Secretary of State for the Home Department v Aga

J U D G M E N T

1. THE PRESIDENT: I shall ask Lord Justice Latham to give the first judgment.

2. LORD JUSTICE LATHAM: This is an appeal to this court from a determination of the Immigration Appeal Tribunal of 23rd September 2004. By that determination the Tribunal allowed an appeal by the respondent from a decision of an adjudicator dated 11th September 2003. In that decision the adjudicator considered an appeal by this appellant from a decision of the respondent to refuse him leave to enter this country, the appellant having claimed asylum and having claimed that his removal from this country would be a breach of his rights under Article 8 of the European Convention on Human Rights. The adjudicator dismissed the appeal so far as it related to the asylum claim, but allowed it in relation to the claim that his removal would result in a breach of his rights under Article 8.

3. The background to the appellant's appeal was that he was a national of Kosovo and when he was 15 he came here by lorry with his cousin. That was in August 1998. He joined his brother, who is 20 years or so older than him, who had come shortly before the appellant in June 1998. It is common ground that the appellant has lived with his brother ever since. In fact his brother married in 1999 a girl who was given refugee status. He himself had been refused leave to enter this country. He appealed against that decision, and in August 2001 his appeal was successful.

4. It was in those circumstances that the appellant claimed a private and family life with which his removal from this country would interfere. He has been (and there is again no dispute about this) a successful scholar at school in this country, and after school he has been attending college. The precise present position is not known to this court, but at the time that the matter was before the adjudicator he was taking a course in information and computer technology and was hopeful of being able to obtain either useful employment, or a place at university.

5. There is no doubt that the appellant came here as a genuine refugee and it was the consequence of delays in the appellate system which meant that his application for asylum was not ultimately resolved by the respondent until 4th March 2003 - that is, four years and eight months after he made his claim for asylum - and by which time his claim for asylum had been overtaken by events in Kosovo. It is part of the appellant's case that had his application been dealt with timeously he would have been given refugee status and permitted, in one form or another, to remain here.

6. The adjudicator, having related the history, gave his decision in paragraph 13 of the determination in the following terms:

"It is said by the respondent in effect that he could as a robust young man now aged 20 make his way back in Kosovo, pick up the threads of his life and indeed find a home, work and if he wished, further education. That may or may not be. The question I am concerned with, taking account of the length of time that the appellant has been here, is whether or not he should be 'wrenched' from the only home that he has known since 1998 and denied the opportunities of achieving fully his aim of higher education and becoming a useful citizen in the United Kingdom. I find that his achievements should be recognised, the genuineness and sincerity of his intentions not being in doubt. His older brother succeeded with his claim. I noted that his brother's wife had herself achieved refugee status. The important point, however, is that his brother's family life of which the appellant now forms a part, was found in his case to be such a life as should not be interfered with. I equally am satisfied that I should adopt the same approach with regard to this appellant on the basis that it would not be 'proportionate' for him to be removed back to Kosovo at this time when - and I agree with Miss Gable - he would be most severely disadvantaged. It is a matter of weighing the balance between the interests of maintaining immigration control and the rights of the individual. To be wrenched away from family and educational opportunity would I find be 'disproportionate'. This appeal is accordingly allowed on 'human rights grounds'. His asylum claim on the other hand is manifestly unfounded in the present circumstances. It is in no way his fault that he has remained in the UK with his claim unresolved. Length of time is an important factor in my decision."

7. The respondent appealed that decision, as I have indicated, to the Tribunal, on grounds of appeal which include as ground 1 the following:

"It is respectfully submitted that the Adjudicator has erred in allowing the appeal under Article 8 of the Human Rights Act. First, the appellant's family life claim is based on his relationship with his brother and sister-in-law. It is submitted that this relationship between siblings could not constitute a strong family relationship, as one between spouses or a parent and child. Therefore it would not be disproportionate to return the appellant to Kosovo, having regard to the requirement to maintain immigration control."

