BS (Kosovo) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against a decision of Underhill J, who gave a full judgment detailing the relevant facts and issues. Its neutral citation number is [2007] EWHC 1704 (Admin). Reference can be made to that judgment for the detailed facts. Given the nature of the present application I do not propose to repeat them.

In short, the applicant and his younger brother both came to this country illegally from Kosovo in September 1999 and claimed asylum. At that point they were both minors. Both claims were refused. However, because the brother was still a minor at that time, he was given exceptional leave to remain, which should have been given up to his eighteenth birthday, but by mistake was given for the longer period of four years; and the brother has subsequently been granted indefinite leave to remain.

The applicant himself appealed unsuccessfully against the refusal of his asylum claim. His claim under article 8 of the European Convention on Human Rights succeeded before an adjudicator because of the presence here of his young brother with whom he was living, and for that reason he was subsequently given exceptional leave to remain for one year, which would take him beyond his brother’s eighteenth birthday. He subsequently applied for further leave to remain. That was refused, an appeal to an adjudicator was dismissed and permission to appeal to the tribunal was refused in February 2005.

In May 2005 the applicant sought leave to remain as the unmarried partner of a person present and settled in the United Kingdom, namely Ms Holohan, who was a South African citizen with indefinite leave to remain and with whom he had been living for over two years. That application was refused by the Secretary of State in a letter of 3 June 2005. The applicant’s solicitors then submitted further representations in a letter of 30 June. Those representations were considered in a letter from the Secretary of State, dated 10 August, in which they were rejected; and the decision of 3 June was maintained.

The decision of the Secretary of State was challenged by way of proceedings for judicial review. In the judgment now sought to be appealed Underhill J granted permission to apply for judicial review, but refused the substantive application. He refused permission to appeal to this court. Permission was also refused by Buxton LJ on consideration of the papers.

There are five grounds of appeal. In his oral submissions, Mr Jafar has taken ground 5 first. By that ground, complaint is made of the Secretary of State’s decision that the applicant’s submissions did not amount to a fresh claim. It is submitted, correctly, by reference to WM (DRC) v SSHD[2006] EWCA Civ 1495, that the Secretary of State not only had to consider for himself whether the conditions of a fresh claim were made out, but also had to consider whether there was a realistic prospect of an immigration judge finding in the applicant’s favour on the matters raised. It is said that, whilst in the letter of 3 June the Secretary of State did determine that the submissions did not amount to a fresh claim, in the further letter of 10 August he failed to consider whether the additional submissions addressed in that letter amounted to a fresh claim, let alone whether there was a realistic prospect of an immigration judge so holding. It is said that he thereby erred in law, and it is further submitted that the only reasonable conclusion open was that the further submissions did satisfy the criteria for a fresh claim.

The way the case has been put before me, by reference to WM (DRC), is not the way in which it appears to have been put in the original judicial review grounds or in the applicant’s skeleton argument before the judge; but it is clear that WM and the test contained in it were matters before the judge. They were referred to in the Secretary of State’s skeleton argument. The judge does not appear to have dealt with that aspect of the matter, in what is otherwise a very full judgment.

In common with Buxton LJ, I take the view that the only matter that could properly be said to be new in the submissions addressed in 10 August letter was the IVF issue. The submissions being considered in that letter were actually put forward as a request that the Secretary of State reconsider his earlier decision. In rejecting the submissions, the Secretary of State confirmed the earlier decision and was plainly confirming the earlier conclusion that there was no fresh claim. Insofar as he was forming his own judgment on the matter -- whether the criteria for a fresh claim were made out -- it seems to me that he gave entirely valid reasons for reaching that conclusion. He did not, however, refer expressly in that letter or, indeed, in the earlier letter -- both of which predated WM (DRC) -- to the question whether an immigration judge might find in the appellant’s favour on the issue. It is certainly arguable that the Secretary of State did not ask himself, to that extent, the right question. But it seems to me that the reasons given in the decision letter were such as to show that, had he asked himself the right question, he would inevitably have concluded, for those same reasons, that there was no realistic prospect of success before an immigration judge; and such a conclusion would, in my judgment, have been an entirely sustainable one. In saying that, I take account of the IVF issue looked at not only by itself but cumulatively, in conjunction with other factors raised in this case, to some of which I will come in a moment. I cannot accept that the court, exercising a judicial review jurisdiction, would be required to exercise its discretion to grant relief in circumstances where it took the view that, if there was an error of law in the original decision, it was not a material one in the sense that the decision would have been the same even in the absence of such an error. It seems to me that the argument that the Secretary of State had erred in the manner that I have indicated, in not finding a fresh claim, is one that has no real prospect of success before this court.

I turn to ground 1, which was the second taken by Mr Jafar before me. In that ground it is submitted that the Secretary of State was wrong to say that, throughout the period of the applicant’s relationship with his partner, which started in early 2002, his immigration position was precarious. It is submitted in the written grounds and skeleton argument that the applicant had a legitimate expectation that he would be treated in the same way as his brother, since their applications were based on exactly the same facts. He knew nothing about there having been a mistake in granting his brother four years’ exceptional leave to remain, and he was repeatedly protesting to the Secretary of State in submissions that he believed he was entitled to the same immigration status as his brother. The Secretary of State did not inform him until the letter of 10 August 2005 that there had been a mistake in relation to his brother. In his oral submissions, adding to some extent to those points, Mr Jafar has drawn a contrast between the case of someone who has no immigration status at all and someone in the applicant’s position -- a position which is said to have been very far from an uncertain one.

