Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF MONDI ZEQAJ
(CLAIMANT)
-v-
IMMIGRATION APPEAL TRIBUNAL
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
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MR M S GILL QC (instructed by Pearson & Winston) appeared on behalf of the CLAIMANT
MR D BEARD (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE SULLIVAN:
Introduction
This is an application for judicial review of a decision of the Immigration Appeal Tribunal dated 10th April 2003 refusing leave to appeal against the decision of an Adjudicator promulgated on 7th~March 2003 refusing the claimant's appeal against the Secretary of State's decision to reject his claim for asylum.
Factual background
The claimant is an ethnic Albanian from Kosovo who claims to have arrived illegally in the United Kingdom on 30th June 1998 and who claimed asylum on 3rd July 1998. He was not interviewed until 13th March 2002. By letter dated 14th March 2002, the Secretary of State rejected his claim. Further submissions that to return him to Kosovo would be in breach of his human rights were rejected in a letter dated 4th September 2002.
The claimant appealed against these decisions and his appeal was heard by an Adjudicator on 17th February 2003. By this time much had changed in Kosovo and the Adjudicator's conclusion that the claimant did not have a well-founded fear of persecution were he to be returned there is not challenged. The grounds of appeal to the tribunal related to the manner in which the Adjudicator had dealt with the claimant's appeal under Article 8 of the European Convention on Human Rights. In paragraph 26 of his Determination, the Adjudicator referred to the skeleton argument that had been prepared by counsel who then appeared on the claimant's behalf:
"Submissions were made on behalf of the appellant by [counsel]. She most helpfully presented a skeleton argument. She invited me to find that the appellant had been in the United Kingdom for over four years and had contributed significantly to the community. His condition was such that he could not safely return to Kosovo because his depression would worsen and he would be without support. There was no indication that the treatment that he required in Kosovo for his arthritis and for his stress would be available. She indicated that she would send to me a report from the Ministry of Health and Social Welfare about the situation in Kosovo. That report has now been obtained. The treatment was available to the appellant in the United Kingdom and I was invited to find that it would be unreasonable or unduly harsh to return him to the isolation of Kosovo, when he had a supportive family and girlfriend in the United Kingdom."
Under the heading "Family Life", the skeleton argument contended that the claimant had:
" . . . established close personal ties with his father and his partner as well as a degree of dependency between himself and his relatives".
Much emphasis was laid on the claimant's mental health and it was contended that:
"The appellant's claim should therefore be considered in light of the following factors underpinning the application and relevance of Article 8 in cases where there is medical evidence which submits that removal would be detrimental to the appellant's mental health/moral and physical integrity."
Under the heading "Private Life", reference was again made to the claimant's mental state and the extent of the dependency of the claimant on his father and his partner. It was submitted that the Secretary of State had failed to take into consideration the fact that there would be "a gross and probably permanent separation of the family". Finally, it was suggested that the Adjudicator should make a recommendation for exceptional leave to remain on compassionate grounds, taking the medical, family and private life rights into account.
Against this background it is not surprising that the Adjudicator began his consideration of whether it would unreasonable or unduly harsh to return the claimant to Kosovo with an assessment of the evidence relating to the appellant's health. He concluded (paragraph 54) that the claimant had "sought to exaggerate the difficulties of his physical and mental conditions." He dealt with the issue of family life in paragraphs 48 to 55 of his Determination as follows:
I bear in mind also the issue of family life as enshrined in Article 8 of the Convention. I bear in mind that a structured approach should be taken in this matter. Firstly, to enquire to ask whether there is family life: secondly, if so, whether to remove the appellant would constitute an interference with it: whether such interference is lawful and finally whether it is proportionate. I bear in mind the leading case of Mahmood.
So far as the appellant's relationship with the family is concerned, I accept there may indeed be interference with family life in that regard. His father has indefinite leave to remain and, although the status of his mother is yet uncertain, it would be surprising if her status did not follow that of her husband. Different considerations may of course apply to the siblings. It is to be noted that the appellant came to the United Kingdom at a different time from his parents and other siblings. He does have the experience of living apart from them.
