Jasarevic v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE BUXTON: The appellant, Mr Ismet Jasarevic, complains of removal directions that the Secretary of State issued in his case as long ago as 20 September 2001 following refusal by the Secretary of State of an asylum application.

2. Mr Jasarevic has a long history in this country, some of it of a rather chequered nature. He was born in September 1957 so he is now 47 years of age. He was born as a citizen of what was then the Federal Republic of Yugoslavia. He is now, by nationality, a citizen of the Republic of Serbia and Montenegro. He came to this country in November 1986 and was granted leave to enter as a visitor, he being then 29 years of age. That leave was extended until 31 December 1987. Since that date he has had no permission to be in this country and has been here unlawfully. During that time, according to evidence given in the tribunals below, he had learned to speak fluent English, engaged in certain business activities and also had a relationship, of a nature that the tribunals below were not able fully to apprehend, with a lady, Miss Brady.

3. On the other side of the coin, during that time he had committed a number of offences. He was given a 24-month conditional discharge and fined £50 in November 1991 for an offence about which we know no more than that, although it will be noted that it did not attract a very condign penalty. However, much more seriously, in March 1993 he was sentenced to 42 months' imprisonment for an offence of supplying a class A drug. It is to be noted in passing that apparently the judge who sentenced him did not make any recommendation for deportation. That offence - and Mr Jasarevic's presence in this country when committing it - does not appear to have come to the attention of the Secretary of State; or, if it did, no action was taken in respect of Mr Jasarevic's presence by the Secretary of State. His next offence was in May 1999 when he was fined £150 for possession of cocaine. Also it seems that in November 1999 - though the date is not quite certain on the papers before us - Mr Jasarevic was arrested for an assault upon the lady we have mentioned, Miss Brady. He was convicted of that assault and received another prison sentence of four months duration.

4. When he was arrested he was found to be in possession of a false passport. We were told from the bar that he had that passport not in order to avoid any immigration rules or any inability to visit other countries, because he had apparently no intention of doing the latter; he had it in order to enable him to obtain work in this country. Nonetheless, first of all, holding a false passport is an extremely serious matter, particularly for a person in Mr Jasarevic's situation; and, secondly, its use unfairly and dishonestly places Mr Jasarevic in a position in the job market in this country that he does not lawfully hold.

5. It was when he came to the notice of the authorities on that occasion of his arrest that he claimed asylum, as long ago as 20 September 1999. That claim was refused in September 2001 and removal directions were set. He claims to remain in a relationship with Miss Brady, though the evidence as to that before the tribunals below was far from clear. He has a sister who is a British citizen and also a brother who is present in this country, and whose immigration status is not clear to us.

6. Mr Jasarevic's appeal against the refusal of asylum and the removal directions came before an adjudicator as long ago as November 2003. He appealed both in respect of the asylum decision and under the European Convention on Human Rights. The adjudicator, who gave a careful and detailed judgment, rejected the asylum claim on the basis that Mr Jasarevic did not have a reasonable fear of persecution should he be returned to his home country, and also held that the conditions that would meet him there were not such as to infringe his rights against the authorities of this country under Article 3 of the European Convention. There is no appeal in respect of either of those determinations, both of which, if I may respectfully say so, were clearly correct.

7. The adjudicator then turned to Article 8 of the Convention, saying this in his paragraph 28:

"The appellant has been in the United Kingdom since November 1986, ie, for almost 17 years. He has previously, although he may not now have, a relationship with a British citizen. He has a sibling resident in the United Kingdom and he has undergone medical treatment in the United Kingdom. I find that the appellant has a private life sufficient to engage Article 8 and that his removal would be an interference in his right to respect for that private life."

The adjudicator went on to hold that, by contrast, Mr Jasarevic had no claim to a family life under Article 8 in this country: principally, but not exclusively, because the blood family to which he appealed consisted of adult siblings, a situation which does not normally attract Article 8. As to his relationship with Miss Brady, the evidence before the adjudicator was far from sufficient to establish the certainty of that relationship. Granted that the adjudicator found that a private life existed in Article 8 terms in the United Kingdom, that was sufficient to engage that Article.

8. The adjudicator then went on to address in some considerable detail the question of whether, if Mr Jasarevic were to be removed from the United Kingdom that would be a proportional determination, having regard, as she said, to the legitimate pursuit by the State of its objectives in relation to immigration control. She set out in detail the factors that she had taken into account, which it is only fair to her to record in this judgment:

"31 The factors I have taken into account include (in summary):

• Although the appellant has previously established a business that employed an unspecified number of people, he is not currently employed and does not appear, on the basis of the evidence before me, to have been for at least a year. Although his brother said that he intended establishing a business with the appellant next year there was no evidence other than oral evidence to this effect, no business plan and no indication to what extent the appellant would, in the light of the medical evidence be able to work in any event.

