Strbac & Anor v Secretary of State for the Home Department

This case was listed as an application for permission to appeal with appeal to follow if permission granted. The application is directed against the decision of the Immigration Appeal Tribunal (“the IAT”) of 15 June 2004 when they dismissed the appellant’s appeal against the determination of the Adjudicator of 23 December 2002. The Adjudicator in her turn had dismissed the appellant’s appeal against the decision of Secretary of State made as long ago as 3 November 1999, though not notified to the appellant until 30 November 2000. The Secretary of State had rejected the appellant’s asylum claim and refused him leave to enter.

The case has a somewhat convoluted procedural history. On 24 August 2004 I directed that it be listed for an oral permission hearing on or after 1 November 2004 “in relation to the Shala/Janjanin issue and the DK issue”. I will explain these issues, which are named for earlier decided cases, in due course. Then after giving further directions relating to skeleton arguments, on 3 December 2004 I adjourned the permission hearing to be re-listed (with appeal to follow) after the delivery of judgment in Huang & Ors (Footnote: ¹). That judgment, whose relevance to this application I shall of course also explain, was handed down on 1 March 2005. Thereafter I directed that the parties file further skeleton arguments dealing with the impact of the Huang decision.

We heard full argument from counsel over a day. I think it would right to treat the matter as a full appeal, and accordingly I would grant permission to appeal.

It is convenient first to describe the facts. The appellant is an ethnic Serb and a national of Croatia, born on 29 November 1950. He is an Orthodox Christian. He completed his military service between February 1969 and July 1970. He was married on 3 October 1970. After his military service he and his wife both obtained employment, in his case in the manufacture of agricultural machinery and in hers in a confectionery factory. As a result of political instability in Croatia, as it was put by the IAT, they were both dismissed from their jobs, he in May 1991 and she in July 1991. On 26 June 1991 the Croatian forces attacked the village of Tenja where the appellant’s wife had been born. The appellant joined the Serbian militia defending the village. On 17 September 1991 the Yugoslav army advanced to the village. I may take up the narrative from the IAT’s account:

“5.

In September 1991 the battle for the village ended. When the Yugoslav army commanders discovered that the appellant had served in a tank regiment during his military service, he was conscripted into their forces. He served as a private in a tank regiment, although he had command of a four-man tank. When the Serbian army withdrew on 20 May 1993, the appellant was promoted to lieutenant and was left in command of 50 men and 10 tanks. He remained in that position until he was demobilised under the Dayton Agreement in May 1995.

6.

The appellant feared for his family’s safety, from Croatians who were returning to his village. On 26 January 1998 he took the family to Norway where he claimed asylum. During their stay in Norway he discovered that his paternal cousin, Cerdo Strbac, a colonel in the Yugoslav army who had been in command of a brigade, had been tried in absentia for war crimes and sentenced to 20 years imprisonment. Following refusal of his asylum claim, the appellant and his family returned to Croatia on 11 October 1998. Although the appellant had owned a flat in Osijek, this had been taken over by a Croatian family in 1991. Attempts to reclaim the flat were unsuccessful. He and his family had to live with his widowed sister-in-law, Branka, in Tenja.

7.

He was unable to find work in Osijek. He considered moving to the Federal Republic of Yugoslavia, particularly since his daughter, married to a Serbian citizen, lived in Belgrade, but although Croatian Serbs were allowed to travel in and out of the country, they were not allowed to settle there. He decided that there was no future for his family [in] Croatia. In January 1999 he and his family travelled by car to Zagreb airport and from there came to the United Kingdom.

8.

He last spoke to his sister-in-law Branka in January 2002. She told him that his cousin was now in prison in Croatia. Although he had not been involved in any war crimes, he believed that this would not stop the Croatian authorities from blaming him for the deaths of Croatian citizens. He feared that if returned to Croatia he would be arrested and probably imprisoned, although not for such a long period as his cousin.”

The appellant arrived in the United Kingdom on 28 January 1999, accompanied by his wife, and claimed asylum on arrival.

As the IAT noted (Footnote: ²) the Adjudicator found the appellant to be a credible and compelling witness and accepted his account. Before the Adjudicator the appellant’s case was put firmly on asylum grounds. The Adjudicator summarised it as follows:

“27.

The appellant’s claim, in short, is this: from 1991 – 1995 he served with the Serbian militia and later the Yugoslav army. He was in charge of 10 tanks with immense destructive force. If he returns to Eastern Slavonia he may be accused of war crimes. In any event, the authorities and the local Croat population will persecute him because of his wartime activities and because of his relationship with his cousin, who has already been convicted of war crimes. ”

The Adjudicator rejected this claim, and associated claims based on Articles 3 and 8 of the European Convention on Human Rights (“ECHR”).

However before the IAT the appellant advanced a fresh case, by way of variation of the grounds first put forward, based on the decision of this court in Shala (Footnote: ³). It is convenient now to address this decision, in which the judgment was handed down on 27 February 2003. Though it started life as an asylum claim, for the purposes of the appeal it was an Article 8 case. As is well known ECHR Article 8 provides:

“1

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

2

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, or public safety, or the economic wellbeing 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.”

Given the argument that is to come, it is convenient also at this stage to set out ECHR Articles 3 and 14:

“Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

…

Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The appellant in Shala was an ethnic Albanian from Kosovo. He arrived in the United Kingdom on 25 June 1997 and claimed asylum the same day. But nothing happened for a long time. His solicitors wrote to the Home Office in June 2001. He was interviewed on 17 July 2001, and his claim was refused by letter from the Home Office dated 25 July 2001. By then he had been in the United Kingdom for just over four years. In October 1998 he had met a woman living here, a Czech national with two sons by an earlier relationship. They lived together from December 1998. They married in October 2001. The next month, November 2001, the appellant’s appeal was dismissed by the Adjudicator. The appeal had been run not only on asylum grounds but also in reliance on Article 8. The appellant appealed to the IAT, again relying on Article 8 and the interference with his family life that would be perpetrated if he were returned to Kosovo, where his wife and stepsons could not sensibly be expected to go. The IAT held that there would not be a “disproportionate breach” of the appellant’s rights under Article 8 if he were returned to Kosovo. In this court it was made plain that the case turned on the Article 8 claim, the asylum arguments having been “overtaken by events”. It was accepted that the appellant’s removal would interfere with his right to respect for his family life under Article 8(1). The question was whether his removal would on the facts be proportionate, that is to say, whether it would strike a fair balance between the Article 8 right and the legitimate aim of immigration control. In judging that issue the court laid particular emphasis on the effect, in the circumstances of the case, of the passage of time. Keene LJ said this:

“14… [T]he appellant’s case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the United Kingdom for a variation in that leave on the grounds of his marriage. The IAT does not appear to have considered that submission, which was clearly put before it as paragraph 11 of its determination indicates. In other words, but for the remarkable delay on the part of the Home Office in dealing with his asylum claim, the appellant would not have fallen into the category where the applicable policy requires an application for leave to enter to be made from outside this country.