A balance has to be struck between the interests of the appellant and his family and that of the community and the need to secure effective immigration control. I say the family with some reservations because it is clear from the authorities that it is primarily the interests of the appellant that would have to be considered rather than the interests of any third party. For these reasons which I have already indicated I do not find that the appellant has the need for the degree of support which he claims that he has by reason of his illness. No evidence has been adduced as to the extent of his arthritis nor indeed as to his involvement with medication over the long term.
Mahmood recognises that a degree of hardship may inevitably result in the removal of an appellant. Parties do not have the right to choose where they reside. Whether or not there are any insurmountable obstacles to members of the family joining the appellant in Kosovo is a relevant matter to be considered, although generally speaking that would be in the context of a marriage. Significantly, no mention of marriage was made in the course of the evidence of Miss Maclean to me. She indicated that it was the future intention to live together. No insurmountable obstacles to the parties living together in Kosovo have been advanced to me. Equally, were the parties to marry, the option of making proper application for entry clearance would be available to the appellant once he has returned to Kosovo.
[Deals with the claimant's medical condition].
I recognise of course that it would be more comfortable and convenient for the appellant to remain in the United Kingdom but such is perhaps not the true test to be applied in these cases. I bear in mind the recent decision in the Court of Appeal in Ullah which indicated that if the risk did not reach the degree as envisaged in Article 3 of the European Convention of Human Rights it is doubtful that any of the other Articles would succeed.
Looking at the situation of the appellant both in the context of Ullah and also within the context of Mahmood I find that it would not be disproportionate in all the circumstances to return the appellant to Kosovo. I make it clear that I find that he has sought to exaggerate the difficulties of his physical and mental conditions in the circumstances, therefore, the appellant's appeal in relation to asylum is dismissed. His appeal in relation to his human rights is also dismissed.
I bear in mind that it has taken a number of years for the appellant's appeal to be heard. There is nothing to indicate that such a delay was attributable to him. I bear in mind that the other members of the family are being considered in relation to their status and situation. Although it is not appropriate for me to make any recommendation in the circumstances of this case, it may be that a holistic approach to his situation and status might be the only reasonable one to take by the Secretary of State, before implementing any decision to remove."
The grounds of appeal settled by counsel contended that the Adjudicator had:
Failed to consider that the appellant's removal to Kosovo would be a complete bar to the continuation of the appellant's family life, particularly failing to properly consider:
That the appellant's father has been granted asylum status and that his mother and siblings, if granted asylum status, would be issued passports that did not permit them to travel to Kosovo.
That the appellant would have to make an application for leave to enter to marry, or for a fiancee visa in order to continue his relationship with his girlfriend.
That the appellant himself would not be likely to secure employment in Kosovo and would not be able to afford to travel to the UK to pursue or continue his family life with his parents, siblings or girlfriend.
In failing to consider that removal would constitute a complete bar to the continuation of the appellant's family life failed to properly consider the issue of proportionality and proper immigration control."
The Tribunal's response to these grounds was as follows:
"There is no merit in the grounds of application. The grounds of application amount to no more than a disagreement with the Adjudicator's findings and an attempt to reargue the issues which were before the Adjudicator.
In paragraph 49 of the Determination, the Adjudicator took into account the fact that the claimant's father has exceptional leave to remain and determined the Article 8 claim on the basis that, although his mother's status is uncertain, it would be surprising if her status did not follow that of her husband's. He was right to note that the position may be different for the siblings. The Adjudicator noted that the claimant had had experience of living apart from his parents and siblings.
In paragraph 51 of the Determination, the Adjudicator took into account the claimant's relationship with his partner. He noted that no insurmountable obstacles to the parties living together in Kosovo had been advanced to him and considered that, if the couple were to marry, the claimant had the option of making an entry clearance application.
In paragraph 52 of the Determination, the Adjudicator took into account the claimant's medical condition.
The Adjudicator's decision that the claimant's removal was proportionate to the legitimate aim of immigration control was sound, and one which was open to him.
