Duka v Duka

1. MR JUSTICE COLLINS: This claim by Mr and Mrs Duka, who come from Kosovo, has a very long history and has been before the court or Adjudicators on a number of occasions when one adds in the claims by Mrs Duka's brother, a gentleman called Mr Renols Kabashi, which are linked with the claim before me. Mr and Mrs Duka arrived in this country on 2nd June 1999. The husband claimed asylum, and his wife as his dependant. In November 2000 the claim was rejected and removal directions were issued. There was an appeal to an Adjudicator. Both asylum and human rights grounds were considered.

2. The appeal was dismissed in May 2001. The Immigration Appeal Tribunal refused leave to appeal. In the meantime, Mrs Duka's brother, Mr Kabashi, had come to the United Kingdom and had discovered that his sister was living here and had joined her. He arrived in October 2000 and claimed asylum at the port. He had been born on 27th January 1984 and so was still a minor at that time. His claim was refused on 1st August 2001. He also appealed against that refusal decision, and his appeal was heard by an Adjudicator in April 2002. He had gone to live with his sister some three months before her husband's appeal which was heard by the Adjudicator in February 2001. By the time Mr Kabashi's appeal was heard by the Adjudicator in April 2002, he had been living with his sister and her family for some 18 months.

3. To go back to the relevant chronology, in October 2001 Mrs Duka made a human rights claim. That was refused in April 2002. Further representations making a further human rights claim and relying upon her relationship with her brother, Mr Kabashi, were pursued, but the Secretary of State refused to regard those as the making of a fresh claim. Again, those representing Mrs Duka tried again, but the Secretary of State refused to change his mind.

4. The decision of the Adjudicator who heard Mr Kabashi's appeal was that it should be dismissed in so far as it claimed asylum or a breach of Article 3 of the Convention, but that it should be allowed on the basis of Article 8 of the Convention.

5. I should, before going further, say that all those concerned had undoubtedly suffered severely at the hands of the Serbs when the Serbs were in control. Mr Kabashi in particular had been very badly treated indeed. They had had the experience of seeing the family home being burnt down and parents disappearing, and this all at a time, so far as Mr Kabashi was concerned, when he was in his teens.

6. The Adjudicator discussed whether there was a family life or whether there was an interference in Mr Kabashi's private life. This was in the context of evidence that he suffered from a degree of depressive illness and was under treatment and was being very much supported and assisted by the presence of his sister and her family in this country. The Adjudicator's conclusion was in these words:

"In the present case, although the appellant has only been resident in the UK for some eighteen months, this has been during a formative part of his life, and he has spent that time learning English and computer studies. He is very young. He has not been involved in criminal activity either here or in Kosovo. He has no spouse or children abroad who will be making applications to join him. His removal to Kosovo would trigger unhappy memories which could aggravate his depression. He might not be able to obtain the support and counselling he needs in Kosovo. I am satisfied that the legitimate objective of controlling immigration and achieving an ordered society will not be undermined by allowing this appellant to remain in the UK. I am satisfied that his removal would be a disproportionate interference with his physical and moral integrity and private life. I am also satisfied that for humane reasons the Secretary of State should exercise his discretion to grant leave for the appellant to remain in the United Kingdom. I therefore allow the human rights appeal under Article 8."

7. The Adjudicator had found, also, that he had established a family life in this country, but that it would not, so far as that was concerned, have been disproportionate to interfere with it by removal. It was only because of his mental condition that she was able to find in his favour.

8. I am bound to say that I find her decision a surprising one, but it was not appealed by the Secretary of State and, obviously, he was not entitled to go behind it. What he did as a result of it was to grant Mr Kabashi leave to remain in the United Kingdom until September 2003, when the situation would be reconsidered.