…

16… While it may be uncertain when the appellant would more normally have been granted refugee status or exceptional leave to remain, it is unfair that he should suffer because of an uncertainty arising from the Home Office’s failings. Nor can it be said that allowing him to apply in-country would encourage others to exploit the established procedures. To require the appellant now to leave the United Kingdom and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent, who does not appear to have reflected adequately, if at all, the significance of his Department’s delay in the present case.”

Schiemann LJ said:

“24.

The present case however is distinguishable from the mass of cases because the applicant came here at a time and in circumstances where his failure to apply for a visa was accepted by the Home Office as wholly explicable and where he applied for permission on the day he arrived from Kosovo which was in the middle of a dreadful civil war. He could not have done more. In short he was, at the time that he came, a meritorious applicant for permission to remain here, at any rate for a while. It was not until more than four years later that the Home Office, after chivvying by his solicitors, got round to arranging an interview to test the genuineness of his asylum application. Automatically to apply to a person in his position a policy designed to discourage both meritorious and unmeritorious applicants from jumping the queue is a wrong approach to the difficult problem of deciding whether the interference with a person’s rights under Article 8 is necessary in a democratic society.”

In the present case much reliance was placed on Shala before the IAT. Central to the argument was the effect of two Home Office Policy Bulletins, 2/99 and 4/99. 2/99 seems to have been issued in May 1999 (although the IAT says (paragraph 16) that it was in place by the time of the appellant’s arrival in the United Kingdom). It was amended in August 1999. It was issued to update case workers in the Home Office on the situation in Croatia. Paragraph 10.6 matters most for the appellant’s case, but 10.1 provides useful background (though the clarity of the language leaves much to be desired):

“As the background political paragraphs make it clear, the civil war in Croatia was the result of ethnic divisions between the minority Serbs and ruling Croats and problems on ethnic lines have remained in the war’s aftermath. As a result Croatians of Serb ethnicity continue to be the victims of harassment and intimidation generally in Croatia, but particularly in those war-affected areas of Croatia [Krajina, Eastern and Western Slavonia] where ethnic tensions and memories from the war still run high. There are many well-reported examples of this from credible sources and may well, as a result, be able to substantiate a claim to asylum under the terms of the 1951 Convention. The whereabouts and, if still living in Croatia, the local treatment of close family members may have a bearing on the decision ie if close family are living without difficulty in Croatia, the fear of persecution will diminish and vice versa. UNHCR’s position in their paper dated February 1998 on the treatment of asylum seekers from Eastern Slavonia was that Serbs from the area did not automatically warrant protection en masse and so recommended that States examine each case individually. They consider that Serbs from this area may well be able to substantiate an individual claim but they are not recommending a ‘group’ policy of protection.”

The amended version of 2/99, effective from August 1999, has paragraph 10.6 in the following terms:

“10.6

Advice to Caseworkers

•

There is no ‘group policy’ towards Serbian asylum-seekers from Croatia and so each case is determined on its own merit.

•

The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the war-affected areas of Eastern Slavonia, Baranja and Sirmium; the Krajina and Western Slavonia, may [my emphasis] be able to substantiate a claim to asylum on the grounds of their ethnicity.

•

The general presumption will be that Serbs originating from other parts of Croatia may not be able to substantiate a claim to asylum on the grounds of ethnicity alone.”

The appellant has produced what is said to be a true copy of 2/99 in its original unamended form. There is a difference of one word in paragraph 10.6. This copy of the original has “will” instead of “may” in the second bullet-point: “will be able to substantiate a claim …” I mention these details because Mr Wilken for the Secretary of State, as I understood him, was at first disposed to dispute the suggestion that 2/99 had ever been in this form; rather the word “may” in the relevant sentence had always appeared. A search had been carried out, but Home Office representatives had been unable to find any copy of the bulletin with the verb “will” at 10.6 on the Home Office computerised records. It seems that at some time in 1999 a change was made to the software in use at the Home Office. It may be that some documentation is missing for that reason. At all events the appellant’s version, containing the word “will”, is immediately preceded by a cover sheet stated to have been issued by Christine Linton of the Country Information and Policy Unit. It has the words “May 1999” in manuscript. Then, after the words ‘BULLETIN 2/99 CROATIA”, this is stated: “This bulletin has been issued to update case workers on the situation in Croatia”. There follows the text, with the word “will” in paragraph 10.6. In the absence of any further or better information from the Home Office I for my part would accept (as I indicated at the hearing) that the word “will” appeared in the original unamended version of 2/99. How far the point affects any of the issues in the appeal is of course another matter.

Bulletin 4/99 was issued on 25 November 1999: It is in these terms:

“CROATIA

Caseworkers and Presenting Officers will need to be aware of the recent allowed appeal in the case of KEKUS (K1002445).

At the Appeal hearing, representatives acting for Kekus, an ethnic Serb, presented an impressive ‘expert opinion’ paper on the position of ethnic Serbs in Croatia as well as an OSCE report dated May 1999. These showed that ethnic Serbs are very likely to suffer persecution and discrimination based on ethnicity. Our Embassy in Zagreb has confirmed that this is so, and it has also been confirmed in a more recent report dated October 1999 by the Special UN Rapporteur.

While not every case of an ethnic Serb will meet the Convention criteria, caseworkers should be aware that the likelihood is that many ethnic Serbs will be able to make a case for asylum under the Convention and each application should therefore be considered very carefully before reaching a decision.

A copy of the ‘expert opinion’, and the OSCE and UN reports are available in CIPU and will be circulated with an extended Bulletin in the next few weeks.”

Though it does not figure in the IAT’s determination, it is convenient also at this stage to notice the terms of Bulletin 1/00 issued on 11 January 2000. Under the heading ‘CROATIA – ELECTIONS’ this is stated:

“1.1

Elections for a new government took place in Croatia on 3 January 2000. As anticipated, the former right-wing government, headed by the late Franjo Tudjman, who died in December, lost power.

…

1.3

Mr Racan [who was to be head of the new government] has said that he will offer a modest and moderate government and foreign diplomats believe that the change of government could be a change for the better. The fall of the HDZ, the former ruling party, may be seen by some of the 100,000 Croatian Serbs who are living abroad in exile as a signal that they may be able to return home.

