This is an application by VP (Croatia) for permission to appeal against a decision of the Asylum and Immigration Tribunal promulgated on 22 February 2006. The tribunal dismissed an appeal against a decision of an adjudicator made on 13 October 2004. The appeal to the adjudicator had been made on article 8 ECHR grounds as is the present appeal. The applicant arrived in the United Kingdom and applied for asylum. That application was rejected on 10 June 1999.

In November of 1999 a human rights application was made. That was made under article 3 of the Convention, which had been a live issue in relation to Croatian cases at an earlier time though by 1999 is unlikely to have been so. No reference was made in that application to the present article 8 grounds relied on. It was only in November 2002 that the human rights claim under article 8 as now relied on was made. It was rejected by the Secretary of State on 12 July 2003. It is claimed that there were letters seeking to progress the earlier claim. This is a case where the applicant has a potential claim under the immigration rules. The claim under article 8 arises because in early 2002 the applicant met a woman settled in the United Kingdom and not long afterwards they became engaged to be married. At that time the woman was married to another and divorce proceedings were commenced in June 2003.

At the time of the hearing before the adjudicator the marriage had not been dissolved. It had been dissolved by the time of the hearing before the tribunal promulgated on 22 February 2006. Because of immigration control the applicant was unable to marry the woman. On his behalf Mr Chirico submits that he has a potential claim as a fiancé under the immigration rules to remain in the United Kingdom. That claim could be made from outside the United Kingdom; the tribunal holding at paragraph 20 that they had no reason to infer that a properly made out of country application claim for entry clearance would not be considered.

Unfortunately, the relevant authorities have not been submitted to the court in advance, so that I was not able to consider the skeleton argument in relation to the authorities but I have been reminded of them, all of which I have had occasion to consider in other cases, in the course of the rather prolonged hearing this morning. I have with Mr Chirico’s help been taken through the authorities on which he relies in support of his claim.

His claim on behalf of the applicant is that there has been a very long period of delay between the human rights application being made in November 1999 and the Secretary of State’s decision in July 2003. Moreover this is a case where there is a potential right under the rules. Further, it is not a case, it is submitted, where there has been acquiescence in the delay. Reliance is placed in particular on the case of Akeke [2005] EWCA Civ 947, a decision of this court, the leading judgment being given by Carnwath LJ. Reliance is also placed on Ajohh a decision of Collins J [2006] EWCH 1489 Admin which followed Akeke and where the period of delay was shorter. In Akeke it was one of 39 months. In Ajohh it was only 22 months. Mr Chirico has told me that the decision in Ajohh is likely to be appealed to this court. Mr Chirico submits that the tribunal has erred in law in that they have not, when considering the question of delay, had regard to the effect of Akeke. At paragraph 9 the tribunal stated:

“The arguments therefore raised with respect to exceptional circumstances or of unreasonable delay. Akeke [2005] EWCA Civ 947 and Strbac [2005] EWCA Civ 848 demonstrate the issue of delay in most cases will only be relevant if it has consequences for example preventing someone in the UK doing certain things which otherwise would require their making an out of country application.”

At paragraph 14:

“The delay was unfortunate but it certainly does not on the evidence appear to have given rise to any adverse consequences in terms of implications for the Appellant’s family life protected rights claim under Article 8.”

It is submitted that it was accepted in Akeke that delay of itself can be a factor which, upon a balance of the competing factors, overrides the need to maintain immigration control. Reference has of course been made to the case of Huang where it was held that certain circumstances are required before an article 8 application in circumstances such as the present can succeed. Mr Chirico submits that the tribunal, having applied the wrong test, the case should be remitted to them so that they can consider the delay in the light of Akeke and Ajoh. I have also properly been referred to the decision in Strbac [2005] EWCA Civ 848, a decision of this court, in July 2005, Laws LJ presiding. The court there took an approach to delay strongly adverse to that advocated by the applicant in this case. Mr Chirico submits that it is readily distinguishable because the facts in that case were different, the court concluding at paragraph 34 that:

“There is in any event no claim of interference with family life and the claim based on private life is at most tenuous.”

That being so, Laws LJ stated at paragraph 35:

“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.”

That was a case, submits Mr Chirico, where the other party to the relationship did not have the right to remain here with which the woman in this case has.

I have also been referred to the more recent case of HB & Others [2006] EWCA Civ 1713 a decision of this court, Buxton LJ presiding. Though it was obiter Buxton LJ, set out the approach which the tribunal should take to cases when delay is relied upon. Paragraph 24(1), having referred to authority:

“i.

Delay in dealing with an application may, increasing the time that the claimant spends in this country, increase his ability to demonstrate family or private life bringing him within article 8(1). That however is a question of fact, and to be treated as such.

“ii.

The application to an article 8 case of immigration policy will usually suffice without more to meet the requirements of article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].

“iii.

Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance under marriage policy as in Shala and Akeke); and persons who have no such right.

“iv.