9. Following the refusal by the Secretary of State to entertain the application based on human rights as a fresh application, judicial review was applied for, leave to seek judicial review was granted, and the matter came before Pitchford J on 4th November 2002. Pitchford J rejected the claims. He decided that the Secretary of State's conclusion that it was unnecessary to reconsider the claims on human rights grounds made by Mrs Duka was correct, and that the Secretary of State was entitled, in striking the balance, to decide that it was not disproportionate to interfere with the family life that existed.

10. In paragraph 43 Pitchford J said:

"The Secretary of State was entitled to reach the conclusion that there would be no inconsistency between the two decisions; that is to say his decision in respect of Mr and Mrs Duka, and the adjudicator's decision in respect of Renols. Just as removal amounted to an interference with Mr and Mrs Duka's right to family life, that interference was proportionate, given the age of the family and the limited evidence of dependency. Renols' leave to remain on medical grounds expires in September 2003. There was no evidence before the Secretary of State that the stability of Renols' mental condition depended upon the continued presence and support of Mr and Mrs Duka. I do not consider, therefore, that the material placed before the Secretary of State rendered his decision either irrational or disproportionate."

11. Pitchford J did not consider a medical report which had come into existence shortly before the hearing before him, no doubt for the very good reason that it was not a matter that had been considered by the Secretary of State or put before the Secretary of State, and thus could not affect consideration as to whether the Secretary of State's conclusion was a correct one. I have seen a copy of that report, and the submission made is that it does not take the matter any further. With that submission made by Miss Stern, I entirely agree.

12. The report is from a psychiatrist, a Dr Taylor. It finds that having regard to what happened to him, Renols was suffering from "a psychiatric disorder of a severity that is presently seriously incapacitating", and was highly dependent in many ways upon his sister. She said that attempted treatment -- it is not entirely clear what the extent of such treatment was -- had not shown significant benefit, because she seems to have thought that the treatment was not likely to be effective anyway. She went on:

"His most effective source of therapeutic benefit (despite all the stresses from other sources to which she herself must currently be exposed) is evidently his sister and her household ... The continued fear of deportation must be exerting a destructive effect both directly and indirectly."

13. She concluded that his only hope of satisfactory release from his dilemma, so far as she could see, would depend not only on his own assurance of having indefinite leave to remain in Britain, but upon his sister and her husband and child being granted similar release from the threat of deportation.

14. It is not suggested -- indeed, it cannot be suggested -- that there is now any danger of persecution or ill-treatment if the family is returned to Kosovo. There is treatment available in Kosovo, although not so easily found and, no doubt, not to the standard which is, or should be, available in this country. There is no reason why Renols should not go to Kosovo with his sister and her family if they are removed. Although one does not doubt that there will be some hardship involved upon him, and indeed upon them, if that happens, the Secretary of State and the courts are concerned to see whether that hardship is sufficient to breach either the Human Rights or the Refugee Convention. It is worth reminding ourselves of the approach of the European Court of Human Rights in the case of Bensaid v the United Kingdom [2001] ECHR 44599/98, which was a case of a schizophrenic who was asserting that it would be a breach of Article 8 to require his removal to Algeria, where treatment was not available in the same way as it was available in this country, and indeed there was a real risk that his condition would deteriorate. Furthermore, it was very difficult, if not impossible, for him to obtain such treatment without travelling distances, putting him in danger because he would have to travel through areas where the GIA activities were carried on. The court in paragraph 46 of their judgment stated:

"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity."

15. The court approached the matter in a very critical fashion. It stated that removal would arguably increase the risk, as would the differences of available personal support and accessibility of treatment, but treatment was available, and the fact that the circumstances were less favourable than in the United Kingdom was not decisive. The court went on:

"The Court finds that the risk that the applicant would suffer a deterioration in his condition if he is returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative."

16. It pointed out that he was not a likely target of terrorist activity and that arrangements could be made for him to travel if necessary. The court accepted the seriousness of his medical condition, but stated this:

"Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3."