SERBS

2.1

The recently allowed case of KEKUS (K1002445) has highlighted the need for more up-to-date advice on the case of Croats of ethnic Serb origin. A new Bulletin will be issued shortly to take account of this and other changes which may occur. It is also essential to look again at the standard refusal wordings and this, too, is in hand.”

Lastly in bulletin 3/00, issued on 10 April 2000, this was stated:

“7.

In an interview in February, the Head of the OSCE Mission to Croatia suggested that he did not expect any problems with regard to the return of Serbs to Croatia. This opinion is in marked contrast to that expressed in the OSCE ‘expert opinion’ referred to in Bulletin 4/99. In view of this and all the above factors, it is most unlikely that ethnic Serbs could now substantiate a claim for asylum.”

Bulletins 2/99 and 4/99, together with this court’s decision in Shala, were much prayed in aid in the later case of Janjanin (Footnote: ⁴), in which judgment was handed down in this court on 7 April 2004. The appeal before the IAT in the present case was heard on 30 March 2004, and an application was made on the appellant’s behalf to adjourn the appeal in order to await the decision in Janjanin; however that was refused by the IAT (Footnote: ⁵). The IAT’s determination, notified as I have indicated on 15 June 2004, makes no reference to the reasoning in Janjanin which of course had by then been handed down. I will come to Janjanin in due course.

In fact the grounds of appeal advanced before the IAT were threefold, and were articulated by the IAT as follows:

“25.

The appellant’s appeal was prosecuted on three grounds:

(1)

Delay in the processing of his asylum application denied him a presumption of the grant of some form of leave, namely, exceptional leave to remain for four years following which he could have had the opportunity of applying for indefinite leave to remain.

(2)

His fear of prosecution for activities in the war and:

(3)

The appellant’s inability to regain possession of his property and the discrimination he might face on return to Croatia as an ethnic Serb.”

In dealing with the argument based on Shala, the IAT noted that it had been held by the tribunal in M*Croatia that a reasonable time for the making of an asylum decision by the Secretary of State was within a year of an applicant’s entry into the United Kingdom (assuming, presumably, that the claim was put forward on arrival). It was a precondition of the application of Shala in this case, according to the IAT, that, had the decision of the appellant’s claim been made within a reasonable time, “he would have been the likely beneficiary of the Secretary’s policy on granting asylum to an ethnic Serb from Croatia”. The IAT held that although in the appellant’s case the Secretary of State’s decision had been made within about 10 months of the appellant’s arrival, it had not been served or notified for a further year; and so “the delay was outside the reasonable period within which the Secretary of State could have made his decision” (Footnote: ⁶). Having so concluded the IAT proceeded to determine the merits of what may be called the Shala claim (Footnote: ⁷):

“28.

In Shala the Secretary of State had a policy of granting asylum to ethnic Serbs [sic: the intended reference is to Albanians] from Kosovo. However, we find that there was no equivalent policy in force for ethnic Serbs from Croatia at the time of the appellant’s entry. What we have are Bulletins in the form of advice to caseworkers in their consideration of applications by ethnic Serbs from Croatia. Bulletin 2/99 advised that there was no ‘group policy’ towards Serbian asylum seekers from Croatia and that each case has to be determined on its own merits. There was however the general presumption that Serbs from the war affected areas including Eastern Slovenia, from where the appellant originates will be able to substantiate a claim to asylum on the grounds of their ethnicity. Bulletin 4/99 advised caseworkers and Presenting Officers [of] the need to be aware of the recent allowed appeal of Kekus and also objective evidence, which showed that ethnic Serbs were very likely to suffer persecution and discrimination based on ethnicity. In this appellant’s case, his claim in his interview was wholly based on economic reasons, namely, the loss of his job and property. This was what led the Secretary of State to conclude that the appellant’s motivation for coming to the UK was economic. In the circumstances we are not in a position to assume that this particular appellant would have received a favourable decision and thereby been granted some form of leave to remain, had his application been considered within a reasonable time, namely within 12 months of his arrival.

29.

The other special feature of Shala was that had he been granted some form of leave to remain, this would have enabled him to make an in-country application for a variation of his leave to remain as a spouse and the Secretary of State’s policy of requiring those who had no leave to apply for entry clearance out of country, would not have been applied, and the interference with family life would not have occurred. In this appellant’s case, it was argued that had the appellant been granted some form of leave to remain, e.g. exceptional leave to remain for four years, he would then have been able to apply for the grant of indefinite leave to remain. The facts of this appellant’s case are somewhat different from Shala. Shala had married someone who had no connection with Kosovo and who already had two children and who had already been granted refugee status in this country. Therefore an out of country application as a spouse would have caused an interference, however temporary, to his family life. In this particular case, the Appellant arrived in the UK with his wife and son. Therefore refusal to grant him some sort of leave to remain in the UK poses no interference with his family life, as he and his wife would be removed together. We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life. We do not know the outcome of his son’s asylum appeal. Nevertheless any interference with their family and private lives would not, in our opinion, be disproportionate to the effective maintenance of immigration control. Furthermore, as it is speculative to assume that he would have been granted some sort of leave to remain, it is also speculative that he would have been in a position to apply for indefinite leave to remain.”

In his skeleton argument in reply, Mr Nicol QC for the appellant criticises the IAT’s summary (paragraph 28) of the appellant’s claim in interview to the effect that it was “wholly based on economic reasons”. Mr Nicol points to the appellant’s reference at the end of the interview to his involvement in the army and his cousin having been a high-ranking officer, and his statement that for these reasons he did not feel safe in Croatia. However, this is addressed by the IAT (Footnote: ⁸). They stated:

“30… His emphasis throughout his interview was on the fact that at the end of 20 years of work he had nothing to show for it, no flat, no job and no country. It was at the end of the interview when he was asked if he had anything to add that he said that because of his involvement in the army and his cousin being a high ranking officer in the army he did not feel safe in Croatia. We accept that the Secretary of State did not consider the limited evidence before him in relation to the appellant’s activity in the war or his fear as a consequence thereof when he wrote his reasons for refusal letter. The appellant’s statement of 13 January 2000, which was sent to the Secretary of State on 4 August 2000, appears not have been considered by the Secretary of State. It is obvious that the statement was sent after the reasons for refusal letter but was before the Secretary of State when he made his decision on 30 November 2000. Counsel argued that had the Secretary of State taken into account the Appellant’s fear on account of his activity in the war and his cousin’s high rank and status in the army, he would have granted the appellant some form of leave. We disagree. The Bulletins in force at the time make no mention of the likelihood of an ethnic Serb succeeding because of his activities in the war.”