Paragraph 1(c) of the grounds of application asserts that the claimant would not be likely to secure employment in Kosovo and that he would not be able to afford to travel to the United Kingdom to pursue or continue his family life with his parents, siblings or girlfriend. Although these two factors were not expressly referred to in the Adjudicator's Determination when he considered whether removal would be proportionate, they do not (even if they are accepted) undermine his decision that removal would be proportionate, given his finding that the claimant has had experience of living apart from his parents and siblings and given that the Adjudicator considered that the claimant had the option of applying for entry clearance to join his partner, if they were to marry.
When read as a whole, the Determination is a full and fair assessment. There is no misdirection in the law. An appeal would have no arguable prospect of success."
The Claimant's Submissions
Mr Gill QC and Mr Waheed (neither of whom had been involved in the earlier proceedings) who appeared on behalf of the claimant did not make any serious attempt to submit that there was any defect in the Tribunal's reasoning in so far as it dealt with the grounds of appeal that had been submitted. The claim as advanced in their submissions before me was based on a number of grounds which had not been put before the Tribunal. It was contended that the Tribunal should nevertheless have considered these grounds because they were "Robinson obvious", that is to say they had a strong prospect of success regardless of whether or not they had been raised before the Tribunal.
The first and principal ground of challenge was that the Adjudicator had no regard to the effect of the Secretary of State's delay in assessing the claimant's asylum claim. It was submitted that this should have formed a central part of the Determination process, because the claimant would have been granted refugee status and indefinite leave to remain ("ILR") if the Secretary of State had dealt reasonably promptly with his claim in 1998. If the claimant had been granted asylum and ILR, he would not have needed to rely on Article 8 in order to prevent his removal from the United Kingdom. Since he was now forced to rely on Article 8 as a consequence of the Secretary of State's delay, the proportionality exercise should have been conducted in a manner that was more favourable to the claimant.
In advancing the submission, Mr Gill's starting point was the judgment of Buxton LJ in R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] INLR 276 at page 296:
"A substantial part of the appellants' case was based on the current policy of the Secretary of State with regard to what I will call direct Kosovan claimants: that is, those whose first point of entry into the European Union is the UK, and who therefore do not fall under the provisions of the Dublin Convention. At present, the Secretary of State grants asylum to all such claimants. Mr Beloff QC [who appeared on behalf of the Secretary of State] told us that in so acting the Secretary of State was loyally applying the decision of the Immigration Appeal Tribunal in Gashi and Nikshiqi v Secretary of State for the Home Department (United Nations Commissioner for Refugees Intervening) [1997] INLR 96: the policy did not necessarily represent the Secretary of State's own view. Nevertheless, the decision in Gashi and Nikshiqi stands as the current view of the authorities of the UK with regard to the rights under the 1951 Convention of direct claimants."
That judgment was given on 25th March 1999. In Shala v Secretary of State for the Home Department [2003] INLR 349, Keene LJ said in paragraph 9 that this policy, of granting refugees from Kosovo refugee status, or at least exceptional leave to remain ("ELR"), lasted until mid-1999. The appellant in that case had arrived in the United Kingdom on 25th July 1997 and claimed asylum on the same day. His claim was not refused until 25th July 2001. In late 1998 he had begun a relationship with a Czech national who was also an asylum seeker. They lived together. She and her sons were given refugee status in May 2000. When interviewed in July 2001, the claimant said that they intended to marry. They had married by the time the Adjudicator determined the appeal. In paragraph 14, Keene LJ said:
"What is striking about both the decision of the Tribunal and that of the Secretary of State is that in each the position of the appellant has been equated with that of any normal applicant who wishes to obtain leave to enter on marriage grounds. This comes through very clearly in the passage from the Tribunal's determination quoted earlier in this judgment. But, as Mr Blake QC has rightly pointed out, the appellant's case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the UK for a variation in that leave on the grounds of his marriage. The Tribunal does not appear to have considered that submission, which was clearly put before it as para [11] of its Determination indicates. In other words, but for the remarkable delay on the part of the Home Office in dealing with his asylum claim, the appellant would not have fallen into the category where the applicable policy requires an application for leave to enter to be made from outside this country."