17. Then, in consideration of Article 8, it relied very much on its approach that the risk was, in its view, speculative, and that the risk was not to be regarded as one which can properly be established. So, in my view, it clearly is here. There may well be some adverse effect on Renols, but if the whole family returns to Kosovo in circumstances where there is no real danger to them, there is no reason to believe that his condition will continue to worsen, and he will have access to treatment. In those circumstances, in my judgment, having regard to the decision of Pitchford J, the further information in the form of a medical report is clearly insufficient to make any difference. In those circumstances, the question is whether the Secretary of State was entitled to take the view that the situation was not changed. In my judgment, he clearly was. In the letter of 19th December 2002, he explained, and explained reasonably and adequately, why he was not treating the application as a fresh one. That letter concluded with these words:

"The Secretary of State on finding that there are no outstanding representations and that all matters have been fully considered, reminds you that your client continues to have no basis of stay in this country and steps will now be taken to remove him and his family from the United Kingdom."

18. The following day, those representing the claimants submitted a notice of appeal under section 65(1) of the Immigration and Asylum Act 1999. In that notice they stated:

"Removal of the Duka family is in breach of their rights under Article 8 to enjoy family life because Mrs Duka's brother, Renols Kabashi is dependant upon her due to this psychiatric condition. This condition was recognised by the Secretary of State who following the allowing of his appeal by the Adjudicator under Article 8 ECHR granted him exceptional leave to enter the United Kingdom until September 2003."

19. By letter of 20th December the Secretary of State pointed out that in his letter of the 19th he had said:

"This letter dismissing your further representations does not attract a right of appeal under Section 65 of the Immigration and Asylum Act of 1999 as your client has already been through the one-stop appeal system ."

It goes on:

"This letter cannot have been more clear. The fact that the case has not been certified does not affect this issue. Certification would prevent a further right of appeal, if your client was allowed a right of appeal initially. However your client has no right to a Section 65 appeal due to Article 8 as he has been through the one-stop system."

20. It then went on to state that steps would be taken to remove him and his family. Two days later, on 22nd December, a formal notice of decision to issue removal directions was issued. The directions were that he be removed to Pristina on 9th January 2003. There then followed this claim for judicial review.

21. I granted permission on the basis that there had been no certification of the claim and that therefore a section 65 claim could be pursued. As a result of that, on 25th March the Secretary of State made a formal certification of the decision to issue removal directions under section 73(8) of the 1999 Act, the effect of which was, if valid, to preclude any right of appeal.

22. I should now go to the relevant provisions of the Act. Section 73, so far as material, provides:

"(1) This section applies where a person ("the appellant") has appealed under ... this Act and that appeal ("the original appeal") has been finally determined.

"(2) If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant's human rights, the Secretary of State may certify that in his opinion-

(a) the appellant's claim-

(i) could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii) could be reasonably have been made in the original appeal but was not so made;

(b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c) the appellant had no other legitimate purpose for making the claim."

Then, going further down:

"(7) Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.

"(8) The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion-

(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b) the appellant had no other legitimate purpose for making the application.

"(9) No appeal may be brought under ... this Act against a decision on an application in respect of which a certificate has been issued under subsection (8)."

23. That, of course, is in the context of the scheme in the 1999 Act, which is tightened in the 2002 Act, that all possible grounds for claiming that the individual could be entitled to enter or to remain in the United Kingdom should be dealt with on one and the same occasion, the so-called "one-stop procedure".

24. The right to appeal on human rights grounds is contained in section 65, and section 65(1), so far as material, reads:

"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision."

