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

1. This is an appeal from a determination dated 2 December 2011 of the Upper Tribunal (Immigration and Asylum Chamber), setting aside the determination dated 8 April 2011 of the First-tier Tribunal, remaking the decision and dismissing the appellant's appeal on Article 8 grounds against the Secretary of State's decision to remove him from the United Kingdom to Kosovo.

2. The case has a lengthy procedural history. A brief summary will be sufficient for the purposes of this appeal. The appellant is a Kosovan citizen who entered the United Kingdom on 18 May 1999 with one year's leave to enter under the UNHCR's Humanitarian Evacuation programme. He applied for asylum. His application was refused. He appealed and his appeal was dismissed and his appeal rights became exhausted on 23 January 2002. Thereafter he became an overstayer, but no attempt was made to remove him until 8 November 2007, when he was told that he was liable to removal. The Secretary of State says that the appellant then absconded. The appellant does not accept this. In any event, by letter dated 21 March 2008 solicitors acting on behalf of the appellant applied for leave for him to remain in the United Kingdom outside the rules on Article 8 grounds under what has been called the "legacy policy".

3. On 5 November 2009 the appellant was stopped by the police on an unrelated matter and detained. His solicitors pointed out that he had an outstanding application for leave to remain, but on 17 November the Secretary of State set directions for the appellant's removal to Kosovo on 3 December 2009.

4. In a letter dated 23 November 2009 the Secretary of State refused the application for leave to remain under the legacy policy. The decision letter considered whether the appellant's representations amounted to a fresh claim under paragraph 353 of the Immigration Rules and concluded that it did not. The decision letter also considered the factors set out in paragraph 395C of the Immigration Rules and concluded that removal was justified.

5. On 1 December 2009 the appellant applied for permission to apply for judicial review on the basis that both the directions to remove him and the refusal of leave to remain in the decision letter dated 23 November 2009 were unlawful. The Secretary of State said that the appellant would be removed unless an injunction was obtained. An injunction was not obtained, and the appellant was removed to Kosovo on 3 December 2009.

6. The judicial review proceedings continued. In the course of those proceedings the Secretary of State accepted that the appellant's removal had been unlawful because he had not been served with notice of the decision to remove him, and the decision letter dated 23 November 2009 was flawed because the appellant's human rights submissions had been considered under paragraph 353 of the Immigration Rules when the Secretary of State should have considered whether they were "clearly unfounded" under section 94 of the Nationality, Immigration and Asylum Act 2002 ("the Act").

7. On 26 May 2010 the Administrative Court approved a consent order in the following terms:

8. The new decision letter issued pursuant to this consent order is dated 9 July 2010. That decision letter acknowledges the errors that had been made by the Secretary of State, but it was concluded that the appellant had not been prejudiced by the consideration of his asylum and human rights claims under paragraph 353 because the Secretary of State would almost certainly have certified them for the same reasons if the claims had been considered as they should have been under section 94(2) of the Act, so the appellant would not have been allowed to appeal against the decision to remove him until after he had departed from the United Kingdom.

9. The letter went on to enclose a decision to remove the appellant from the United Kingdom and it also certified the appellant's asylum and human rights claims as clearly unfounded. The letter pointed out that the consequence of these decisions was that the appellant could not appeal within the United Kingdom against the removal decision.

10. Pausing there, it will be recalled that the consent order gave the appellant liberty to amend his adjourned judicial review claim to include a challenge to the new decision that the order required the Secretary of State to make. Thus, the appellant could have challenged the lawfulness of both the removal decision dated 9 July 2010 and the certification of his asylum and human rights claims, and he could also have sought, as consequential relief, an order from the Administrative Court that the Secretary of State takes steps to return the appellant to the United Kingdom to enable him to pursue an in-country appeal against removal.

11. The appellant did not challenge the lawfulness of the new decisions, nor did he seek any further relief from the Administrative Court. On 4 August 2010 the parties signed a consent order giving the appellant leave to withdraw his application for judicial review upon the basis that his costs would be paid by the Secretary of State.

12. In the meantime the appellant had appealed to the First-tier Tribunal. The notice of appeal made it clear that "the decision under challenge is a decision of the Secretary of State for the Home Department dated 9 July 2010 to remove the appellant from the United Kingdom". It was of course necessary to identify the decision which was under challenge in order to establish that the appeal was being made in time. The notice of appeal said in terms that the appellant could not appeal against the decision of 23 November 2009. The appellant's appeal came before the First-tier Tribunal at a hearing on 8 April 2011. By that time the asylum claim had been abandoned, and the only ground on which removal was challenged was that it would be in breach of the appellant's Article 8 rights. Having concluded that Article 8 was engaged because removal would interfere with the appellant's private life in the United Kingdom, the First-tier Tribunal said in paragraphs 19 to 20 of its determination:

So the First-tier Tribunal concluded that it was unnecessary to consider the issue of proportionality and accordingly allowed the appeal on Article 8 grounds.