Having referred to a number of authorities, Keene LJ said this in paragraphs 15 and 16:
"Put another way, the fact that the delay by the Home Office has deprived him of that advantage should be seen as an exceptional circumstance which takes the appellant's case out of the normal run of cases where a person with no leave to enter seeks such leave on the basis of marriage: see R(Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, [2001] INLR 1, at para [26].
I fully accept that some weight was to be attached in the decision-making process to the fact that the appellant began his relationship with BF and married her while his status in this country was undetermined. This is a relevant factor, and not an important one: see Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. But the whole balancing exercise was conducted without any weight being attached to the fact that the policy being put into one side of the scales would not have been applicable at all but for the delay on the part of the Home Office. While it may be uncertain when the appellant would more normally have been granted refugee status or exceptional leave to remain, it is unfair that he should suffer because of an uncertainty arising from the Home Office's failings. Nor can it be said that allowing him to apply in-country would encourage others to exploit the established procedures. To require the appellant now to leave the UK and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent, who does not appear to have reflected adequately, if at all, the significance of his department's delay in the present case."
Schiemann LJ agreed, saying in paragraph 24 that the appellant could not have done more to claim asylum:
"In short he was, at the time that he came, a meritorious applicant for permission to remain here, at any rate for a while. It was not until more than 4 years later that the Home Office, after chivvying by his solicitors, got round to arranging an interview to test the genuineness of his asylum application. Automatically to apply to a person in his position a policy designed to discourage both meritorious unmeritorious applicants from jumping the queue is a wrong approach to the difficult problem of deciding whether the interference with the person's rights under Article 8 is necessary in a democratic society."
On behalf of the claimant it was submitted that, by analogy, a similar approach should have been adopted to his Article 8 claim. Mr Gill acknowledged that the delay argument had not been raised before the Adjudicator or in the grounds of appeal to the Tribunal, but submitted that since the point had a strong chance of success on appeal, the court should consider it on the basis that it was "obvious" in the sense described by Dyson J (as he then was) in R v Immigration Appeal Tribunal ex parte Shen [2000] INLR 389 at page 396, paragraph 29:
"But the word 'obvious', used by the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, sub nom R v Secretary of State for the Home Department, Immigration Appeal Tribunal ex parte Robinson [1997] INLR 182, is used in a rather special sense. It means a point which has a strong prospect of success, as opposed to a point which is merely arguable. Usually, a point which has a strong prospect of success will be a point which jumps out of the pages, and which competent and experienced counsel would be expected to identify and at least incorporate in a skeleton argument prepared for a hearing. But it is not impossible for a point not to be spotted even by experienced counsel but which, once identified and considered, it is clear has a strong prospect of success."
Both Robinson and Shen were decided before the Immigration and Asylum Appeals (Procedure) Rules 2000 came into force on 2nd October 2000. Rule 18(6) provides:
"The Tribunal shall not be required to consider any grounds other than those included in the application".
The approach to rule 18(6) in the light of Robinson was considered by Davis J in Ko Ko Naing and Misal Eyaz v Immigration Appeal Tribunal [2003] EWHC 771 Admin. His judgment makes it clear that whilst grounds not included in the application to the Tribunal may subsequently be raised in judicial review proceedings, they must not only have a strong prospect of success but also have been "readily discernible" before both the Adjudicator and the Tribunal: see paragraph 35. As Davis J said in paragraph 39:
"However, the Immigration Appeal Tribunal is not, as I see it, to be expected or required to dredge through the whole file of papers and materials lodged to see if there are matters which might give rise to arguable grounds, albeit not identified in the grounds that have been put forward; that would be an impossible burden were it not so. It is precisely for those reasons and in order to achieve compliance with the rules, as Brooke LJ explains in Robinson, that if a ground subsequently sought to be relied upon is one not expressly raised before the Immigration Appeal Tribunal, then that must not only have strong prospects of success -- and both Ms Webber and Ms Harrison accepted that the 'threshold was set high', in Ms Webber's words -- but also be readily discernible."
I respectfully agree.