• The length of residence of the appellant in the United Kingdom at the time of his application for asylum (13 years), that a further 13 months elapsed prior to the respondent interviewing him in connection with his asylum application, that a decision on the application was not made for a further 7 months (September 2001) by which time the appellant had been in the United Kingdom for almost 15 years, that a supplementary reasons for refusal letter was served almost a year after that which did not address the '14 year concession' application and that by the time of the hearing the appellant has been in the United Kingdom for almost 17 years.

• That the appellant applied for asylum when arrested.

• That the appellant speaks fluent English.

• The appellant has been convicted of four offences, two of which (in 1993 and 1999) resulted in custodial sentences, although he was not recommended for deportation. One of the serious offences was for passport offences and the other for supply of a Class A drug.

• The '14 year concession'. Although I am unable to adjudicate on Home Office policies, the principles set out in the policy can be considered as elements to be considered in assessing the balance to be drawn between maintaining effective immigration control and the effect on individuals. This concession was introduced to enable the respondent to comply with the European Convention on Establishment, which was ratified by the United Kingdom in 1969. Criminal offences which are spent under the Rehabilitation of Offenders Act 1974 (the conditional discharge in 1991 would fall into this category) and behaviour which happened over 5 years previously have not normally been considered sufficient to outweigh positive ties with the United Kingdom. My understanding of the operation of the policy was that where the continuous residence was in excess of 14 years, unless the countervailing factors were exceptionally serious indefinite leave to remain would usually be granted.

• I have doubts whether there is in fact a subsisting relationship between the appellant and Ms Brady. If there is and she is 'much better' and if the relationship has subsisted for the length of time claimed I can see no reason why at the very least a letter could not have been written by her or her parents or others who have seen them together to confirm this.

• He is suffering from depression.

• His mother and another brother are in Serbia although his contact with them is limited and he is not close to them.

• There have been significant changes in Serbia since he left there, some of which mean that he would no longer be at risk of harassment although others mean that he would, if returned, be returning to a very different country to the one he left in 1986."

9. On that basis the adjudicator came to the following conclusion that she set out in paragraph 35:

"I am very mindful of the serious drug offence of which the appellant was convicted, albeit in 1993 and that he was further convicted in 1999 of possession of a class A drug albeit what must have been a small amount. I am also very mindful that it appears from his conviction on passport offences that he attempted to circumvent immigration control by producing a false passport in 1999. Set against that is the length of his residence (13 years at the time of the application for asylum in 1999 which would not have been completely unrealistic at that time and now almost 17 years, the delay being through no fault of his) and that he has spent an extremely large part of his life here in the United Kingdom. Although the case of Boultif sets out the criteria in relation to family life, these criteria are relevant in assessing the issue of proportionality in relation to private life. Taking all the relevant matters into account and weighing the facts of the appellant's case in the light of the requirement of the respondent to maintain a firm and fair system of immigration control I find that removal is not proportionate to the legitimate aims of the United Kingdom to maintain immigration control."

The adjudicator then said that in the light of what she had set out, she found that the decision of the Secretary of State appealed against would cause this country to be in breach of its obligations under the 1950 Convention. She therefore allowed the appeal on those human rights grounds.

10. The Secretary of State appealed against that determination to the Immigration Appeal Tribunal. The grounds upon which the Secretary of State did so are a matter of some difficulty in this case, and it is therefore necessary to set them out in full:

"1 The adjudicator has erred in law in allowing this appeal. In allowing Article 8 private life, at paragraph 28 & 35 the adjudicator has relied on the length of time the appellant has been in the United Kingdom. The adjudicator has found the appellant has a private life sufficient to engage Article 8 because he has a sibling in the United Kingdom and has undergone medical treatment in the United Kingdom, this in itself cannot sustain. At paragraph 29 the adjudicator has found that family life has not been established but in order to assess the issue of proportionality in regards to private life has relied on the case of Boultif v Switzerland (2000) 33 EHRR 50, which fundamentally sets out the criteria in relation to family life. At paragraph 31 she has cited the length of time the appellant has been in the United Kingdom and has implied that this was elongated by the length of time that was taken to decide the appellant's asylum appeal. The length of time taken to decide the appellant's application is not a reason to add weight to allowing an appeal. The appellant was initially granted leave to enter as a visitor in November 1986 until December 1987 and since December 1987 has remained in the United Kingdom unlawfully. Therefore it would be proportionate to remove the appellant on the basis that the majority of his time here has been unlawful and the appellant only claimed asylum in 1999. On the facts of this case the adjudicator has erred in allowing this case on the basis of the appellant's presence in the United Kingdom as IAT Secretary of State and Isen Vucaj [2002] UKIAT 04006 paragraphs 3 & 4 state , the adjudicator found positively that the removal of the claimant from the United Kingdom in the circumstances in which the Secretary of State proposes to do it would not interfere with his family life. The adjudicator also found, however, that such a removal would constitute an interference with the claimant's private life, 'in this case, I consider that the appellant has established a private life by his presence in the United Kingdom.' The adjudicator appears to take the view that if a person is present in a country then his removal from that country, whatever the circumstances of his presence, would be an interference with his private life under Article 8 (1). It was found at paragraph 4 that the adjudicator should not have found, on the evidence before him, that the claimant's removal would be an interference with private or family life under Article 8 .