14. On appeal by the Secretary of State, the Upper Tribunal concluded that the First-tier Tribunal had erred in law. The critical passage in its reasoning is as follows:

15. Having so concluded, the Upper Tribunal re-determined the Article 8 appeal. It was accepted on behalf of the Secretary of State that the appellant was exercising what was described as "the composite of private and family life here" and that the decision to remove was an interference which potentially engaged Article 8. The Upper Tribunal, adopting the structured approach as set out in Razgar, first considered whether the interference was lawful and said in paragraphs 33 and 34:

16. The Tribunal then turned to consider proportionality and said in paragraphs 35 to 38:

“35.

We therefore proceed to the issue of proportionality. In effect Mr Hawkins was arguing that the decision to remove was disproportionate taking into account appellant’s circumstances in Britain and indeed, by extension, his circumstances in Kosovo now, the fact that he was treated differently from others in the same position and that he was treated wrongly by being removed before he was able to exercise a right of appeal against the refusal of his application under the legacy provisions.

36.

Firstly, considering the appellant’s circumstances here we accept that he had close relations with his brother, his sister-in-law and their children and that he was working here, but there is nothing to show that his private life here was of such a kind that he could not develop relationships, indeed relationships with his family in Kosovo, or work there. There was nothing particular about the work which he was undertaking here that showed that he was working for anything other than because he required an income. He was an overstayer and indeed an absconder. He had no right to be in Britain. While we accept that the fact that he was here for ten years would mean that he had built up a private life here there is scant evidence that that is so. There was no evidence from friends or work colleagues. In all we consider that there was nothing to show that the removal was a disproportionate interference, particularly given that he had no leave to remain, with his life here.

37.

We would add that it is appropriate that we take into account the appellant’s circumstances in Kosovo. We understand from the medical report that he is suffering from depression and from the papers it appears that he is also receiving assistance from the International Red Cross. However, what he says in his statement, that he has no family and no ties in Kosovo, no home and in effect no life there is simply untrue. He is living with his parents, in the family home where his father is working on the family farm and he has seven brothers and sisters in Kosovo – he has only one brother here. We therefore again reach the conclusion that his removal in that regard would not be disproportionate. We have also considered the assertion made by Mr Hawkins that the appellant has been treated differently from others in his position. The reality, however, is that the appellant arrived in Britain under the Humanitarian Evacuation Programme – he did not come here to claim asylum. Because he arrived under that programme he was admitted for twelve months and when he made his application for asylum the circumstances pertaining to his fear of persecution had gone. He was therefore not entitled to asylum and his appeal was unsuccessful. He should have left at that stage but decided not to do so and instead, illegally, absconded. There is nothing to suggest that the people whose cases are referred to in the judicial review proceedings who Mr Hawkins claimed were in the same position as the appellant, were actually in the same position as the appellant. Indeed it appears to be the case that they were all individuals who had claimed asylum rather than came in under the same programme as the appellant. It is clearly not evident that the appellant was not treated in the same way as others in his position. We note, indeed, that the list of those claimants does not indicate the dates on which they themselves claimed asylum.

38.

Finally we have considered the issue of the fact that the appellant was removed when he should not have been removed. However the reality is that the issue has already been dealt with in the judicial review proceedings and they did not, despite what was pursued by the appellant’s representatives, lead to a conclusion that the appellant should be returned to Britain.”

17. So much for the background. I turn to the grounds of appeal.

18. There are no less than ten grounds of appeal. On analysis, however, they raise four principal questions:

(1) Was the upper Tribunal's conclusion that the First-tier Tribunal had erred in law because it had confused the unlawful removal with the lawful section 10 notice to remove, issued as a result of judicial review proceedings, correct?

If the answer to that question is no, then of course the appeal must be allowed.

(2) If the answer to question (1) is yes, the First-tier Tribunal did err in law, is there any material error of law in the Upper Tribunal's assessment of proportionality on the basis of the evidence and arguments that were put before the Upper Tribunal?

(3) Was the Upper Tribunal entitled to reject the application that the appellant should be returned to the United Kingdom so that he could pursue an in-country appeal against his removal?