I must describe the remainder of the IAT’s decision before coming to confront the issues in the appeals. They proceed to consider (Footnote: ⁹) the appellant’s claim to be at risk of persecution, if he were returned to Croatia, by reason of his activities in the war. The Adjudicator had rejected this claim and held that the appellant was not at risk of persecution for alleged war crimes. The IAT upheld this finding. It is not said on this appeal that the appellant has at the present time a good claim to be accorded refugee status on this basis. Accordingly I need say no more about this aspect as a free-standing point in the case.

There remains what has been called the DK issue, dealt with by the IAT as follows (Footnote: ¹⁰):

“32.

We now turn to the Appellant’s fear of discrimination and his inability to regain possession of his property. We rely on DK and find that there is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families will be unavailable even if there is no ODPR temporary accommodation. If the Appellant is unable to regain his own property, he should be able to obtain other accommodation. His inability to regain his own property is insufficient to create a real risk of persecution. In the light of the objective evidence, we accept that there is discrimination against Serbs in Croatia. However we find that the discrimination is insufficient to create a real risk of persecution.”

The reference is, of course, to the Refugee Convention and the ECHR, and the event being contemplated is the return of an ethnic Serb to Croatia. The conditions which ethnic Serbs might face on return were central both in S & K and in DK. In DK (Footnote: ¹³) the IAT referred to the summary of the appellants’ complaints which had been given at paragraph 26 of S & K, which I will cite:

“1.

Discriminatory loss of homes and livelihood.

2.

Discriminatory denial of social and economic rights in the areas to which return is envisaged. No special efforts are being made to redress the wrongs suffered and the help return to society [sic].

3.

Discriminatory denial of judicial assistance in reclaiming homes occupied by Croats.

4.

Loss of stability and security because of the prospect of a marginalized and ostracised existence in largely ethnically cleansed country. Only a small fraction of Serbs who used to live in Croatia now remain and the majority are the elderly who have returned to die in their homeland.”

In passages also cited in DK (Footnote: ¹⁴) the IAT in S & K had concluded as follows:

“40.

As will no doubt be apparent, we are satisfied that there has been no worsening of the situation since we decided S and in any event the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the [ECHR]. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection… Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration.

45.

Despite the hardship that the claimant will undoubtedly suffer from the fighting in his country, he does not show any special circumstances which mean that can establish that he should be given the benefit of either Convention…”

An application for permission to appeal to this court in S & K came before me on 20 May 2003. I dismissed it after hearing argument from counsel both for the applicants and the Secretary of State (Footnote: ¹⁵).

In DK new material was put before the IAT. It is described at some length (Footnote: ¹⁶). A great deal of detail is given. I will cite the following passages from the IAT’s conclusions in that case:

“80.

The principal problem identified in the OSCE Report over returns and sustainable returns relates to housing. There has been discrimination against Serb refugees and priority given to Croat refugees in a number of respects. However, the picture was one of improvement and change for the better. It is clear that reconstruction of Serb houses is now where most of the housing reconstruction money is going, and their houses are being rebuilt; it may well be that that is because the Croat houses have all been rebuilt, which demonstrates discrimination, but even so, the reality is that the Serb houses are being now rebuilt as the major part of the housing reconstruction programme. There is evidence that the authorities concentrate their endeavours on those refugees who have returned and have a house which should be rebuilt; there is therefore an iterative process in which returns encourage reconstruction or other housing assistance and that in turn encourages sustainable returns. There has been discrimination in the repossession of houses, with very little of the vigour displayed in repossessing houses occupied by Croats which was displayed towards those Serbs occupying Croat houses. But there is slow progress. There is at least recognition at the level of legislation that tenant rights and convalidation of pension rights and work records need to be tackled and evidence that at local level there has been no implementation. We accept the point that what a Government may say can reflect a change in outlook for the better, but that may not really assist until the discrimination or other problem has been removed through effective implementation. We would see the picture as being one of slow progress, with good intentions somewhat ahead of implementation in a variety of respects, and with better progress in the field of reconstruction which is the one which most directly affects DK.

88.

We do not accept Mr Mullins’ argument that the burning down of the family house and the continued absence of reconstruction or compensation should be seen as a continuum, a breach of Article 3 which continues to this day. We are prepared to accept for these purposes that the burning of the house and the subsequent enforced flight would amount to a breach of Article 3, along the lines of Dulas v Turkey. What we reject is the continuance of that breach. First, the test is not whether the breach continues or has been remedied; the question is whether DK would face a real risk of treatment which breached his Article 3 rights. It is by its nature a prospective test and although the past can colour the appraisal of the prospect, we do not consider that the want of reconstruction of his family house itself constitutes a breach of Article 3, and it is to that that we should look rather than to the circumstances which led to its destruction. That is closely related to the second point; there have been changes in the circumstances which warrant looking at the position as it now is, and which break the continuum. There has been a change in regime; the Tudjman regime which carried out the ethnic cleansing has gone, and one of a very different outlook and aim has taken its place. Significant efforts are now being made, belatedly for sure, to reconstruct Serb houses. The return of Serbs is encouraged. Time has passed. There is no reason to take a different view from that which was applied to SK [sc S & K. It follows, from what we have said in this paragraph, that we also reject the suggestion that, unless DK is able to return to Croatia ‘with dignity’, the past breach of Article 3 should be regarded as continuing.”

I should say that this argument that a violation of ECHR rights may be constituted by a “continuum” of events is raised in the present case, and I shall deal with it in due course.

“89.

Mr Mullins’ best point was that it was now clear that the Tribunal had proceeded under the misapprehension that there was no distinction in terms of UNHCR assistance with temporary accommodation between those returning as refugees and those returning as failed asylum seekers. It is correct that no such distinction was drawn either by or for the Tribunal, notwithstanding all the expert assistance with which it was weighed down, and all the earlier discussion of these issues in S and others. The problem had come to the notice of Sutovic and Hartigan [solicitors who also act in this case] before the application for permission to appeal in S & K was heard, as the date of the e-mail inquiries shows, but it was not raised. We conclude, however, that the upshot of the various exchanges is what is set out in the June 2003 letter from Mr Lunsdorf: those who return as failed asylum seekers do not receive the benefit of UNHCR assistance prior to return, or temporary accommodation from the ODPR, and it is highly unlikely that any exceptional humanitarian assistance would be available to DK from UNHCR.

90.

This is a less favourable position than the one assumed in S & K. We are not persuaded, however, that there is any basis for reaching a different conclusion in general for failed asylum seekers. (Paradoxically, it would appear that if DK were to succeed, he could be returned straightaway on this basis, for he would receive UNHCR assistance.) We are not sure what impact on this his proven Displaced Person status in Serbia would have were he to return to Croatia directly, or indirectly via Serbia, but for present purposes we shall ignore it; it is not a point which the e-mail exchanges address.”