25. There was an issue as to how wide the section 65 right of appeal extended. That issue was determined by the Court of Appeal in July of last year in R(Kariharan & Koneswaran) v Secretary of State [2002] EWCA Civ 1102. The court there decided that section 65 should be given a broad construction, and that a decision to remove an individual was a decision which fell within its terms. There had been conflicting first instance decisions as to whether section 65 extended to such a decision. Auld LJ gave the leading judgment of the court in that case. He approved the approach of the Immigration Appeal Tribunal in its starred decision of Kehinde v Secretary of State (01/TH/02668). Kehinde concerned a refusal to revoke a deportation order. The point that was appealed to the Court of Appeal was that any decision which set removal directions, or resulted in removal if not overturned, was a decision which related, in the wording of section 65, to that person's entitlement to enter or remain in the United Kingdom. So in the present case there is no question but that the removal directions fall within section 65 and create a right of appeal. What is submitted by Miss Stern is that the letter of 19th December was not such a decision because it merely refused to consider that there was a valid fresh claim, and indicated that removal would take place, but until the decision to remove was actually taken, she submits there would be no appealable decision.

26. Mr Mullins draws my attention to the distinction between section 73(2) and 73(8) which I have already read, and also to paragraph 20 of schedule 4 to the 1999 Act, which indicates by sub-paragraph (1) that a person who is appealing under section 65 cannot be removed from or required to leave the country, but that does not prevent directions for his removal being given during that period. That, he submits, indicates that it is recognised that there may be an appeal under section 65 which is not based on removal directions. That, no doubt, is right because there may be an appeal, for example, against a refusal of leave to enter, where no directions had actually been set. So that does not by itself help to reach a construction of section 65.

27. However, as Miss Stern herself submits, section 73(7) clearly contemplates the possibility of a certification under subsection (8) where the Secretary of State has made any decision in relation to the appellant. It is not limited to decisions under the Immigration Act, but she submits that the fact that the Secretary of State could have certified the decision on 19th December does not mean that he had to, and the fact is that he did not then, and it was not an appealable decision. Accordingly, his failure to certify then is nothing to the point.

28. I should say that the significance of all this is that it is conceded by Miss Stern that if there was a valid appeal pending, the right to certify under subsection 73(8) did not exist because section 73(9) indicates that a section 73(8) certification prevents an appeal from being launched. It does not prevent an appeal which has been launched from continuing. I should say that that distinction has been removed in the 2002 Act, where the equivalent section, which is section 96, prevents an appeal being commenced, or from continuing, where there is a certification. So this point is not one which will be material since the 2002 Act has come into force.

29. Although she accepts, as she must, that section 65 is to be given a broad construction, nonetheless the decision must be a decision taken under the Immigration Acts relating to entitlement to enter or remain. She submits that that means that it is, in effect, limited to formal decisions under the Act, albeit not necessarily involving formal removal directions. It must be a decision which is related to the entitlement to enter or remain, but it must, as I say, be a decision made under the Acts which is so related.

30. In a broad sense, a refusal such as this to regard a claim as a fresh claim and so to change the Secretary of State's view is one which relates to his removal, and is taken in the context of the Immigration Acts. It will affect his immigration status in that it will have the result of his being removed. The question is whether section 65 extends that far. Mr Mullins submits that it clearly does, particularly as in the Pardeepan type cases where a fresh human rights claim is made if an asylum claim is rejected in relation to a decision prior to October 2000. The Secretary of State has frequently allowed an appeal under section 65, albeit all he has done is to refuse the application. That is, on the face of it, inconsistent with the approach that Miss Stern submits is the correct approach to this provision.

31. It seems to me that, adopting the approach that the Court of Appeal says is correct and giving effect to what is the purpose behind section 65, when one looks at the nature of this decision of 19th December, one sees that it not only is a refusal to regard the claim as a fresh one or as one which changed the Secretary of State's view, but it confirms that the Secretary of State is going to remove. And on 22nd December, he does just that.

32. In those circumstances, when one looks at that, it is, in my judgment, impossible to say that the section 65 appeal was not one which was validly in being. Nor do I believe that the decision in question of 19th December was one which did not attract a right of appeal. The fact is that the author of the letter of 20th December had not understood the law because he did not say that the letter dismissing further representations did not attract the right of appeal because it was not a decision within the meaning of section 65, but because the claimant had already been through the one-stop appeal system. The author then went on to say:

"Certification would prevent a further right of appeal, if your client was allowed a right of appeal initially."