(4) Should the appellant now be given permission to appeal to advance a new point which the Upper Tribunal did not consider because it was not put to the Upper Tribunal, nor was it mentioned in the grounds for which permission to appeal was granted by the Vice-President of the Court of Appeal, namely what was described in the appellant’s substituted skeleton argument as the "6 to 8 year policy" point?

I will deal with these four points in turn.

25. (1) Did the First-tier Tribunal err in law? Notwithstanding the terms of the notice of appeal to the Tribunal, Mr Manjit Gill QC submitted on behalf of the appellant that the appeal to the First-tier Tribunal was an appeal against the underlying decision to remove the appellant in November 2009. Plainly, he submitted, there had been a decision to remove the appellant. That was demonstrated by the terms of the decision letter dated 23 November 2009. The appellant could not appeal against that decision at that time because he had not been given notice of the decision which had been taken. There was a distinction between the decision itself and the giving of notice of the decision. The decision to remove in November 2009 underlay all of the subsequent proceedings, and the Secretary of State could not rectify the unlawful removal on 3 December by taking a fresh decision to remove after removal had taken place. Nor could the Secretary of State lawfully certify the claim after removal had taken place.

26. In the alternative, he submitted that if the appeal was an appeal against the decision to remove dated 9 July 2010, then the First-tier Tribunal was entitled to have regard to the unlawfulness that had occurred prior to and including removal.

27. In my judgment, Mr Gill's submissions do not properly engage with the very different roles of the Administrative Court and the First-tier Tribunal. The Tribunal is a creature of statute. As a creature of statute, its jurisdiction at the material time was limited to hearing appeals against immigration decisions as defined in section 82(2) of the Act. There is only one immigration decision in this case and that is the decision to remove the appellant dated 9 July 2010. Because the appellant's asylum and human rights claims were certified in the decision letter of the same date, the appellant could not pursue his appeal against the decision to remove him dated 9 July 2010 while he remained within the United Kingdom. If the Secretary of State is said to have acted unlawfully in removing an individual and/or is said to have taken an unlawful decision which does not amount to an immigration decision such as a decision that fresh representations do not amount to a fresh claim under paragraph 353 of the Immigration Rules, or that a human rights or asylum claim should be certified under section 94 of the Act, then the remedy for the person aggrieved is to challenge the lawfulness of the act or decision in judicial review proceedings. That was precisely what was done in the present case. Both the refusal of the appellant's Article 8 claim based on the legacy policy, on the basis that it was not a fresh claim, and the unlawful removal of the appellant from the United Kingdom, were challenged in the judicial review proceedings. It was for the High Court to decide in those proceedings what, if any, remedy to grant if it concluded that any or all of the Secretary of State's decisions were unlawful.

28. On 26 May 2010 the High Court ordered by consent that the Secretary of State would issue a section 10 decision notice and would consider whether to certify the appellant's asylum and human rights claims. It will be remembered that the appellant was given leave to amend his judicial review claim to challenge the lawfulness of the new decision as and when it was served. If the appellant had wished to challenge the lawfulness of either the section 10 decision or the certification of his claims, then he could and should have done so in the judicial review proceedings. Not having challenged the lawfulness of those decisions in the judicial review proceedings, it is not open to the appellant to contend in proceedings before the Tribunal that the Secretary of State could not remedy the earlier unlawfulness in this way. In the judicial review proceedings the appellant could also have sought by way of consequential relief an order that the Secretary of State should take steps to return him to the United Kingdom. But the judicial review claim was not amended and no such order was sought. Instead, the judicial review proceedings were simply withdrawn by consent and the appellant appealed to the Tribunal.

29. Against this background the appeal to the First-tier Tribunal was expressed to be, and was, an appeal on Article 8 grounds against the lawful immigration decision dated 9 July 2010. As a matter of law it was not and could not have been an appeal against either the unlawful removal on 3 December or the certification of the Article 8 claim, or the decision of 23 November 2009.

30. On the hearing of the appeal, the First-tier Tribunal had to consider the merits of the appellant's Article 8 claim as if he had not been removed from the United Kingdom: see section 94(9) of the Act. In these circumstances, the Upper Tribunal's decision that the First-tier Tribunal had materially erred in law because it had confused the unlawful removal with the lawful decision to remove dated 9 July 2010 was plainly correct. There is no error of law in the Upper Tribunal's approach to the issue of lawfulness in paragraphs 33 and 34 of its determination. The First-tier Tribunal having wrongfully failed to consider what was in reality the only live issue in the Article 8 claim, that is to say proportionality, the Upper Tribunal was bound to consider that issue.