Reasons are then given for this approach in the following paragraphs. In light of the way Mr Nicol puts his case on what I will call the DK point, I should also set out part of the IAT’s reasoning in DK regarding the appellant’s personal circumstances:

“93.

Turning to DK’s particular circumstances, he has a new skill and although there is employment discrimination against Serbs and we make no assumption that Knin is a thriving economy, we consider that a man of 34, with a skill or access to benefits should be able to get by, however uncomfortable and hard his circumstances may be. There may or may not be employment opportunities elsewhere in Croatia other than Knin, but we recognise that it is there that other factors may lead him to stay and we make no assumption that he would move elsewhere. There is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families, would be unavailable even if there is no ODPR temporary accommodation. His presence would be of assistance in bringing more effective pressure to bear in gaining priority for the reconstruction of the family house; it is plain that priority is given to those who have returned over those who have not, in the allocation of reconstruction resources. He is not in that age group described as the most vulnerable, too old to have any job prospects and too young to enjoy a pension.”

The reference to the “most vulnerable” age group is not to a finding of the IAT but to the opinion of an expert, Dr Blitz, recorded by the IAT as follows:

“40… The most vulnerable returnees, in his opinion were those aged between 45 and 55, too old to have a job and too young to obtain a pension.”

As we shall see, Mr Nicol submits that the appellant in this case falls precisely within that category.

Mr Nicol advances two arguments on the appeal, reflecting the directions I gave on 24 August 2004. The first is that the IAT’s decision on what may be called the Shala point is wrong. The second is that their decision on the DK point is wrong.

On the Shala point, it is convenient first to introduce the later case of Janjanin (Footnote: ¹⁷), to which I have referred in passing in describing the decision of the IAT. In fact there were two cases heard together. The appellants, Janjanin and Musanovic, were both ethnic Serbs from Croatia. Their cases raised like issues relating to the application of ECHR Article 8. The court proceeded on the footing that the crucial verb in Bulletin 2/99 (which was much in play in both cases) was “may” throughout, and not only after the August 1999 amendment. The judgment shows that Mr Musanovic applied for asylum on 13 July 1999; his claim was not determined by the Secretary of State until 27 March 2001. Miss Janjanin applied on 11 May 1999; her claim also was not determined until March 2001.

The argument in Janjanin (for each of the appellants), based on the Shala decision, was that “if there was a real likelihood that they would have benefited from protection by the grant of some form of leave to enter or remain but that they did not do so by reason of the administrative delay in the processing of their claim for protection, then that circumstance constituted a significant favourable factor in the consideration of any proportionality exercise under Article 8” (Footnote: ¹⁸).

The contention for both appellants in Janjanin was that a reasonable period within which their claims should have been determined was six months from the date of application for asylum, thus by 13 January 2000 in Mr Musanovic’s case and 11 November 1999 in that of Miss Janjanin. It must follow, as it seems to me, that the amendment of Bulletin 2/99 paragraph 10.6 from “will” to “may” in August 1999 was immaterial: a reasonable time for decision in each of these cases had not expired by the date of the amendment. It is right to observe that Kay LJ (Footnote: ¹⁹) attached importance to the use of the term “may” rather than “will”. At all events the court’s conclusion, in each case, was that it was not shown that the appellant would likely have been granted at least an exceptional leave to remain if his/her case had been decided within a reasonable time. These were not Shala cases.

The effect of Mr Nicol’s argument in this case, in my judgment, was to seek to elevate the Shala decision into a statement of legal principle. He submitted on the strength of Shala that if four conditions were satisfied, a decision by the Secretary of State to remove or deport a would-be entrant to the United Kingdom will be disproportionate to the legitimate aim of immigration control and so not saved by ECHR Article 8(2) from violation of Article 8(1). The four conditions which he proposed were:

In my judgment, this is a misconceived approach to Article 8 and to this court’s judgment in Shala. The court in that case laid down no principle of law. In Mthokozisi (Footnote: ²⁰) Owen J stated (Footnote: ²¹):

“Shala is authority for the wider proposition that when striking the balance between an applicant’s rights under Article 8 and the legitimate objective of the proper maintenance of immigration control, the decision maker must have regard to delay in determining an application for asylum and its consequences.”

It is of course right that administrative delay in the determination of an application may, at least if it proves to be substantial and to have brought consequences in its wake beyond the bare passage of time, be a factor which the decision-maker is obliged to consider. But as a proposition that does no more, with respect, than identify an actual or potential relevant factor. (And it is a factor which, I apprehend, must have very substantial effects if it is to drive a decision in an applicant’s favour: see Anufrijeva (Footnote: ²²).) This is a far cry from Mr Nicol’s very different endeavour, which was to glean from Shala a distinct principle: a principle which, with some qualifications, came close to a rule to the effect that an applicant whose claim to enter or remain (a) is decided after the expiry of a reasonable time and (b) would probably have met with success, or a greater chance of success, if it had been decided within a reasonable time, should, if he has meantime established a family life here, be treated as if it had been so decided. I am not sure whether Mr Nicol would accept such a formulation. It was certainly the direction of his argument.

Whether formulated thus, or in terms of Mr Nicol’s four propositions, such an approach is not given by Shala, and in my judgment would be contrary to principle. The guiding principle for the determination of Article 8 claims is, of course, that a claimant’s removal must on the facts be proportionate to a legitimate purpose which the State seeks to advance: in most cases, the aim of firm but fair immigration control. It requires a judgment in the round. But the sharp edge of Mr Nicol’s rule cuts away at the fullness of such a judgment. Its relation with proportionality is fragile. In particular the suggestion that delay is a determinative rather than merely a relevant factor confines the decision-maker in a straitjacket which is not justified by statute, common law, nor the law of refugees or human rights. The fact (if it be such) that a claim might have more likely prospered had it been decided two years earlier does not necessarily tend to show that the claimant’s removal now would be disproportionate to the aim of immigration control. And Shala itself was not such a case. There, the likely grant of exceptional leave to remain had the application been dealt with promptly would have given the appellant a settled procedural right, namely to apply from within the United Kingdom for a variation of his leave on the grounds of his marriage, in contrast to the usual rule which would have required him to apply for an entry clearance from abroad.

