Mulhaxha, R (on the application of) v Immigration Appeal Tribunal

MR JUSTICE MACKAY: On 25 October 2002 Mr Justice Gage gave permission to this claimant to apply for judicial review against a decision of the Immigration Appeal Tribunal of 27 May 2002, which refused leave to the claimant to appeal against the decision of an adjudicator promulgated on 25 March 2002, who dismissed his appeal against a refusal of his application for asylum.

The claimant's factual background of relevance is as follows. He was born on 1 July 1976 in what is now the Federal Republic of Yugoslavia, and he is of Kosovan/Albanian ethnic descent. His father established himself as a prominent Albanian businessman over the years and became involved at a high level in a group of companies known as the Braca Karic Group whose ownership had high level links to Serbian politicians. In 1990, when he was still 14, the applicant suffered harassment while still in Kosovo because of his ethnicity and was at one stage arrested and beaten by Serbian police. Two years later, when still 16, he left Kosovo for Cyprus and pursued his education at the American International School there, his family being of some substance. Between 1992 and 1996 he and his parents all lived in Cyprus, his father continuing and developing his relationship with the Karic Group of companies, and all feeling safer outside Kosovo than within it. In October 1995 the claimant arrived in the United Kingdom on a student visa and studied at the American University in London, taking a BA degree in Business Administration. A year or so after he arrived his two younger sisters joined him and his mother in the United Kingdom and they pursued their studies at a lower level than his. In 1996 the whole family visited Kosovo for a short holiday, the significance of which will be seen later. In the following year the claimant met and formed a relationship with a Kosovan/Albanian girl Mjellma Mulla, whom he married in March 2001. In 1998 war broke out in his native region, Kosovo, and shortly after his father moved on a permanent basis to Moscow where he continues his association with the Serbian-owned group of companies.

On 6 April 1999 the claimant claimed asylum which was refused on 17 April 2001. His mother claimed asylum on 29 May 2001 and she was refused on 30 July 2001. On 3 January 2002 her asylum appeal was heard by an adjudicator at a time when she, the claimant and the claimant's wife were either living together or living in close proximity to each other. The decision was given in the mother's asylum appeal on 15 January 2000. It was favourable to his mother, and her appeal against refusal of asylum was allowed. Soon after, on 8 March 2002, the claimant's own appeal was heard by a different adjudicator. On 25 March her decision was promulgated, refusing his appeal.

On 27 May 2002 he sought leave to appeal from the Immigration Appeal Tribunal and was refused. He made therefore this claim for judicial review. The underlying determination against which the Immigration Appeal Tribunal had refused leave was based on evidence from the claimant but not his mother. I am told that in the mother's appeal a few weeks before the reverse had been the case. In his reasoned and careful decision the adjudicator found the claimant to be a credible witness. She accepted his account of earlier persecution. She accepted the family's move to Cyprus in 1992 which was either the result of relocation to accommodate the father's business interests or unfavourable political developments in Kosovo at the time. She recorded that it was, in her judgment, significant that the claimant and his family had returned to Kosovo in 1996 for a holiday, as she put it, something they would not have done had those individuals feared persecution at that time. That finding is important; there is no equivalent finding in the mother's adjudication. The holiday in 1996 is not mentioned there.

The adjudicator continued with the consideration of the facts, and accepted that he was the son of a high profile businessman still employed by a company associated with the Milosevic government. She had to consider whether he would be at risk of persecution were he to be returned to that country. She found that his family was well known and it was likely that he would be recognised as his father's son. She looked at the objective evidence as to the developments in Kosovo since the demise of the Milosevic government, which fell in October 2000, and dealt, over several paragraphs, with the political situation then prevailing; the conclusion was quite similar to the previous adjudicator's, namely that in general the vast majority of Kosovo Albanians can return to their places of origin without experiencing individual protection problems, but the view of the UNHCR was that there would still be individual Kosovo Albanians in need of protection because of their special circumstances.