31. (2). Is there any error of law in the Upper Tribunal's assessment of proportionality in paragraphs 35 to 38 of its determination? Mr Gill submitted that the Tribunal had applied the wrong test because it had focused on the life that the appellant would be able to lead in Kosovo rather than the family/private life that would be, as Mr Gill submitted, destroyed in the United Kingdom. In my judgment, there is no force in this submission and the Tribunal did consider the nature and extent of the appellant's family/private life with his father, his sister-in-law and their children in the United Kingdom. But in circumstances where it rejected his claim that he had no family left in Kosovo and found that he would be living with his parents in the family home in Kosovo, a country where several of his brothers and sisters lived, the Tribunal was entitled at least to have regard to the fact that the appellant would be able to develop family relations in Kosovo.

32. Although Mr Gill disputes the Tribunal's finding that the evidence as to the appellant's private life in the United Kingdom was sparse and maintains that it is always difficult for an appellant who is out of the United Kingdom to present such evidence, in this case the appellant had a brother who was in the United Kingdom and who was able to give oral evidence to the Tribunal. In addition, the appellant was able to put his evidence to the Tribunal by way of witness statements. Mr Gill was not able to identify any particular matter which the appellant might have wished to place before the Tribunal, which he was unable to do because he was in Kosovo rather than in the United Kingdom.

33. The Tribunal was entitled to conclude that the evidence provided on behalf of the appellant was sparse, but such evidence as was presented was considered by the Tribunal. This is not a case where the Tribunal failed to have regard to a material consideration. The appellant's brother's oral evidence as to the appellant's life with him, his wife and their children, and the short witness statements provided by the children, were all adequately summarised in the Upper Tribunal's determination. Although it is said that the appellant's removal would not be in the best interests of the children and that this issue was not considered, there is no indication that it was advanced as a distinct argument before the Tribunal. That is not in the least surprising. All the very short witness statements from the children show was that they were close to their uncle and that they were sad that he had left for Kosovo. The closeness of the relationship was a factor which the Upper Tribunal expressly acknowledged.

34. In the end, this submission amounts in reality to no more than a perversity challenge, but it falls very far short of establishing that the Tribunal's conclusion that the interference with the appellant's Article 8 rights was proportionate was in any way perverse. One can have some sympathy with the appellant that his brother was granted asylum and then indefinite leave to remain, but the Upper Tribunal noted in paragraph 35 of its determination the submission based on the proposition that the appellant had been treated differently from others in the same position. It dealt with that submission in paragraph 37 of its determination, pointing out that the other cases relied on were cases of persons who had come to the United Kingdom as refugees, whereas the appellant had arrived under the humanitarian evacuation programme and was therefore entitled initially to a relatively short period of leave.

35. Mr Gill submitted that there was no underlying difference, but the plain fact of the matter is that those with refugee status were treated differently from those who came here under the Humanitarian Evacuation Programme. For these reasons I do not consider that there is any error of law, and certainly no material error of law in the way in which the Upper Tribunal addressed the issue of proportionality.

36. (3) The submission that the Tribunal should have ordered that the appellant be returned to the United Kingdom. The Tribunal first responded to that submission when it was deciding whether the First-tier Tribunal had made a material error of law. In paragraph 16 of the reasons for its decision that there had been a material error of law, the Upper Tribunal said:

37. That approach was effectively reiterated in paragraph 33 of the Tribunal's determination in which it said:

38. Mr Gill submits that the Tribunal was required to form its own view of the matter. In my judgment, the Tribunal approached the matter in the correct manner; that is to say, there had been no challenge in the Administrative Court to the lawfulness of the removal decision dated 9 July 2010 or, importantly, to the certification of the asylum and human rights claims. Unless the certification was quashed, the appellant had no right to appeal whilst in the United Kingdom. It would not have been appropriate for the Tribunal to effectively sidestep the certification by ordering the return of the appellant to the United Kingdom. Whether or not certification was lawful was a matter for the Administrative Court. That issue was not pursued in the judicial review proceedings. No application was made for an order requiring the return of the appellant to the United Kingdom. That was the basis on which the Upper Tribunal was entitled, and indeed bound, to consider the appeal.

39. For these reasons, therefore, on the material that was put to the Upper Tribunal, I can discern no error of law in the Upper Tribunal's determination.