It is noteworthy that in Alihajdaraj (Footnote: ²³) Jackson J (with whom Tuckey and Clarke LJJ agreed), in listing (Footnote: ²⁴) what he considered to be the “crucial features” of Shala, did no more nor less than set out the salient points of the case which went to the merits; and he stated (Footnote: ²⁵) his conclusion that “Shala is a decision which turns on its own facts”. I respectfully agree. Indeed the language in which Keene LJ expressed his view of the case shows as much. I repeat this observation from paragraph 16:

“To require the appellant now to leave the United Kingdom and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent…”

That is, quintessentially, a conclusion on the merits. In Janjanin, also, Wall LJ stated (Footnote: ²⁶) that the decision in Shala “turns very much on its own particular facts”. So did Janjanin itself. Kay and Wall LJJ (with whose judgments Thorpe LJ agreed) both drew attention (Footnote: ²⁷) to this passage from the determination of the IAT:

“On the one side there is weighed in the scales the length of time the appellant has been here. With that goes her exemplary conduct while she has been here and the fact that she has been in gainful employment in a position of some responsibility. We also take into account but by no means do we consider it to be determinative the fact that there has been some delay on the part of the Home Office in dealing both with this asylum claim and the Adjudicator’s recommendation. However we would not consider that such delay is sufficiently relevant to make it determinative as it was considered to be by the Court of Appeal in Shala.”

Shala, then, establishes no particular, free-standing principle. It was a case on its own facts. Mr Nicol’s argument distorts its effect. I acknowledge that in this area the line between fact and law can be elusive. The court, more particularly the appellate authorities, have to deal with broad issues which are given by firm principles of the law relating to human rights but require what can be a fine and difficult balance of judgment. No conceptual difficulty, however, as to the edge of law and fact can justify an argument which seeks to transform a judicial decision driven by the case’s particular circumstances into something approaching a rule-book. In any event, however, as I shall explain, this appellant’s case in reliance on Shala has in my judgment no force on the merits.

Proceeding on the basis that a reasonable time for determination of the appellant’s claim would have been within 12 months of his arrival in the United Kingdom (Footnote: ²⁸), that is to say by January 2000, Mr Nicol submitted that the appellant, as a Serb from the war-torn area of Eastern Slavonia, would very likely have established a good claim to asylum had his case been decided before that date. It is to be borne in mind that President Tudjman was in power in Croatia until his death in December 1999. More particularly, as a Serb who had served against Croats in the OS RSK (the rebel Serbian Republic of Krajina army), there was every possibility that it would have been accepted at that time that had he been returned to Eastern Slavonia he would have been subjected to intimidation or violence. As I have indicated Mr Nicol in particular seeks to assault the IAT’s conclusion (Footnote: ²⁹) that “[the appellant’s] claim in his interview was wholly based on economic reasons”. But in my judgment paragraph 30 of the determination shows that the IAT took a balanced view of the appellant’s interview.

Since the hearing the appellant’s solicitors have sought by letter of 16 May 2005 to put further material before us, including documents to show that while (as Mr Wilken had submitted) the Secretary of State never entertained a policy which was specifically favourable to Serbs who had fought in the OS RSK, still there were occasions when Senior Presenting Officers acting for the Home Office before the IAT conceded that service in OS RSK sufficed to justify a good asylum claim. The Treasury Solicitor objects to the introduction of this material at this stage but submits (by letter of 25 May 2005) that in any event we are not privy to what drove the concession in those instances. That was replied to, and contested, by the appellant’s solicitors in a further letter of 14 June 2005. While I should be inclined to refuse to admit this material on the ground that it comes too late, in truth it seems to me, for reasons I will give, to make no perceptible difference to the case.

Mr Wilken seeks to contest the IAT’s proposition that the appellant would have received a favourable decision had his application been considered within 12 months of his arrival. Apart from anything else, paragraph 10.6 of Bulletin No 2/99 was amended from “will” to “may” in August 1999, and Bulletin 4/99 was introduced in November 1999 – both events within the 12 month period. Indeed, for what it is worth, Bulletin 1/00 also falls within the period (just).

However, in my judgment this debate about the conclusion that might have been reached in the appellant’s case had it been decided by January 2000 is largely barren. I would incline to accept that there was at least a lively possibility that the appellant would have been granted exceptional leave or asylum if his case had been decided in the earlier part of the twelvemonth, though his prospects would have diminished as time advanced towards January 2000 and the publication of the later Bulletins. Mr Nicol concedes, subject to his argument on DK with which I will deal separately, that his client has no present claim to refugee status. His claim based on Shala is founded on ECHR Article 8. He is constrained to submit that the missed possibility of a successful asylum outcome in 1999 entails the conclusion that his removal now would be disproportionate in terms of Article 8(2) and thus would violate his rights under Article 8(1). But there is no reason why the court should so conclude. There is no analogue to the special feature of Shala, namely the loss of a distinct procedural right to apply in-country for an extension of leave. Most important, this is a case where, as I have shown, the appellant’s wife came with him to the United Kingdom in January 1999. There is every reason to suppose that she would return with him to Croatia if he were removed there. Mr Nicol accordingly accepts, plainly rightly, that there is in this case no question of interference with the appellant’s family life. So much was acknowledged by the IAT (Footnote: ³⁰). Mr Nicol submits, however, that Article 8 also protects private life; as, indeed, it does. But the material supporting any private life, in substance, on the appellant’s part in the United Kingdom is extremely thin. There is one sentence in the IAT’s determination (Footnote: ³¹), which I have already set out:

“We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life.”

There is an exiguous reference in the appellant’s witness statement of 5 June 2003:

“My family and I have started to settle here. My son has qualified as a bus driver and works full time. I have learned some English but I do not have permission to work. It has been difficult to live with this level of uncertainty for the past years…”

Before expressing my conclusion on this part of the argument I should briefly refer to the decision of this court in Huang & ors (Footnote: ³²). Following directions given by myself on 9 March 2005, the parties submitted short supplemental skeleton arguments dealing with the impact of the decision on this appeal. Huang was relevant because of a reference in paragraph 22 of the IAT determination in this case to the earlier Tribunal decision in M*(Croatia) (Footnote: ³³). The IAT stated, perfectly correctly, that it was held in M*Croatia that “[the Tribunal and Adjudicators] should normally hold that a decision to remove [sc. in an Article 8 case] is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances”. I am inclined to think it implicit that the IAT in this case followed that approach, although it is right to say Mr Nicol in his supplementary skeleton (Footnote: ³⁴) submits that in fact they did not do so. At all events this court held in Huang that such an approach was wrong. Giving the judgment of the court I stated (Footnote: ³⁵) that the Adjudicator was required

“to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the Rules.”

And (Footnote: ³⁶):

“This, not Wednesbury (Footnote: ³⁷) or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State’s judgment of proportionality in the individual case. The adjudicator’s decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances.”