That is clearly wrong. The fact that he had been through the one-stop system does not preclude a right of appeal, unless the Secretary of State certifies. That is the whole point of certification, and to say as the author of that letter did, was to misrepresent the legal position.

33. Even if I am wrong that this was an appealable decision, it seems to me that on the facts the coming into being two days later of the formal notice, the knowledge that the appeal was against the removal, and the continuation in being of the appeal created from that moment an appeal against that decision. So whether one looks at it from the point of view of the original decision of 19th December or the removal directions, the reality is that there was, after 22nd December, an appealable decision and an appeal pending against that decision.

34. Miss Stern submits that even though the removal directions quite clearly triggered a right of appeal, there was no appeal against them; in reality the only appeal was against the 19th December decision. If that is right, any subsequent appeal against those removal directions would no doubt be out of time, which means that by clearly lodging a notice of appeal against removal, the technical difference between the formal removal directions and the refusal and the decision refusing and so indicating that a decision to remove has been made would have, in the circumstances of this case, potentially resulted in the claimants losing their rights of appeal. That clearly cannot be right. The reality is that the Secretary of State could have avoided the problems, either by certifying at an early stage in a case such as this, or by making it clear in the letter dealing with an application for further leave to remain that the decision is not one which will automatically (if that be the case) require removal. In such circumstances, a section 65 appeal would be triggered by a subsequent decision to remove. That right, if it were to exist, would arise when the removal was decided upon. But if he positively states that he is going to remove, that seems to me to be a decision under the Immigration Acts which relates to the applicant's removal from the United Kingdom. It is not necessary that there be, as Miss Stern submits, a formal decision under the relevant section of the Act, which itself would normally give rise to a specific right of appeal. The whole point of section 65 is that it goes beyond and wider than the need for such a formal decision.

35. That being so, the question is whether section 73(8) can be used, and the answer to that must be, "No, it cannot". The submission then made is that it would be pointless to grant relief because there is no merit in this matter, and in any event the Secretary of State could certify under section 73(2). So far as the lack of merit is concerned, the reality is that one has to consider whether there is any conceivable chance that an appeal might succeed. And when I say "an appeal might succeed", I mean an appeal dealt with on a proper basis by an Adjudicator who applies the law correctly. There are undoubtedly compassionate circumstances which could be said to arise in this case. That is not a matter for the Adjudicator, it is a matter for the Secretary of State. The Secretary of State has decided, and in law, in my judgment, he is entitled so to decide, that there is no breach of either Convention in returning this family to Kosovo. That being so, I am quite satisfied that there is no merit in this claim, and that accordingly it would be a waste of public time and money and wholly unjustified to allow it to continue.

36. On the other hand, as Mr Mullins points out, there is no way in which in law this certificate can be upheld. That being so, it is impossible for me to prevent the matter going ahead. I am perfectly entitled to indicate my views, but that is not determinative. Miss Stern submits, on the other hand, that if a section 73(2) certificate could be issued and would be determinative, then there is no point indeed in permitting this case to go further. With that submission, I have a lot of sympathy. The problem, as Mr Mullins points out, arises in section 73(2)(a), which indicates that one of the conditions before a certificate can lawfully be issued is that the appellant's claim could reasonably have been made in the original appeal. It was not so made. He submits that by then Mr Kabashi had only been living with his sister for three months and it would have been impossible properly to have raised a claim based on Article 8.

37. Pitchford J considered a submission which he records as being made in much those terms. In paragraph 41 he says:

"Mr Mullins invites me to conclude that it was not a claim which reasonably could have been made during the hearing of Mrs Duka's appeal in February 2001, because, by that stage, Mr Kabashi had only been living with his sister for three months and his status was unknown. That is not an invitation I am able to accept. If it were right, the permutations leading to justifiable non-disclosures would be endless. In fact, I find extraordinary that Mrs Duka did not reveal to the adjudicator the fact that her 17-year old brother was living with her and claiming asylum."