Mr Gill submitted that any new point, provided only that it could be said to have a strong prospect of success, could found an application for judicial review of the Tribunal's decision to refuse leave. Otherwise, he submitted, the United Kingdom might be in danger of breaching its obligations under the Convention. In my judgment, such an approach would render rule 18(6) nugatory and turn judicial review proceedings into a free standing appeal by way of rehearing on fact and law from the Tribunal. New points may be raised but they must pass both limbs of the Robinson test. The approach advocated by Mr Gill is not necessary in order to enable the United Kingdom to comply with the Convention. All Signatories to the Convention have provisions within their domestic legislation that are designed to ensure finality of litigation. Such provisions, provided they are reasonably applied, are not contrary to the Convention.
In any event, it must be borne in mind that if, after the conclusion of proceedings before the Tribunal, it is claimed that a genuine new point has arisen, then representations can be made to the Secretary of State who will decide, in accordance with well established policy and practice, whether to treat those representations as a new claim. A wrongful refusal by the Secretary of State to accept a new claim is itself susceptible to judicial review. In the present case I was told, for example, that the claimant and his partner have married and that the claimant's sister had been granted asylum. The proper way to take account of these changes is to make representations to the Secretary of State, not to seek to reargue the merits on the basis of new evidence in judicial review proceedings of the Tribunal's decision.
Setting aside for a moment the question of whether the delay point now sought to be argued on behalf of the claimant has a strong prospect of success, it cannot sensibly be said to have been readily discernible on the material that was placed before the Adjudicator and the Immigration Appeal Tribunal. In so far as delay was said to be relevant, since it had enabled the claimant to establish a family life in the United Kingdom, it was taken into consideration by the Adjudicator, who also noted that it had taken a number of years for the appeal to be heard and that there was nothing to indicate that the delay was attributable to the claimant. Before the Adjudicator there was no criticism of the length of time taken by the Secretary of State to determine the claimant's asylum claim, much less was there any suggestion that the Secretary of State's delay should lead the Adjudicator or the Tribunal to adopt any different basis for consideration of the Article 8 claim.
Turning to the question of whether this ground would have had a strong prospect of success if it had been raised before the Tribunal, the answer, on the basis of the evidence which is now available, must be "No". Responding to the allegation in the grounds for judicial review that the claimant would have been granted asylum if his claim had been dealt with promptly, Mr Finegan, of the United Kingdom Immigration Service said this in a witness statement dated 8th January 2004:
From early 1998 it was recognised that Kosovo Albanians were being severely persecuted by the Serb authorities and most cases were granted asylum. The claimant in this case arrived on 3rd July 1998 and claimed asylum. It is correct to state that the claimant's case did not receive the prompt consideration which it ought to have done. Had it done so I would have expected the claimant to have been granted at most 12 months exceptional leave to remain. The claimant would then have had to apply to renew his exceptional leave to remain. However, at that point, most asylum claims from Kosovo were refused and applications for exceptional leave to remain were considered on their individual merits. Those who had already had exceptional leave to remain would not have leave curtailed but it would not automatically be extended and would be considered on its own merits. There is nothing in the claimant's file to lead me to believe that this claimant's leave would have been extended.
In early 2000 enforced returns to Kosovo recommenced. It is likely that, had the claimant's asylum claim been considered after that date, that it would have been refused. On either analysis above, were the Secretary of State to have considered the claimant's application in a reasonable time he would have had exceptional leave to remain either until 25th April 2000 or 13th September 2000. On the expiration of his year's leave to remain (no more than one year's exceptional leave to remain was being granted) the claimant would have had to apply for an extension. Bearing in mind the matters raised on behalf of the Secretary of State in the reasons for refusal letter and the fact that enforced returns to Kosovo had recommenced by then, as a case officer I would have expected that the claimant's application for an extension of his exceptional leave to remain would almost certainly have been refused."