Mr Nicol submits that his client’s case was exceptional in the sense which Huang contemplates, and on Shala grounds. I disagree. As I have said, Shala provides no special rule. It does not give rise to an argument of disproportionality on the facts of this case, which are, as I have explained, marked by the circumstance that there is in any event no claim of interference with family life and the claim based on private life is at most tenuous. I should add that this conclusion, in my judgment, sits perfectly well with the recent decision of the IAT in MB (Croatia) (Footnote: ³⁸) which was decided after the judgment in Huang had been handed down.

In my judgment the argument that the appellant’s prospective removal to Croatia is rendered disproportionate by force of administrative delay in deciding his asylum application in 1999 is, for all the reasons I have given, misconceived and unsustainable.

This part of the case is put in various ways in terms of the ECHR: under Article 3, Article 8, or Article 14 taken with either Article 3 or Article 8. It is also said that the conditions which the appellant would face were he returned to Croatia would amount to persecution on racial grounds. There is also an argument, which was only fully exposed at the hearing, that the IAT’s conclusions in paragraph 32 are defective for want of legally sufficient reasons.

It is convenient first to be clear as to what Mr Nicol says about the facts. I have already described them, but it is important to pick up the points which Mr Nicol was at pains to emphasise. As I have said the appellant was born on 29 November 1950 and so is now 54. He had a tenancy of a flat in Osijek in Eastern Slavonia. Tenja, where he moved at the time of the war, is 5 km away, and the border or line between the Serb and Croatian areas of control ran between the two. The flat at Osijek was seized when the Serb people were subjected to ethnic cleansing. There is some progress in rebuilding domestic property that has been destroyed, but little in the recovery of seized properties. The appellant has tried and failed to recover his flat. It is said that he has no other prospect of accommodation. His sister-in-law cannot now take him in. He is too old to get a job. He would not be eligible for a pension until he is 65.

Although the appellant’s case on the DK issue was originally presented in an extremely discursive skeleton argument prepared by Mr Nicol’s predecessor, it has been refined to the point where, as I see the case, there are really only two, interconnected, arguments. The first is that the appellant’s personal circumstances (as they were known to the IAT) were sufficiently exceptional to found a good – at least an arguable – case for protection on human rights or asylum grounds, notwithstanding the general conclusions of the IAT in S & K and DK. The second, as I have foreshadowed, is that the IAT have failed to provide legally sufficient reasons to show why the appellant has no such case.

As to the first, Mr Nicol was at pains to contrast the circumstances of his client’s case with those of DK as the latter were explained in paragraph 93 of the DK decision, which I have set out. He submits that the critical differences are (1) the respective ages of the appellant and DK: the former 54, the latter 34; and (2) the fact that the appellant’s home had been seized, whereas DK’s had been destroyed. The first point, says Mr Nicol, goes to show that the appellant is in what Dr Blitz described as “the most vulnerable [group], too old to have any job prospects and too young to enjoy a pension”. The second reflects the evidence that there has been much better progress in the reconstruction of destroyed or damaged Serb homes than in the restoration to their Serb owners of homes that had been taken from them.

The reasoning of the IAT on the DK issue (Footnote: ³⁹) is very spare. At the hearing before us, the court was concerned to know what submissions, on the DK issue, were made to the IAT on the facts. Mr Nicol referred to a detailed skeleton argument, which had been put before the IAT specifically in the context of the application to amend the Grounds so as to rely on the Shala point. Having re-read the document, I can find nothing which flags up either the appellant’s age or the seizure of his home. The nearest is a reference in paragraph 9 to the earlier IAT decision of Bashati (Footnote: ⁴⁰) “in which it was clearly established that difficult conditions on return are a relevant factor to take into account when asserting proportionality under Article 8”. But the whole context of the reference is the Shala case. This skeleton was put in before DK was decided, and so of course contains no reference to it.

I have already referred to the appellant’s solicitors’ letter to the court of 16 May 2005. It enclosed a copy of the appellant’s record of interview, and also a copy of notes of the hearing before the IAT taken by the appellant’s solicitor. The Treasury Solicitor objects to the admission of the latter, but not the former. As regards the notes, the solicitors enclosed with their further letter to the court of 14 June 2005 a statement from another member of the firm (the notes’ author, Mr Malik, has left the firm and lives abroad) explaining their provenance. Although this flurry of material produced after the hearing is regrettable, it has largely been prompted by enquiries which the court made as to what had been submitted to the IAT, and for that reason it seems to me that we should consider it.

The interview record shows that the appellant complained of the loss of his flat, and what he saw as his inability to return there. He also said he would be unable to find a job. The notes show that mention was made to the IAT of the fact that the appellant and his wife were “both in their 50s”, and there was “no prospect of getting the house back”. Nothing, however, is said about the appellant’s difficulties in finding employment, though there is a cross-reference (without description of any of the content) to his interview. The overall emphasis of the note is the argument on Shala.

In my judgment the facts relied on by the appellant on this part of the case are wholly incapable of supporting a viable case for asylum or a prospective claim of violation of ECHR Article 3 if the appellant were returned. Mr Nicol submits that a breach of Article 3 – and also, I think he would say, refugee status – may be established by a “continuum” of events. Thus past discrimination on racial grounds, exemplified by the seizure of the appellant’s flat, may combine with future apprehensions to engage Article 3 even if the future apprehensions would not do so of themselves. I think this is wrong in principle. I agree with the reasoning of the IAT in DK (Footnote: ⁴¹), which I repeat for convenience:

“… the test is not whether the breach continues or has been remedied; the question is whether DK would face a real risk of treatment which breached his Article 3 rights. It is by its nature a prospective test… although the past can colour the appraisal of the prospect…”

This is plainly right. The relevance of past events to a claim that the applicant would suffer a violation of a Convention right if he were returned to his country of origin can only be to cast light, as a matter of evidence, on what would happen if he were indeed returned. Such past events cannot of themselves constitute some part of the apprehended breach, which by definition lies in the future. That is not to say that evidence of these events may not be of great importance. They may cast much light on what will happen if the applicant is returned. They may, in some cases, show that by reason of his history the applicant’s health, personality or mental state is especially vulnerable.

In this case, however, past events cannot in my judgment make an asylum case or an Article 3 case for the appellant. Each would require (I need not with respect set out the learning (Footnote: ⁴²)) a gravity of ill-treatment or suffering beyond anything to which, in his particular circumstances, the appellant might be exposed. Nor in my view is there anything in Mr Nicol’s submission that the case should alternatively be viewed as one of Article 14 taken with Article 3. As is well known Article 14, which I have already set out, is an adjectival provision. That is, its concern is with the mode of enjoyment of the other substantive rights guaranteed by the ECHR: “[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination…” The argument is that ill-treatment which would not of itself be sufficiently grave to violate Article 3 may nevertheless amount to a breach of the Convention if its infliction is driven by discrimination on a prohibited ground. So here, the background of discrimination against the Serbs – indeed, a background of ethnic cleansing – serves to transform the appellant’s apprehended problems over home and job into a justiciable breach.