Paragraph 10 of the letter of 10 August described the applicant’s position as precarious because his continuing presence in this country depended purely on a favourable decision being made by the Secretary of State -- a decision which could never be guaranteed. It is said that that does not deal with the unfairness of the matter, arising from the relative position of the applicant and his brother to which I have referred. The judge, for his part, however, described the way it was put in paragraph 10 of the letter of 10 August as unimpeachable; and said that, from the time of the adjudicator’s decision in November 2001, the applicant knew that, whether or not he thought it was fair, he and his brother were not being treated in the same way. The judge’s language suggests that he thought the decision was that of the adjudicator, whereas in fact the decision in November 2001 was that of the Secretary of State, following the successful appeal to the adjudicator earlier that year, but the point of substance is the same. Buxton LJ thought that point unanswerable. I agree, and I do not consider there to be any real prospect of success on ground 1.

Mr Jafar then turned to grounds 3 and 4, which he took together. They do, to some extent, overlap, especially in the reliance placed on Shala[2000] EWCA Civ 233. Ground 3 deals with the application of policy DP3/96, relating to the removal of someone who has married a person settled in the United Kingdom. It was accepted below that the policy also applies to unmarried partners, and it was applied accordingly to the applicant. The relevant issue under the policy was whether it was unreasonable to expect the applicant’s partner to accompany him on removal to Kosovo. The Secretary of State was of the view that it was not unreasonable. At the heart of the matter is that Ms Holohan was, at the time, in the queue for IVF treatment in this country and towards the upper end of the age limit for such treatment. The submissions made on the applicant’s behalf to the Secretary of State had talked about her treatment being interrupted, which was not strictly accurate since the treatment itself had not at that point commenced. The letter of 10 August made a bit of a meal of that point. It also took the point that there was no evidence that such treatment was unavailable in Kosovo, or that its absence, if it was unavailable, would lead to serious consequences. The letter concluded that it was not unreasonable to expect the applicant’s partner, in all the circumstances, to accompany him to Kosovo.

Various points of criticism have been made of the Secretary of State’s approach, all of which were rejected by the judge for reasons which, in my view, are sustainable. A submission made in the written grounds and skeleton argument is that the judge applied a Wednesbury test and that this was not a sufficiently intensive standard of review, such as is called for in the human rights context. Insofar as one is dealing with the application of policy, with which ground 3 is concerned, I do not think that anything other than the normal Wednesbury standard of review could be said to be called for. It is true that there is an overlap with the issues under article 8, as the judge said, and that a different approach is, of course, called for when considering the proportionality of interference with article 8 rights; but I see no arguable failure by the judge to apply the appropriate test when considering the article 8 aspect of the case.

There is also said to be a contradiction between the judge upholding the Secretary of State’s decision that it would not be unreasonable to accompany the applicant and the very end of his judgment, when he said that it would not be appropriate for the Secretary of State to prevent the applicant from attending an appointment with his partner at hospital the following week, when she was due to attend for the commencement of her IVF treatment. The judge suggested it might be unreasonable to remove the applicant in the immediate future because of the treatment in question. I see no contradiction in the judge’s approach. He was making a sympathetic point in relation to the immediate future. There seems to me to be a great difference between a short-term staying of the Secretary of State’s hand because of an appointment or process in the immediate future, and the longer-term question that was addressed by the Secretary of State in his decisions. I do not think that the observations made by the judge at the end of his judgment in any way undermine the reasoning that preceded those observations.

In the related ground 4 it is contended that, in the exceptional circumstances of the applicant’s case, policy does not require that he return to Kosovo to make an application for entry clearance from there, and that the strict reasoning in R (Mahmood) v SSHD [2001] 1 WLR 840 should not be applied to him. Reference is made here to Shala and it is submitted that, as in Shala, so in this case there are good reasons for not applying the policy designed to discourage applicants from jumping the queue for seeking entry into this country. It is said that the applicant did not just enter the United Kingdom for international protection, but also to be with, and to take care of, his younger brother; and it is pointed out that he had a right to be in the United Kingdom, by virtue of his younger brother’s permitted presence here. It is submitted that the Secretary of State failed properly to consider the factors that distinguish this case from a normal illegal entry case. Suffice it to say that, in my view, the decision letter set out at length the reasons why this case differed from Shala and why it was considered reasonable and proportionate to remove the applicant to Kosovo. The judge also covered this at length in his judgment. I am satisfied that there was no failure to consider relevant matters, and no arguable error of law in the Secretary of State’s approach.

The remaining ground, ground 2, is one to which Mr Jafar has adhered though he has not developed it orally. It concerns a failure to follow the procedures specified in the policy relating to asylum applications by unaccompanied minors -- in particular, that such applications should be given priority and decided within six months. The applicant applied for asylum just two weeks after his brother, but it took fourteen months to determine his claim, as opposed to the five months taken in the case of his brother. The letter of 10 August said, in paragraph 19, that the applicant had not been prejudiced by the apparent failure to follow the procedures or the time taken to reach a decision. It is submitted, by reference to AA (Afghanistan)[2007] EWCA Civ 12, that such a failure is an error of law that results in disbenefits, including denial of various forms of assistance, and that the loss is a consideration that the Secretary of State should take into account in the exercise of his discretion. The simple answer is that the Secretary of State did take the failure into account, and concluded that the applicant had suffered no prejudice by reason of the failure. It has not been shown, in the circumstances, that the applicant suffered a loss that made it irrational for the Secretary of State to conclude that he had suffered no prejudice. In my view, no arguable error of law has been established under this ground either.

Overall, whilst I have some sympathy for the position of the applicant and his partner, I have reached the conclusion that there is no arguable error of law which would justify the grant of permission to appeal against the judgment of Underhill J. In my view, an appeal would have no realistic prospect of success and there cannot be said to be some other compelling reason why permission should be granted. For those reasons, whilst I thank Mr Jafar for his cogent submissions on behalf of the applicant, the application must be dismissed.