8. It is clear that that ground was essentially asserting that the decision of the adjudicator was perverse, in that, had he applied the right test in determining proportionality, he could not have come to the conclusion that he did. Indeed, that is the basis upon which the Tribunal considered the appeal. The significant paragraph in the decision of the Tribunal is paragraph 4, which reads as follows:

"Bearing in mind that there was no human rights based right to education; the respondent was no longer a minor and, to the best of Ms Gable's recollection, there was no material evidence going to show any significant measure of dependency upon the brother at the material time; nor evidence of a family life that showed continuing dependency or a relationship beyond affection and companionship (see Kugathas [2003] EWCA Civ 31); it is difficult to see on what evidence the Adjudicator was able to reach the view that removal was disproportionate."

9. The appeal to this court on behalf of the appellant is based essentially on three propositions. First, it is submitted that in so far as the grounds of appeal to the Tribunal identified a point of law, it was the assertion of perversity; secondly, that in so far as the Tribunal considered that issue it came to an unsupportable conclusion, in that the adjudicator's decision was defensible; and thirdly, and in any event, the Tribunal did not deal with the issue of delay which had, it is submitted, clearly been a part of the reasoning of the adjudicator.

10. Dealing with those grounds which Mr Buley has sought to argue before us this morning, the first seems to me to be one which is without substance in this sense. The ground of appeal to which I have referred was clearly one which was capable of engaging the Tribunal in the issue of whether or not the adjudicator had applied the right test in determining proportionality, as I have said.

11. It is in fact clear, from the passage that I have cited from the adjudicator's decision, that he did not apply the right test, not that he is to be blamed for that at the time. But the position now is that the appropriate test which he should have been considering was that expressed in Huang v Secretary of State for the Home Department [2005] 3 WLR 488. This court made it plain that the question that has to be asked in cases such as this engaging Article 8 is whether or not the circumstances can be described as truly exceptional, so as to override the general immigration policy which the Secretary of State is entitled to maintain in all other circumstances. That was a decision which postdates the adjudicator's consideration; and it is clear that he did not approach this case in that way. Accordingly, the decision of the adjudicator is one which is flawed. But that, of course, was not the basis upon which the Tribunal looked at the matter because, again, it was not at that time concentrating on the question as undoubtedly it would have done had Huang been available to it at that time.

12. However moving on from that first submission by Mr Buley, the fact is that the Tribunal, it seems to us, failed adequately to engage with the decision of the adjudicator. The real vice in the adjudicator's decision was that he equated the decision in relation to the brother to the decision which he had to make in relation to the appellant. The brother's position was quite different from that of the appellant. The brother had a claim based upon his relationship with his wife which was clearly different in kind from the relationship between the appellant and the family unit of which he was undoubtedly accepted by both the adjudicator and the Tribunal to be part.

13. A final problem in relation to the Tribunal's decision is that it failed to deal at all with the question of delay, which undoubtedly had influenced the adjudicator. But again unfortunately the adjudicator's decision is not one which can provide any secure basis for any attempt by Mr Buley to persuade us to allow that adjudication to stand because the adjudicator does not in his reasoning identify in precisely what way (as he put it) "length of time" was taken into account by him. It is unclear whether he simply meant that this appellant had been in this country by the time of the decision before him for five years, or that the length of time that it took to deal with his application for asylum meant that he had been significantly disadvantaged and that that was a matter which he should take into consideration, because undoubtedly he, on the authorities, would have been entitled to do so.

14. It seems to me in those circumstances that the Tribunal's decision cannot stand, it not having dealt properly with the matters which were before it, but neither can we leave the matter as determined by the adjudicator, for the reasons that I have given. It follows that, in my view, the appeal should be allowed and the matter remitted to the Tribunal for reconsideration, and that is the order that I would propose.

15. LADY JUSTICE HALLETT: I agree.

16. THE PRESIDENT: I also agree.

ORDER: Appeal allowed and the matter remitted to the Asylum and Immigration Tribunal for reconsideration; detailed assessment of the appellant's publicly funded costs.

(Order not part of approved judgment)

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