This evidence was disputed in a witness statement of Mr Bjelos, an immigration consultant with the claimant's solicitors. Mr Bjelos contended that:
"It was well-known to advisers working in this field that the policy at that time was to grant refugee status which carried with it the grant of indefinite leave to remain. This policy was adopted after the decision of the IAT in Gashi and Nikshiqi v Secretary of State [1997] INLR 96 which held that ethnic Albanians in Kosovo were at risk of persecution from the Serbs by reason of their ethnicity. This is best described in the decision of the Court of Appeal in R v Secretary of State ex parte Besnik Gashi [1999] INLR 276, 25.3.99. At that time the Secretary of State gave people short tests to check whether they were in fact ethnic Albanians from Kosovo and provided they satisfied these tests they were granted asylum and large numbers were indeed granted asylum in a fairly straightforward process."
In response Mr Finegan clarified the matter in a second witness statement dated 24th February 2004. Having referred to the passage from Buxton LJ's judgment in Gashi, set out above, Mr Finegan said this:
"From the responses to enquiries initiated by me, I do not believe that this is an entirely accurate statement of the manner in which such claims were dealt with from 1998. To the best of my knowledge and belief, there was never a blanket policy of granting all Kosovan asylum claimants refugee status under the 1951 Convention and indefinite leave to remain ("ILR") in the United Kingdom. Whilst in the majority of cases in which caseworkers reached a final decision the claimants were granted refugee status and ILR prior to June 1999, each case would be decided on its own facts to see if they brought the applicant within the 1951 Convention.
Further, if that statement were to be read to suggest that everyone from Kosovo who claimed asylum in 1998 were granted ILR, that would be quite wrong. The majority of those who actually claimed asylum in 1998 did not receive a final decision in their cases during that year or indeed well into 1999. As a result, many were not granted asylum because by the time that their claims were the subject of a decision, the situation in Kosovo had changed so that such cases would generally not be recognised as refugees nor would they receive a grant of ILR.
Attached hereto at Exhibit 'BF2' are statistics by month for 1998 relating to the asylum applications received in the United Kingdom, excluding the dependants, and initial decisions on applications of nationals of the Federal Republic of Yugoslavia. These figures demonstrate the large number of applications to process. As can be seen, most of those whose claims were actually processed during 1998 were granted asylum, although the statistics show that a relatively small number of claims were in fact processed and a decision issued. This was due to the burden on the Secretary of State by the great numbers arriving and claiming asylum, which by July 1998 (when the claimant arrived) amounted to 845 applications per month.
From 15th June to 13th September 1999, following the commencement of the UNHCR humanitarian evacuation programme ("HEP"), consideration of all asylum claims from the Federal Republic of Yugoslavia made prior to 15th June 1999 was suspended.
In the case of the claimant, had his claim been one of those considered before 15th June 1999 it is possible he would have been granted refugee status with an accompanying grant of ILR. From 15th June 1999 to 13th September 1999, IND policy was that applicants whose cases were considered were to be granted 12 months exceptional leave to remain ("ELR") instead of full refugee status. After 13th September 1999 when the UNMIK had control of Kosovo and hostilities had ceased, consideration of Kosovan asylum applications reverted to a case by case assessment on the merits of individual claims and many were refused outright and certified. Had the claimant's application been dealt with after 15th June 1999, as noted in my previous statement, the claimant would have been granted at most 12 months ELR. Due to the huge volume of unforeseen asylum applications at the time and scant IND resources there was very little chance of the claimant's application being considered before 15th June 1999."
The table (in Exhibit BF2) is of particular interest. It shows a substantial rise in the number of asylum applications from the beginning of 1998, when applications were running at 270 or 280 per month, to July, August and September when the number of applications had increased to between 845 and 905 per month. In July, when the claimant sought asylum, the Secretary of State had received 845 applications. The table does not tell us how long it was taking to determine applications, but it is plain that a substantial backlog was building up because only 80 applications had been determined in that month, of which 50 were granted asylum, 20 were granted ELR, and 10 were refused.
Given the substantial rise in the number of those applying for asylum from the Federal Republic of Yugoslavia in the middle of 1998, it is by no means clear that even if the claimant's claim had been processed efficiently, it would have been decided (in his favour) before 15th June 1999. In considering what would have been a reasonable time for determining the claimant's application, the unexpected surge in the number of applications in mid-1998 cannot be ignored. It is not suggested that the delay in determining the claimant's application was criticised either by him or by solicitors on his behalf at any stage before the Secretary of State's decision in 2002. It is therefore unduly simplistic to assert that if the claimant's application had been determined without undue delay, he would have been granted asylum and ILR, or that if granted ELR to remain for 12 months, he would have been granted an extension.