38. Mr Mullins submits that that really goes to the facts of the disclosure, and not to the claim based upon that fact. On the other hand, it seems to me to be quite clear that it would have been wholly reasonable for it to have been indicated that Mr Kabashi was appealing and that in the meantime he was going to be living with his sister, but because of his condition, because of his status, it was wholly unreasonable to expect the family to be removed without him, leaving him on his own, and, as I see it, it would have been wholly reasonable, even though he had only been there for three months, to have raised that claim. I entirely agree with Pitchford J's approach in that regard.

39. In those circumstances, since I am told that a section 73(2) certificate would be issued if I decided that the 73(8) certificate was invalid, it seems to me that in the circumstances it is a wholly proper exercise of my discretion not to grant relief. In those circumstances, I propose to dismiss this application.

40. I should add that I have considered the approach that is right in relation to 73(2) and 73(8) in deciding whether there is any other legitimate reason for maintaining the claim. There are conflicting decisions, as I understand it: a decision of Burton J in Vemenac v Secretary of State [2002] EWHC 1636 Admin, and a more recent decision, of which no report is yet available, of Mitting J in a case called Balamurali given on 9th May. Mitting J did not agree with Burton J. I, too, do not agree with Burton J in so far as he sought to indicate that the test in section 73 was the same as that in section 72, essentially manifestly or clearly unfounded. That is, in my view, to read words into the Act which are not there, particularly when one bears in mind that if Parliament had wanted to apply the manifestly or clearly unfounded test, it could easily have done so. The starting point is for the Secretary of State properly to take the view that one of the purposes was to delay. Of course, in one sense every claim made has a purpose of delaying removal, but the word "delay" is important because the distinction is drawn between delaying removal and preventing removal. As I read it, what Parliament has in mind was that in the knowledge of the inevitable result, namely that removal would take place because there was no good claim to remain, the process amounts to a delaying tactic. When Parliament uses the expression "the appellant had no other legitimate purpose", it means no more than it says: namely, that there is no good reason, no legitimate reason, for pursuing the claim, and that is because it is a bad claim, and if the Secretary of State's view that it is a bad claim and thus there is no legitimate reason for pursuing it is correct, then he is entitled to certify. Unless that view is one which, on normal judicial review principles, is shown to be unlawful, it will stand. That, it seems to me, to be the clear purpose behind these provisions.

41. Of course, if the court takes the view that there is a claim which is one which has a real chance of success, it may well be that it would take the view that the Secretary of State must have failed to have regard to a material consideration in reaching his decision. But that is a question of fact which will depend on the relevant circumstances. However, whatever I say on that issue is perhaps going to be somewhat academic, since, as I understand it, the issue is, in any event, shortly to be decided by the Court of Appeal.

42. Mr Mullins, I am afraid you win, but you lose.

43. MR MULLINS: My Lord, so it seems. My Lord, given the uncertainties around this application, may I ask for leave for permission to appeal?

44. MR JUSTICE COLLINS: No, because this is under the 1999 Act. It is not going to be likely to arise in the future, and in any event I have been in your favour on the construction.

45. MISS STERN: My Lord, on that point could I rise and say that notwithstanding that we have won in the result on that point of construction, we too would want to ask for leave to appeal.

46. MR JUSTICE COLLINS: You will have to persuade the Court of Appeal.

47. MISS STERN: I am grateful.

48. MR JUSTICE COLLINS: I would have thought there had been enough delay in this case already.

49. MR MULLINS: My Lord, this case is subject to a certificate of public funding.

50. MR JUSTICE COLLINS: You can have it.

51. MR MULLINS: I am grateful.