2 The tribunal is respectfully asked to allow the appeal."

11. There is a certain amount of jurisprudence as to the correct way in which the jurisdiction of the tribunal has to be asserted, and the necessary content of the grounds of appeal to that tribunal. The law is that it is necessary for a point of law to be reasonably discernible in the grounds of appeal on the basis on which permission to appeal has been given. That point has been made and repeated in B v Secretary of State for the Home Department [2005] EWCA Civ 61 (a judgment of this court of a constitution presided over by the then Master of the Rolls), Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 at paragraphs 21 to 24, R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraphs 55 to 58 (a decision of this court in a constitution presided over by the Vice-President) and ZT v Secretary of State for the Home Department [2005] EWCA Civ 1421 at paragraph 10.

12. In the original grounds of appeal to this court it was asserted that the grounds of appeal to the Immigration Appeal Tribunal (already set out) did not fulfil the requirements of that jurisprudence in identifying a point of law. This morning however Mr O'Callaghan, for Mr Jasarevic, told us that he did not feel able to continue to assert that point because it was his view and, he said, the view at the Bar generally, that the previous jurisprudence had been withdrawn or at least significantly watered down in the last of the authorities just cited, ZT v Secretary of State for the Home Department . The passage in which it was contended that that had occurred is paragraph 10 of that judgment, and reads as follows:

"This court has however also stressed that it would be reluctant to see a case fail purely on an issue of jurisdiction and in the absence, as here, of any claim that anyone has been in the slightest degree misled if it is possible, on a fair reading, to extract a point of law from the grounds."

I do not read that observation as saying anything different from what is said in the earlier cases. The earlier cases were all at pains to stress that the court will not look pedantically at the grounds but will read them in a fair and reasonable fashion, but still with the necessary objective of discerning whether there is a point of law to be found within them.

13. We therefore considered that it was necessary to pursue that point, bearing in mind, as the court has stressed in the earlier cases, that this issue is an issue of the jurisdiction of the tribunal and therefore cannot pass by concession or agreement between the parties.

14. We therefore required Miss Stern, for the Secretary of State, to explain to us why she would contend that the grounds revealed a sufficient statement or complaint on the grounds of law in the light of the requirements of B v Secretary of State for the Home Department and succeeding cases. That requirement was somewhat perhaps disconcerting for Miss Stern since she had been led to believe by her opponent that the matter had passed without objection. However, in clear and careful submissions, she succeeded in persuading me at least that there could be extracted, albeit with some difficulty, from the statement of grounds three points of law: (1) that the contention of the adjudicator or the finding of the adjudicator that Article 8 was engaged in the first place could not be sustained; (2) that in deciding the question of proportionality the adjudicator gave inappropriate weight to a number of factors; (3) that the adjudicator simply erred in law in finding that it would be disproportionate to remove the applicant from the United Kingdom. I would accept that those points can be found within these grounds, and it is fair to say that the Immigration Appeal Tribunal also found.

15. We turn to the determination of the Immigration Appeal Tribunal. It first held in paragraph 10 as follows:

"We find, in the light of the decision in Razgar , that such matters based on the findings of fact made by Miss Coker,"

I interpose, as already set out in this judgment,

"that Article 8 (1) rights were not engaged and it therefore follows that one did not need to address proportionality nor if there was any reason or obstacle why he could not maintain a private life in his home country."