In the former case, where it is sought to apply burdensome procedural rules in consideration of the applicant’s case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akeke] to enforce those procedural rules. [Shala; Akeke]”

Mr Chirico submits that the fourth of those propositions is, having regard to the authorities mentioned, too strongly stated against an applicant, in that Akeke shows that delay in itself can be a substantial factor without involving a national disgrace and one which may outweigh the need stated in the earlier paragraphs of Buxton LJ’s summary. In terms of arguability of the present case, I see some force in that, but it appears to me that the strong statements of Buxton LJ in sub-paragraph 2 are entirely justified on the authorities cited.

A major difficulty which Mr Chirico faces, which he has acknowledged though of course attempting to overcome it, is the fact that the delay following the formulation of the present claim is a short one and could not in itself be relied on. To begin to make a case there must be an inclusion of the period before the applicant met his fiancée to take the delay back from 2003 to 1999. He submits that in the cases mentioned the period as a whole has been considered. However, if one looks at the facts in Akeke, the principal authority relied on, it is clear that there was a very considerable delay after the marriage which was relied on under article 8. I quote from paragraph 2:

“She then made a further application in February 1999 to remain on the basis of her marriage, relying also on Article 8 of the convention (although at that time the Human Rights Act 1998 had not come into force). That application was not determined for over three years.”

That is very different from the present case. An article 3 case had been put forward. The relationship relied on began in the present case only early in 2002.

A further point arises on the question of acquiescence, a question considered in the case of MM where guidance is also given at paragraph 21:

“Delay will rarely, if ever, appear gross enough to bring a case within the last principle, unless as in Akeke, there is evidence to show that it was not acquiesced in by the appellant. The appellant is not entitled to sit back and enjoy whatever this country has to offer, relying on no more than the administrative incompetence of authorities, amazing as this may sometimes be. Evidence of some formal pressure on the Home Office (either by way of solicitors (or other representatives’) letters (as in Akeke) intervention by an MP (as here), or personal appearance at the Home Office, resulting in an attendance note recorded on the file by an official) is likely to be required to show that an appellant has not acquiesced in delay.”

Letters were written; one reminder on 7 July 2000 in relation to the claim as then made. Letters placed before the tribunal are not available to this court and I do not know the strength of them in terms of pursuing the claim. I have no doubt they were strongly stated in terms of the merits of the claim but what has been done does fall short considerably of the type of follow up which the court in any event would consider appropriate. Moreover the tribunal, while not basing its decision on this point, plainly was not impressed by the way in which the claim was pursued, stating at paragraph 14:

“Mr Lee have available to him to show that at any material time between the application in November 1999, other than in connection with a bail hearing dealt with in the letter that initiated the claim, that there was any pressure or chasing or desire to find out what the outcome of the application was.”

Mr Lee was counsel instructed on behalf of the applicant.

What I propose to do in this case is to take an overall view having regard to the several factors referred to. Mr Chirico, who said all that could be said on behalf of the applicant, submits that the court should not assume that the tribunal would come to the same decision on a reconsideration. The tribunal having applied the wrong test to delay, it is submitted, a remission is required, or at least there is an arguable case which should go before the full court for consideration of a remission.

The tribunal, even if it applied the wrong test, clearly took a strong view about the merits of the case and I do not propose to cite in detail the paragraphs in which they refer to it. I note that in the paragraph relied on as showing they applied the wrong test, paragraph 9, the tribunal did state that “in most cases” will delay be only relevant if it has consequences, for example of preventing someone in the UK doing certain things. That appears to leave the door open. The further passage relied on at paragraph 14 is again somewhat ambiguous in its approach. I would accept that there is some force in the submission that the test has not had regard to the up-to-date authorities which have been referred to me in considerable detail, and rightly so. I do not know to what extent the effect of them was brought to the attention of the tribunal.

Bearing in mind what is at any rate a possibility that the wrong test may have been applied, I do however consider that the delay in this case which should be borne in mind is only that from the formulation of the fresh claim. Mr Chirico submits that the authorities understandably do not cover every possible situation. The present case falls between the propositions expounded in the cases cited to me and this case should go for a full hearing.

I do not consider that there is a real prospect of success. I have regard to the dramatic change in the formulation of the case and in those circumstances it appears to me that reliance, if any, which can be placed on the earlier period of delay is very limited. The case was put on an entirely different basis, one on which it must have been refused, had it been considered promptly, and it is only when the fresh relationship arose in 2002 that the claim could be formulated for the attention of the Secretary of State. I have regard to that as my principal ground. It appears to me also that even if the earlier period should be taken into account, there was not the pressing of the claim which in accordance with MM was required if there was to be no acquiescence in it.

I have regard also to the nature of the case. On a remission the tribunal would inevitably consider, as the adjudicator did, though not the tribunal, the possibility of the parties going to live in Croatia. This is not a case where the circumstances can approach that degree of exceptionality which is now required upon an article 8 claim. I see no real prospect in any event, putting it at its highest, of the relationship which the applicant has happily developed with a woman settled in this country being held to override the need for immigration control.

For those reasons there is in my judgment no real prospect of success in this appeal and accordingly the application is refused.