would not be surprising if during his stay in the UK the appellant established a family life. Indeed I find it to be so. According to the evidence of his brother Ali, whom I found credible, the appellant lives in a community of about 30 members of his family and some 300 families from his village in Turkey. As Ali put it this is a 'large environment'. Many of his family members have been granted refugee or some other status. He lives with Ali and his family and he became engaged a few months ago to the sister of Ali's wife, though it has to be said that the appellant's fiancée is herself an asylum seeker on whose case the Home Office has yet to make a decision. In Turkey are the appellant's mother, two sisters and one brother. He speaks to his mother once a month by phone. On the facts of this case I find that he has established a family life in the UK and that his removal would be a disproportionate interference with it."

6. This was one of the many occasions on which the Secretary of State was not represented at all before the adjudicator. The adjudicator records the expert evidence which was before him to the effect that the appellant had a range of symptoms consistent with moderate to severe depression and symptoms of chronic anxiety. He avoided crowds and darkness. He experienced intrusive thoughts and nightmares and he found it difficult to concentrate. He stayed with his brother and family who looked after him. He could manage living without his brother.

7. When the matter came before the Immigration Appeal Tribunal they had the benefit, denied to the adjudicator, of the decision of the House of Lords in Razgar v Secretary of State for the Home Department[2004] UKHL 27, [2004] 2 AC 368. They initially dismissed two contentions made by the Secretary of State, one of which was that the appellant did not enjoy a sufficient family life potentially to engage Article 8. They then went to the heart of the matter and applied the decision of the House of Lords in Razgar. They quoted the well known passage from paragraph 20 of Lord Bingham's speech. In paragraph 24 of their determination they say:

" ..... the fact remains that Lord Bingham emphasises that there will only be a small minority of exceptional cases where a decision made in accordance with immigration control will be disproportionate. The adjudicator did not approach the question of proportionality with this in mind. For that reason alone ..... we conclude that the adjudicator erred in law.

The adjudicator having made a material error in law on the approach to the question of proportionality, it is therefore for the tribunal to consider the matter itself. We have done so. We have in mind all the facts as recorded by the adjudicator and set out above, especially the fact that the claimant came to the United Kingdom as long ago as 8 July 1997, that he has lived with his brother and family since then, that he has the difficulties referred to in paragraph 9 of the determination, and that he is to a substantial extent looked after by Ali and his family. We have in mind the extended family and the even larger group of families from ..... Turkey which constitutes a 'large environment' as described by the adjudicator of which he is part. We have in mind the presence of his sisters as well. We also note that he has obtained work in the United Kingdom. We also take into account the claimant's engagement to the sister of Ali's wife. However, even taking all of these matters cumulatively, we cannot see that this is an exceptional case. Nor can we see how it can be said that a decision to remove the claimant would be outwith the range of reasonable responses by the Secretary of State. We note that, although to a substantial extent looked after by Ali and his family, the claimant could manage living without Ali, has obtained work in the United Kingdom (and is clearly capable of independence in this resepct) and has two sisters, a brother and a mother still living in Turkey - as regards his mother he is in contact on the telephone every month.

There being nothing in the present case sufficiently exceptional to outweigh the lawful implementation of immigration control, we conclude that the Secretary of State's appeal must be allowed."

8. Mr Walsh, who appears for the appellant and has said everything possible on his behalf, has accepted that if the tribunal was entitled to enter into that analysis then it does not disclose any error of law such that this court could interfere. But he submits strongly that the adjudicator did not indeed commit an error of law even though he did not have the benefit of the structure for decision making set out by Lord Bingham in Razgar. He said that it would go without saying that the immigration and asylum system was based on the need for a firm and fair system of immigration control. It was a bit harsh to criticise the adjudicator, particularly as the Secretary of State did not appear before him. He submitted that the adjudicator looked fairly at the whole of the history of the case including the delay.

9. In relation to the delay he drew our attention to what Lord Justice Laws said in the recent decision of Strbac v Secretary of State for the Home Department[2005] EWCA Civ 848 paragraph 25, to the effect that there was no principle one way or other about the effect of administrative delay.

10. This is another of the cases coming to this court in which an adjudicator has taken a decision on Article 8 without the benefit of the House of Lords' decision in Razgar. In my judgment, it is quite clear that through no fault of his own he made an error of law in failing to direct himself along the lines set out by Lord Bingham in paragraphs 17 to 20 of his speech in Razgar.

11. In those circumstances the Immigration Appeal Tribunal were entitled to set aside his decision as being made in error of law and were entitled to embark on the analysis themselves. Mr Walsh cannot fault their analysis.

12. Accordingly this appeal should be dismissed.

13. LORD JUSTICE WALL: I agree.

14. LORD JUSTICE MOORE-BICK: I also agree.

Order: Appeal dismissed