The adjudicator went on to ask whether this claimant was one of those in need of international protection. Her conclusion was that he was not. She gave two reasons for that conclusion: first, that the whole family had been back to Kosovo since 1990 and she heard no evidence of any difficulties. Secondly, she heard nothing to satisfy, even to the low standard required in cases such as this, that his extended family had encountered any difficulties. So she concluded his circumstances were nothing out of the ordinary and there would be a sufficiency of protection for him as a result of the international presence upholding law and order in that area. It was unlikely, in her judgment, he would be targeted for perceived collaboration and therefore he had no well founded fear of persecution for a Convention reason.

The adjudicator then went on to deal with an Article 8 claim, explaining that the family life she was being asked to consider by the claimant was the family of himself, his wife and their 14-month old child. The adjudicator did this exercise and pointed out that he had undertaken these family obligations at a time when he was aware of his precarious immigration status, as the adjudicator put it, and that of his wife as well. She held that any interference with his rights in that regard could be justified in the circumstances of the lawful implementation of immigration control and would not be disproportionate.

The claimant appealed to the Immigration Appeal Tribunal and detailed grounds of appeal were drafted by counsel; I should say not by counsel Miss Mathias, who represents him today, she not having been involved in any of the lower hearings.

The original grounds, if I may so call them, are summarised very clearly in her skeleton argument today in this way. First, that in reaching her decision the adjudicator had failed to give adequate weight to the claimant's account of the visit to his family home by members of the KLA in May 2000 (I will have to return to that). Secondly, she had accorded undue weight to the fact the claimant's family had visited Kosovo in 1996 for a short holiday. Thirdly, she failed to have any regard to the March 2001 UNHCR Position Paper on the Continued Protection Needs of Individuals from Kosovo. One has only to read those grounds, drafted and summarised as they are, to see that they go to the adequacy or weight of the evidence in support of certain findings by the adjudicator, to see that they are therefore difficult grounds to maintain in an application of this nature where this court is not concerned to make its own findings but to review the lawfulness of those findings made below.

As to what may be called those first three grounds, the appeal tribunal in its determination considered that the findings of the adjudicator were consistent with the evidence she had and were fully supported by it. I quite simply find myself in agreement with that view. She treated the objective evidence from the UNHCR in a proper, legitimate way, bearing in mind that it had to be construed against the particular circumstances of the particular claimant's appeal. I cannot see any flaw in her reasoning or in the Immigration Appeal Tribunal's refusal of leave on those grounds.

The thrust of Miss Mathias's argument, while she did not abandon the earlier grounds, was based on what was called the new ground. Despite what will be immediately apparent from the chronology earlier in this judgment, despite the fact that he was, as I am given to understand, living with his wife and his mother at the relevant times, the claimant did not tell the adjudicator in his appeal of either the fact of or result of his mother's adjudication just weeks before and nor, indeed, I am told, did he tell his counsel who appeared for him at the adjudication. No reason or explanation is advanced for this. This is despite the clear wording of the rules governing the appellate procedure in such cases.

Rule 30 (2) of the Immigration and Asylum Appeals (Procedure) Rules 2000 states the overriding objective of appeals is -

The notice of appeal presented to the Immigration Appeal Tribunal suggested, on the face of it, that the mere fact that the mother's appeal had been successful, even though that mere fact was not communicated to the second adjudicator, should mean that the claimant's appeal should also have been successful. That is at least what it says on the face of it. That is not the case that has been advanced before me today. Miss Mathias, in my view, correctly and wisely, put this ground forward in a different way. But before I go to that it seems to me that the Immigration Appeal Tribunal understood it in the way it appeared to be being presented because of the way in which they dealt with it. The Vice-President said:

The refined and more attractive version of this ground put forward by Miss Mathias goes something like this, that it could not be said or argued that if the second adjudicator had been aware of the first adjudicator's determination and reasons for it, even though she would not have been bound to follow the earlier determination, that it would not have made a difference to the prospects of the claimant's appeal. Therefore the Immigration Appeal Tribunal was plainly wrong to reject this argument. I have already said I do not believe the Immigration Appeal Tribunal understood the argument to be this, but if they did was it wrong or perverse of them not to accede to it and give leave to appeal?

Miss Mathias's argument makes no concessions to the fact that the reason the second adjudicator was not told about the mother's appeal was that the claimant chose not to tell her. The claimant and his family evidently have decided on a fragmented approach to the exercise of their rights to appeal their unfavourable asylum decisions whereby the three adults of the extended family, all living together in the United Kingdom, have brought three separate appeals on the same, or very similar, grounds in each complete isolation from the others.

