SH (Serbia) v Secretary of State for the Home Department

This is an application for permission to appeal in a case of a citizen of Serbia and Montenegro in Kosovo who, it is important to note, comes from the Roma community. He had claimed refugee status many years ago; he first applied for asylum on 5 March 2000, having arrived hidden in the back of a lorry the day before. As the Immigration Judge records, there was what he described as a “lamentable delay” from his application in March 2000 until a decision in August 2005, with the removal directions dated 21 September 2004. This delay had no explanation, as the Immigration Judge found, after April 2001. The Immigration Judge found that there was a reasonable explanation up until that time in not processing this application, which was one amongst many, but he found that there was no explanation thereafter.

During that period of unexplained and unjustified delay this applicant met and became engaged to AH. He met her in the summer of 2003. They do not live together but they intend to do so, and their time together has been interrupted because this applicant’s fiancée has gone to study in the United States.

But this case is concerned with the impact of this unjustified delay upon the requirement of the Secretary of State that this applicant should return to Kosovo and make an application for entry clearance there. Although it was not decided at the time, the relevant principles are now those summarised by this court in HB (Ethiopia) v SSHD [2006] EWCA Civ 1713. The relevant principles are those applicable to a case where the burdens and procedural rules attendant upon being compelled to return and make application for entry clearance outside this country are not proportionate, having regard to the breakdown of the system, caused by the failure of the Secretary of State to consider this matter for a very long period, which he has not sought to justify.

The Immigration Judge concluded that whilst there was a “lamentable delay”, it had not caused detriment to this applicant up to April 2001 but, by implication, had thereafter. He also found that there would be no grave difficulty in having to apply for entry clearance despite the travel that he would have had to make on more than one occasion; once to Skopje and once to Metrovica. Both these conclusions are attacked.

The first ground on which application for permission to appeal is sought is a comment made by the Immigration Judge that:

“I note that he [has] not even met Miss H until the summer of 2003 and such delay as has occurred in the processing of his case has not, in my view, been material to the decision that I have to make.”

It is not clear precisely what the Immigration Judge meant. If he meant that the delay was irrelevant he was plainly wrong as a matter of law, but it is clear reading the decision as a whole, and in particular those parts of the decision from paragraph 32 to paragraph 39, that the Immigration Judge had embarked upon the question as to whether it was proportionate to require the applicant to go back to Kosovo and apply for documents there, having regard as to the effect it would have on his relationship he had built up with his fiancée.

In my judgment it is clear that the Immigration Judge did not dismiss the contentions on the basis that they were immaterial, but properly considered whether they were proportionate in a matter which, with hindsight, was wholly consistent with what this court said in HB. I reject that ground of appeal; in my view it has no reasonable or real prospect of success.

The next ground relates to the way in which the Immigration Judge dealt with the difficulties this applicant would face if returning to Kosovo. It is pointed out that when he considers the difficulty of travelling to Metrovica in paragraph 36, he made no specific reference to the fact that he was a Roma and the objective evidence which he recalls of the prejudice exhibited and violence shown towards members of the Roma minority; but he had earlier recorded that evidence and it is plain that he cannot have forgotten that the applicant was a Roma, since in the very next paragraph he refers to that.

In the next paragraph he deals with the difficulties or otherwise of having to go to Skopje to make the application and he considers it in the light of the evidence which he had obtained from an entry clearance officer in Kosovo as to whether such applications are made by those within Kosovo, including those from Roma applicants. That evidence shows that they are.

In those circumstances, in my view the Immigration Judge was perfectly entitled to conclude that there was not such grave difficulty in obtaining those documents as to make it disproportionate to require this applicant to return to do so, notwithstanding the very substantial, unjustifiable delay.

In my view, even if it happened by chance, this judge did look at the matter in a way which was consistent with the principles identified by this court in HB. He had to consider a very substantial delay, but it is not a ground of appeal to say that in some cases of such delay an Immigration Judge has found it would be disproportionate to require procedural requirement to be complied with and not in others. It must be recalled that in the paradigm case where the system broke down, Akaeke, this court was doing no more than upholding a decision that the delay was a national disgrace reached by the AIT, and this court agreed with it. It provides no warrant for saying that the Immigration Judge in the instant case was wrong as a matter of law.

In those circumstances this application is refused.