40. I turn then to the fourth issue, which is whether the appellant should be granted permission to appeal to raise a new argument that was not placed before the Upper Tribunal - an argument that was not included in the very many grounds on which permission to appeal was sought, and indeed was not even mentioned until the substituted skeleton argument dated 6 March was filed with the court on 8 March, ten days before the hearing listed for today, 18 March.

41. As the matter was put in the substituted skeleton argument, it was contended that the Secretary of State had a distinct policy whereby those who had been in the United Kingdom for 6 to 8 years were generally given indefinite leave to remain under the legacy exercise, referred to as the "6 to 8 years policy". It was contended that there was such a policy, and that the Secretary of State had failed to disclose that policy to the Upper Tribunal and therefore there had been such unfairness that the Upper Tribunal's determination ought to be set aside by this court.

42. The proposition that there was a 6 to 8 years policy was considered in two decisions in the Administrative Court, R (Hakemi and others) v the Secretary of State for the Home Department [2012] EWHC 1967 (Admin), a decision of Burton J on 19 July 2012, and R(Mohammed) v the Secretary of State for the Home Department [2012] EWHC 3091 (Admin), a decision of Mr Steven Morris QC, sitting as a deputy High Court judge dated 2 November 2012. The Vice-President granted permission to appeal on 6 September 2012 after Hakemi, but before Mohammed.

43. The respondent's skeleton argument pointed out that the underlying decision in both Hakemi and Mohammed was that there was no distinct 6 to 8 years policy. The policy was that which was contained in chapter 53 of the Enforcement Instructions and Guidance (EIG), which had been amended in August 2009 to include reference to 6 to 8 years residence and which had been published: see paragraph 70 of Mohammed.

44. In Mohammed the Secretary of State's decision not to grant indefinite leave to remain was quashed in judicial review proceedings because the Secretary of State had failed to take into consideration the chapter 53 guidance. In response to the respondent's skeleton argument the appellant’s argument shifted again. Mr Gill in his oral submissions contended that there was a duty on the Secretary of State to draw the Tribunal's attention to the policy in chapter 53 of the EIG. It was not enough that it was a published policy. There is no doubt that at a very broad level of generality the Secretary of State is under an obligation to disclose relevant policies to the Tribunal even if those policies are not referred to by or on behalf of the appellant. However, whether a failure to disclose any particular policy will cause unfairness such as to arguably amount to an error of law on the part of the Tribunal, if it unwittingly fails to have regard to the unmentioned policy, and whether the court should grant permission to appeal well out of time to allow such an argument to be pursued, are very much fact sensitive decisions.

45. Mr Gill referred us to the decision of this court in AA (Afghanistan) [2007] EWCA Civ 12, which was concerned with an admitted failure to draw policies relevant to child asylum seekers to the attention of the Tribunal. Keene LJ said in paragraph 28 of his judgment that:

46. This is not an asylum case. The appellant is an adult who was legally represented before the Tribunal in his Article 8 appeal. There was no discrete 6 to 8 years policy, which the Secretary of State failed to mention. Applications under the legacy policy were dealt with under the published guidance in chapter 53 of the EIG, and that had led to apparently inconsistent decisions. However, the inconsistency between the decisions that had been made under the legacy policy and the decision in the appellant's case was an issue that had been raised on his behalf and it was considered by the Upper Tribunal. The First-tier Tribunal specifically mentioned chapter 53 of the EIG.

47. There has to be some finality in litigation. It will be recalled that in this case the appellant's application under the legacy policy was initially refused as long ago as November 2009, and that refusal was repeated in the July 2010 decision letter. No complaint was made about the failure to refer to chapter 53 in the application for permission to appeal to the Vice-President, which advanced a very large number of grounds of appeal, even though Burton J had by that time given his judgment in Hakemi. The Vice-President suggested that a revised skeleton be prepared; one was prepared but the new ground which forms the subject of this application was not raised until it was mentioned in a substituted skeleton argument, which was filed less than two weeks before this hearing. This is not a short point of interpretation or a pure point of law. If we gave permission to raise this ground of appeal, the respondent would have to be given a proper opportunity to respond to it. Had the point been raised earlier the respondent might have wished to refer to factors under paragraph 395C which would have militated against the grant of leave to remain, notwithstanding the length of residence. Because this issue has been raised at such a late stage we simply do not know what the response would be.

48. In these circumstances, I do not think it would be appropriate to grant permission to the appellant to raise this new point at this very late stage. So I, for my part, would refuse permission to appeal on this ground and I would dismiss the appeal.

Lady Justice Rafferty:

50. I agree.

Mr Justice Ryder:

52. I also agree.

Order: Appeal dismissed