In any event, I accept the submission of Mr Beard on behalf of the defendant that the decision in Shala should be distinguished on its facts. In a number of decisions it has been recognised that Shala turned upon its own particular facts: see R (on the application of) Bekteshi v Immigration Appeal Tribunal [2004] EWHC Admin, Janjanin v Secretary of State for the Home Department [2004] EWCA Civ 448, and most recently Alihajdaraj v Secretary of State for the Home Department, a decision of the Court of Appeal on 13th July 2004. Had Shala's application for asylum, made in June 1997, been dealt with by mid-1999, he would have been able to apply from within the United Kingdom for permission to remain as a spouse. What the Court of Appeal found to be disproportionate was the requirement that in 2001 (when the appeal was before the Adjudicator) he should be required to make an application from Kosovo for entry to the United Kingdom as a spouse. This particular factor simply does not apply in the present case. Indeed, the Adjudicator noted that there had been no mention of marriage in the parties' evidence before him, merely a future intention to live together (see paragraph 51 of the Determination).
For the sake of completeness, I should mention that Mr Beard also submitted that the claimant's case on Article 8 was based upon a logical fallacy. An appellant's circumstances, for the purposes of Article 8, must be considered "in the real world", not on some hypothetical basis. In the real world it was known that the claimant had been refused asylum, and it would therefore be wholly illogical to approach the Article 8 balancing exercise on the basis that he would, or should, have been granted asylum at some earlier date.
I consider that there is considerable force in that criticism, but I prefer to base my decision on the fact that Shala is clearly distinguishable because --
it is by no means clear that this applicant for asylum, who arrived in July 1998, would have had his case considered before mid-June 1999 even if his claim had been considered without undue delay; and
his own circumstances differ from those of Mr Shala, since it is not contended on his behalf that he would have been the beneficiary of any particular policy for the purposes of Article 8, such as that enabling an applicant to make an in-country application to remain as a spouse.
It follows that the first and principal ground of challenge must fail.
I can deal somewhat more briefly with the remaining grounds, since none of them can be said to be readily discernible or "obvious" in the Robinson sense. In ground two it was submitted that the Adjudicator (and hence the Tribunal) had failed to have regard to the impact of the removal of the claimant on the whole of the family. Reliance was placed on paragraph 55 of the Adjudicator's determination in which the Adjudicator said that the Secretary of State might take a "holistic approach" to the situation and status of the family. It was submitted that the Adjudicator was thereby abandoning his own responsibility to take a holistic view. This criticism of the Adjudicator is unfair and is based upon wrenching one sentence entirely out of context. That context includes both the remainder of the Adjudicator's Determination and the submissions in the skeleton argument to which the Adjudicator was responding. The Adjudicator set out his approach in paragraph 50 of his determination (see above). Mr Gill did not refer me to any authority for the proposition that this approach was wrong, and it was not criticised in the grounds of appeal to the Tribunal.
Although he looked at the matter from the perspective of the claimant's Article 8 rights, the Adjudicator plainly did have regard to the whole of the family, including the claimant's father, mother, siblings and partner. In paragraph 55 he was responding to two matters, namely the fact that the status of some of the other family members was, at that time, still under consideration by the Secretary of State and the Adjudicator could not prejudge the outcome of that consideration, and the fact that he had been asked in the skeleton argument to make a recommendation for ELR on compassionate grounds. In paragraph 55 the Adjudicator was doing no more than responding, as sympathetically as he could, to that request.
Ground three criticises the Adjudicator's statement in paragraph 51 of the Determination that no insurmountable obstacles to the parties living together in Kosovo had been advanced before him. A number of obstacles were set out in Mr Gill's skeleton argument. However, if ones looks at the skeleton argument presented to the Adjudicator, there can be no criticism of the Adjudicator's conclusion as no insurmountable obstacles had been identified. It will also be noted that there is no suggestion in the grounds of appeal to the Tribunal that there were any insurmountable obstacles. In these circumstances, the Tribunal was not required to trawl through the evidence for material to support an argument which had not been raised.