This position is said to be supported by the decision of the Strasbourg court in Moldovan v Romania (Footnote: ⁴³). The case concerned the plight of 25 Romanian nationals of Roma origin. It is unnecessary to describe the facts, which had their genesis in a very ugly incident involving a riot, the destruction of thirteen Roma houses and much property, and later investigations and judicial proceedings. Amongst other complaints the submission was made that the applicants were the victims of discrimination by judicial bodies and officials “contrary to the principle of non-discrimination set out in Article 14 of the Convention, taken together with Articles 3, 6 and 8” (Footnote: ⁴⁴). The court held (Footnote: ⁴⁵) that the case raised “serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits”. And so the application was declared admissible “without prejudging the merits of the case”. By way of postscript, we have been helpfully informed by Mr Nicol that on 5 July 2005 the Strasbourg Court entered judgment in the case recording that some of the applicants had agreed to a friendly settlement, which the court approved. It adjourned consideration of the claims of those applicants who had not settled.

It is no disrespect to the European Court of Human Rights to say that the admissibility decision in Moldovan is not authority for any proposition of law whatever. The court reserved all matters, save the bare holding that the case was admissible. It is certainly not authority for the proposition that there may be a viable claim of violation of the ECHR constituted by a combined application of Articles 3 and 14 where the facts do not warrant a finding of breach of Article 3 taken alone. In my judgment no such claim is viable. In refusing permission to appeal to this court in S & K, I said (Footnote: ⁴⁶):

“30.

It is well recognised that there may be a violation of Article 14 read with another Article in the Convention without there being any violation of the substantive Convention right… To take an example… in legal proceedings two different sets of procedural standards may apply, such as…, to take an extreme and no doubt impossible instance, a rule whereby for some classes of case persons of one race would be entitled to jury trial, but persons of another would not. That would obviously be a violation of Article 6 read with Article 14, even though it could not be suggested that Article 6 of itself required jury trial. There was discriminatory action which was nevertheless within the scope or the ambit of Article 6, and so Article 14 had a field of operation within which to bite…

31.

The difficulty here is to see how Article 14 can apply in an Article 3 case where there is no violation of Article 3 simpliciter… [I]t seems to me that Article 3 is, unlike Article 6 and unlike the political rights in Articles 8 to 11, a provision which has something of an absolute quality. On any given set of facts there either is a breach of it or there is not. There is no analogue to the second paragraph of each of Articles 8 to 11 allowing derogation from the right in certain circumstances. Degrees of treatment short of Article 3, however discriminatory, will not violate Article 14 taken with Article 3, as it seems to me because treatment short of Article 3 cannot really be said to be within the scope of Article 3 itself…”

This passage is not authoritative, occurring as it does in a judgment of a single Lord Justice dealing with a permission application, but with two qualifications I would adhere to it. The first qualification is that for reasons immaterial to the present case (Footnote: ⁴⁷) I do not think it helpful to characterise Article 3 as having an “absolute” quality. The second is that I accept, of course, that ill-treatment may be held to cross the Article 3 threshold by virtue of its being suffused, for example, by racial discrimination or hatred. But that would not be a case of Article 3 read with Article 14; it would be a violation of Article 3 straightforwardly.

Mr Nicol has two other formulations of this part of the case: Article 8, and Article 8 read with Article 14. As for the former, it is said that past and present discrimination against Serbs in Croatia lend a “flagrant” quality (Footnote: ⁴⁸) to the interference with home and private life which the appellant would suffer were he returned. But Mr Wilken rightly points to learning here and in Strasbourg which demonstrates that Article 8 confers no right to a home: Mazari (Footnote: ⁴⁹) and Anufrijeva (Footnote: ⁵⁰). A fortiori there is no right to a particular home. The question is not whether the appellant was, historically, unlawfully deprived of his home; it is whether he would hereafter endure violations of his Article 8 rights if he were returned. So far as concerns his prospects of accommodation, I cannot see that he would. It is to be noted that there is no distinct challenge to the IAT’s express finding at paragraph 32 that accommodation can be found in Croatia.

As for the appellant’s work prospects, it is clear to me that this was very far from being the focus of the appellant’s case before the IAT. In any event Article 8 no more guarantees a right to a job than a right to a home. And on this part of the case, specifically addressing Article 8, the facts would as I see it have to disclose an exceptional state of affairs as contemplated in Huang for a successful appeal to be got off the ground.

Much the same applies to Mr Nicol’s last formulation, Article 8 read with Article 14. While in principle such a claim may, depending on the facts, be available, care has to be taken to avoid applications of Article 14 which effectively imply a free-standing right to be protected against discrimination. For that reason the effects upon the substantive right – here arising under Article 8 – said to be perpetrated by the discrimination have to be examined at least as closely as the discrimination itself. In S & K the IAT specifically considered the Article 8 right in the context of the discrimination complained of in Croatia. I have already cited the passage, but repeat it for convenience:

“40… Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration.”

No case based on Article 8 taken with Article 14 was, so far as I can see, put to the IAT. Had it really been the key to the appeal, it would no doubt have found its place in the argument. I do not think that such a case can be constructed now.

In short, and looking now at the case in the round, though of course there are factual differences between DK and this case, there is not in my judgment the kind of material which might justify a conclusion that this appellant’s circumstances are sufficiently exceptional to differentiate the appeal from the guidance given in S & K and DK; or, for that matter (so far as Article 8 is concerned), to take the appeal into Huang territory. These considerations also provide the answer to the last question in the case, namely whether paragraph 32 of the IAT determination is bad for want of reasons. I was at first troubled by this aspect, and as I have shown the court was at pains to enquire what submissions had been made to the IAT about the facts specific to the appellant. I accept that it would have been better had the IAT drawn attention to the particular circumstances which contrasted the case with DK. But they had plainly in mind that he would or might be unable to recover his previous home; his prospective difficulty in finding work did not in truth figure in the argument before them; they were entitled to conclude that he would find some accommodation; and, in the end, the appellant’s particular circumstances would not have availed him upon any of the refined arguments put forward by Mr Nicol.

I would grant permission to appeal, given the fullness of the arguments. For all the reasons I have given, I would dismiss the appeal.

I agree.

I also agree.