I have difficulty with that conclusion stated as it is in such terms. The teaching of Razgar , and, more particularly, the speech of Lord Bingham of Cornhill in that case, gives a broad and generous understanding of the implications of a private life, it being remembered in this case that the adjudicator was careful to distinguish that from family life. When one has a case such as here, where a person has been living in this country for the length of time this gentleman has, albeit for part of the time in prison, and when he has clearly a range of connections in this country, whether or not his relationship with Miss Brady is currently flourishing, and when he has apparently worked and earned his living here, it is difficult to say that as a matter of course (which is what the Immigration Appeal Tribunal seems to say) that it is impossible for him to assert rights under Article 8 (1).

16. However the tribunal, having said that, then went on to ask the question whether, even if Mr Jasarevic had rights here, his removal would, as the adjudicator thought, be disproportionate under Article 8 (2). I need to set out what the tribunal said about that:

"11 However if we were wrong and those factors were sufficient to engage with Article 8 (1) rights then we find that such matters as the length of time; the mental health; the physical health of the respondent; his relationships in the United Kingdom are all material factors but in the light of the decision in Razgar and Ullah and Do in the House of Lords it is clear that there will be very few and only exceptional cases where Article 8 rights are established to the extent that they override the general position in relation to the proper maintenance of immigration control. Mr O'Callaghan helpfully relies upon two decisions both of the tribunal, which address in one case and to a degree in another the somewhat dilatory state in which the appellant has addressed the passage of time in relation to claimants and or failed to have regard to its policies.

12 It seems to us that those cases turn largely on their own facts and it would be wrong to take the position that if fourteen years have passed in the United Kingdom a right to remain will be given. The matter remains for the discretion of the Secretary of State. We find in relation to this respondent there is nothing to indicate that in the circumstances now advanced anything at odds with the known circumstances, when they came before the adjudicator. The facts and matters helpfully set out by the adjudicator, do not show as a matter of law that removal is disproportionate. In those circumstances this is not one of those few exceptional cases."

17. The reasoning of the tribunal is short, but it is quite clear to me that they found an error on the part of the adjudicator in that she did not direct herself sufficiently clearly that the case must be exceptional, indeed very exceptional, before a removal in pursuit of immigration control can be said to be a disproportionate interference with rights created or established under Article 8 (1). They quoted in that connection the cases of Razgar and Ullah , both in the House of Lords, and, it is right to say in fairness to the adjudicator, both decided after she made her determination. They might also have referred to paragraph 56 of the judgment of this court in Huang .

18. Having done that, it seems to me that what they then did, although again they do not set this out in expansive terms, was to rely on the guidance given by this court in R (Iran ), already mentioned, which holds that once an error of law has been identified on the part of the adjudicator it is open to the Immigration Appeal Tribunal to go on and make its own determination as to the issue in respect of which the adjudicator had gone wrong. It is not necessary, as had previously been thought, for the matter to be remitted to the adjudicator for further determination. That, it seems to me, on a reasonable reading of the Immigration Appeal Tribunal's determination, is what they did in the latter part of paragraph 12 where they say the matter set out by the adjudicator does not show, as a matter of law, that the removal is disproportionate. I do not read that passage as saying that such matters could never establish a lack of proportion on the part of the decision by the Secretary of State. They seem to me rather to be saying that in this case there is no disproportionality.

19. It was clearly open to the tribunal to take the view that it did on the adjudicator's determination: that it did not apply sufficiently clearly the guiding jurisprudence in this area. It was open to the tribunal thereafter to go on and make the finding that it did in paragraph 12. Its decision to allow the Secretary of State's appeal should therefore be upheld by this court.

20. I would mention one other matter simply as a footnote. The adjudicator, as we have seen, referred to the 14-year policy then pursued by the Secretary of State. Either she was not aware - and it can hardly be said to be her fault - or it was not yet the case that there had been introduced into the Immigration Rules paragraph 276A which, putting it shortly, provides that a period of imprisonment interrupts any period of continuous residence here that otherwise could be relied upon under that policy. At one stage the Secretary of State appeared to be minded to say that that in itself was a conclusive reason why the adjudicator must have been wrong in putting the 14-year period at least into her balance. Miss Stern realistically recognised that that point had never been raised until the matter came into this court, and it was really not open to her to say that it would therefore in itself demonstrate that the adjudicator was incorrect in what she concluded. The appeal has therefore, and with Miss Stern's encouragement, been looked at simply on the basis of the matters the adjudicator assumed and which the Immigration Appeal Tribunal assumed.

21. For the reasons I have indicated, I would dismiss the appeal against the Immigration Appeal Tribunal's determination.

22. LORD JUSTICE LONGMORE: I agree.

23. LORD JUSTICE NEUBERGER: I also agree.

Order: Appeal dismissed with the parties to agree costs, any points of disagreement on same to be submitted on paper to Lord Justice Buxton for summary assessment.