Ground four contends that the matters raised in the other grounds should be considered in the context of the claimant's poor mental health. It is difficult to see how this argument can be maintained in the light of the fact that the Adjudicator, having heard the evidence, concluded that the claimant had exaggerated the difficulties of his physical and mental conditions. This conclusion was not challenged in the grounds of appeal to the Tribunal. In his Determination the Adjudicator had noted that the claimant did not appear to have sought specialist medical assistance for his problems prior to an assessment by Dr Baluchi, a consultant Neuropsychiatrist, on 14th January 2003, a month before the hearing. Although the matter is not touched upon in the grounds of appeal to the Tribunal, Mr Gill, in supplementary submissions, referred to a letter from the claimant's GP dated 14th January 2004 which showed that the claimant had previously been receiving treatment. Since this letter was not produced to the Adjudicator or the Tribunal, it could not be said that this point was readily discernible. This supplementary submission is perhaps a useful illustration of the extent to which these judicial review proceedings are being used as an opportunity to reargue the merits on the basis of entirely new factual information.
I am satisfied that these subsidiary grounds do not pass either limb of the Robinson test. But even if any of these points had been raised in the grounds of appeal to the Tribunal, any criticism of the Tribunal's decision would now have to be considered against the background of the House of Lords decision in R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27. In cases where removal from the United Kingdom is resisted in reliance on Article 8, five questions will normally have to be answered (see paragraph 17 of the speech of Lord Bingham). This case is concerned with the fifth of those questions: "Is any interference with the appellant's private or family life proportionate?" In paragraph 20 Lord Bingham said this:
"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his own judgment in the first instance. On appeal the Adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an Adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, MR C M G Ockelton and Mr J Freeman) observed that:
'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.'
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
I am satisfied that this is not one of that small minority of exceptional cases. For this reason, in addition to the other reasons set out above, this application for judicial review must be dismissed.
MR GILL: My Lord, subject to anything my learned friend has to raise, I would ask for permission to appeal. The basis of that is, basically, the submissions your Lordship has already heard. I have in mind the rule 18(6) point. I think there was some talk of that coming up for various reasons, if that did end up in the Court of Appeal. The other point is Shala --
MR JUSTICE SULLIVAN: Yes, thank you very much.
MR GILL: It is perfectly fine. I will ask for the usual order in relation to public funding.
MR JUSTICE SULLIVAN: Yes, thank you. I need not trouble you, Mr Beard, about the application for leave.
MR BEARD: I am most grateful, my Lord. The Secretary of State would ask that a transcript be expedited. It is the case, as I understand from those behind me, that there may be a number of forthcoming cases raising similar arguments and issues, albeit not all in relation to ethnic Albanians. The Secretary of State is mindful of the difficulties in relation to this case, where it might be ordinarily be useful for any court deciding these cases to be able to refer to your Lordship's judgment. I do not have information as to when these cases are to appear. I can ask those behind me.
MR JUSTICE SULLIVAN: Let me just check if the transcript can be expedited. (Pause). Mr Beard, in fact both the shorthand writer and I want to clear our respective desks, for obvious reasons. On that basis, the shorthand writer will be able to get it to me reasonably early on Friday so you will have it the first week of the vacation.
MR BEARD: I am most grateful to your Lordship and the shorthand writer.
MR JUSTICE SULLIVAN: Mr Gill, it may be discourteous of me to say so but as you incorporated your submissions by reference as a basis for permission to appeal, so I incorporate my judgment as my reasons for rejecting it. I acknowledge that the rule 18(6) point might have been another compelling reason to grant permission because it is of wider interest, but in my judgment, in the light of Razgar the point is perhaps made somewhat academic. So I refuse permission. I am not satisfied that there are reasonable prospects of success, or any other compelling reason to grant permission. You shall have the usual order in respect of public funding. Mr Beard, in the light of that I assume there is no further application from the Secretary of State.
MR BEARD: No, my Lord.
MR JUSTICE SULLIVAN: Thank you both very much.