My first reaction, on introduction to this case, was and remains, that it hardly lies in his mouth to criticise any member of the appellate decision-making structure for not taking his mother's appeal into account. But the matter does not fall to be decided on that basis alone at least. The two decisions are separate decisions of independent adjudicators on different occasions and on different evidence. As I pointed out, neither the claimant nor his mother, as I am told today, gave evidence in the other's appeal. In two important factual respects the evidence on each occasion differed. In the mother's appeal there is a finding of fact by the adjudicator as follows:

Secondly, in the claimant's adjudication the adjudicator was told of the 1996 family holiday in Kosovo, but no such evidence was given to the adjudicator in the mother's appeal. It is not possible, confidently, to predict what the effect on the second adjudicator would have been of being shown the first decision beyond this: first, she would plainly have disapproved of what is so obviously a Rule 42 breach. She would probably have reminded herself that sufficiency of protection need not be the same question to consider when considering the case of a 26-year old man who had left Kosovo 10 years before as a boy, on the one hand, and a 51-year woman who is the wife of a prominent exiled businessman of some wealth with a perceived history of collaboration with Serbian interests. Secondly, she might conceivably, although not necessarily, have entertained some doubts as to the credibility of the claimant on seeing that his evidence conflicted at two significant points with that of his mother.

But in my judgment all of this is speculation. The refined version of the new points, attractively put forward though it is, is no better than its unsophisticated predecessor and had no more chance of persuading the Immigration Appeal Tribunal even if it had been unambiguously advanced, which it was not, and I see no merit in it.

That leaves the new Human Rights claim advanced by the claimant. It is plain that at his adjudication the claimant's argument was that his removal would infringe his human rights and specifically his Article 8 rights to family life by reference to his family life with a fellow ethnic Albanian to whom he was married and with whom he had a child and who was also herself an asylum seeker. He put this case forward in this way - and I make no apologies for returning to this fact - knowing that, as from 15 January previously, his mother and probably younger sister had succeeded in their efforts to stay in the United Kingdom while his wife's own claim had yet to be decided. So, dealing with the claim he did put forward, the adjudicator pointed out that he clearly had a family life in the United Kingdom but that it was right to say that he had been aware since the outset of his precarious immigration status, and she then made the balancing judgment as to the disproportionate or otherwise nature of the interference with those rights, and what removal would constitute. The result of that was that she dismissed the appeal.

Again, there is no reason advanced for the change of tack in the claimant's case. There is of course jurisdiction in the Immigration Appeal Tribunal to determine a new ground not raised below when the new ground raised is an allegation of the would-be appellant's human rights. Equally, the unexplained fact that it was not raised before is something which the Immigration Appeal Tribunal must be entitled to take into account when considering what weight to attach to the claim and whether it enjoys real prospects of success.

In addition, where the family at issue is, as is now the case, said to be comprised of a mother and her 26-year old son it is trite law to say that generally a family relationship is that which subsists between co-habiting dependants such as parents and children. Family life is not to be assumed to subsist between a parent and adult child (see Ahmut v Netherlands at paragraph 60 and the views of the Commission there reported, cited and approved by Mr Justice Pitchford in R v Duka and the Secretary of State for the Home Department, in particular the sentences that run as follows):

In this case no such evidence has been provided or advanced on behalf of claimant here. The Immigration Appeal Tribunal described this as "plainly unarguable" without any more by way of reasoning or explanation.

Miss Mathias criticises them for that. While I understand that criticism, in my judgment, on the facts of this case that was an acceptable response to a claim by a married 26-year old with a child who, for the first time on appeal, was seeking to advance the argument that his family life of relevance which required protection under the Act was that which obtained between himself and his mother. In conclusion, the Vice-President of the Immigration Appeal Tribunal said:

I agree and I cannot find that this decision can be challenged on any established ground which would entitle the claimant to the relief sought.

I therefore dismiss this application.

Thank you both very much for your argument. I am grateful to both of you for the way in which you put the case. Are your publicly funded or not?

MISS MATHIAS: I am.

MR JUSTICE MACKAY: There is no certificate filed. You can have your detailed taxation subject to matters being filed within seven days.