Lekstaka, R (on the application of) v Immigration Appeal Tribunal & Anor

J U D G M E N T

1. MR JUSTICE COLLINS: This is what I imagine will be one of the last extant claims for judicial review of a refusal by the Immigration Appeal Tribunal of permission to appeal. It is a case in which the adjudicator's decision was given just before the coming into force of the relevant provisions of the 2002 Act which substituted statutory review for judicial review.

2. The reason why it has taken such a long time to be heard is because it was believed that a pending Court of Appeal decision in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105 was likely to provide, if not the answer, at least material assistance in producing the answer to this claim. In fact, in my view it was, for reasons which will become apparent, unnecessary to await the outcome of Huang because the principles and the approach to be applied would not have been any different had Huang not been decided. However, having said that, now that we have Huang , it does produce some assistance to the correct approach to be adopted. But that is the reason for the long time that it has taken this claim to be decided.

3. The circumstances and background are of considerable importance and disclose a sad state of affairs so far as the claimant is concerned. He comes from Kosovo, being an ethnic Albanian. He was born on 18th May 1983. In 1998 his family decided that it was desirable that he be removed from Kosovo and sent to a place of safety in Macedonia, and that is what happened. It is, of course, no doubt well-known that at that time the Serbs had been persecuting Albanians in Kosovo and that led to NATO forces being used to protect the Albanians and sort out the situation, and that in its turn led to the setting up of KFOR in June, I think, of 1999. Since then the situation in Kosovo has, to a considerable extent, settled down.

4. In any event, in September 1998 the claimant's aunt and her son, his cousin, arrived in this country and sought asylum. In March 1999 the claimant's father was killed and so was another uncle and a third was shot in the head, as a result of which he lost the sight of one eye and suffered partial blindness in the other. That uncle was the husband of the aunt who had come to this country in 1998. In May 1999 the aunt and cousin were recognised as refugees by the Secretary of State and were therefore given indefinite leave to remain, which was the policy and, as far as I am aware, still is the policy in relation to the grant of refugee status.

5. Meanwhile, the claimant's mother and sister, who had remained in the Kosovo, had disappeared and they have not been traced since. His father had been killed. The result was that he had no family left in Kosovo and certainly none in Macedonia. One of his father's brothers had been killed, the other was in this country with his family. So it was that arrangements were made whereby the claimant could come to this country and he did so, entering clandestinely in a lorry, on 10th November 1999. He was then 16 years old. He claimed asylum on arrival but the policy of the Secretary of State was that minors should not have their claims for asylum considered until they became of age and in the meantime they were granted temporary admission to the country. Having entered this country, he joined up with his aunt and cousin and also his uncle, who had by the end of 1999 been reunited with his wife and the cousin. The claimant lived with them, and indeed has ever since lived with them, as part of their family, and the evidence before the adjudicator, which was accepted, was that he had been treated as a son by them.

6. It was not in fact until August 2002, some 15 months after he reached the age of 18, that the claimant was issued with his SEF to enable him to give the reasons why he was claiming asylum. He filled in that statement and was interviewed. In the course of it, although he did not specifically spell out that he had an Article 8 claim, he indicated the existing state of affairs, namely that he was living with his uncle and his family and that he had no family anywhere else.

7. The Secretary of State refused the claim for asylum on 31st October 2002. The refusal of the asylum claim was clearly right because by then the situation in Kosovo had improved and there was no reason why the claimant should have been at risk of persecution or indeed of any significant ill-treatment in Kosovo. The only question was whether he should benefit from the application of Article 8 of the European Convention on Human Rights on the basis that it would be an interference with his family life to require him to leave the country and go back to Kosovo. That matter was not specifically dealt with in the Secretary of State's refusal letter. It was dealt with in a blanket form in the sense that the Secretary of State merely said that he saw no reason why any Convention right should prevent return.

8. Removal directions were therefore set. The claimant appealed and came before the Adjudicator on 30th April 2003. The Adjudicator dismissed his appeal on 8th May. He then applied for leave to appeal to the Tribunal and that application was refused on 1st July 2003, although that refusal was not served upon or notified to the claimant until 25th July. Because the determination of the Adjudicator had taken place before 9th June 2003, the right of appeal to the Tribunal was not limited to a point of law but was at large.

9. The claim for judicial review was not lodged until 28th October 2003 and thus was more than three months, certainly after the date of the refusal by the IAT, but also more than three months after the date upon which the refusal was notified. There was a point taken on delay. Indeed, that has been maintained because in granting permission Moses J specifically indicated that the delay point could still be taken, although he had granted permission because he was of the view that on the merits the claim was arguable.

10. There has been question as to whether time begins to run from 1st July or from 25th July. I decided in a case called Vimalathasan [2003] EWHC 2285 Admin that time ran from the date of the decision, rather than from the date of promulgation. That decision was largely driven by a number of claims which came before this court, lodged usually the day before, or very much in the last week of, the three months which were thought to be permitted from the date of promulgation rather than from the date of the decision. I sought to point out in that case that time in my view ran, not from the date of the promulgation, but from the date of the decision. The relevant Rule, which is 54.5, refers to the claim having to be filed promptly and in any event not later than three months after the grounds to make the claim first arose. The question of course is whether the grounds first arose when the decision was made or when the decision was notified.

11. Since that decision of mine, the House of Lords has considered the effect of decisions made and whether they need to be served before they have any effect in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604. That case concerned social security and income support regulations. What had happened was that the Home Office had reached a decision. They did not notify the individual concerned that the decision had been made. The effect of it was to remove her right to income support and that support was removed, although she did not appreciate, and had no reason to appreciate, that that was going to happen and so did nothing about it.

12. Lord Steyn, who gave the leading judgment of the majority in that case, thought that what had been done was monstrous and decided, in apparently relatively general terms, that where a decision determining the appellant's status involved a fundamental right, it must be communicated to a person affected by it. In the absence of such notification, there was no operative determination. As I say, although on the facts the decision determined status -- and one can see that therefore it was an important decision -- Lord Steyn put the matter in relatively general terms. What he said in paragraph 26 was this:

"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice."

13. It is to be noted that Lord Millett in his speech did not go quite that far and there was a reservation as to the nature of the decision in question.

14. It is perhaps, in the circumstances of this case, not necessary to decide whether the Anufrijeva decision changes the view which I had formed in Vimalathasan because, whichever is the appropriate date, I do not propose despite any delay to prevent this claim going ahead and, as will become apparent, succeeding. Mr Beard very properly recognises that this is not a case in which he can rely at all on the provisions of section 31(6) of the Supreme Court Act 1981.

15. It is true that the excuse for the delay is not of the best. It can be said, in fairness to the claimant, that his solicitors, who were then dealing with the matter, ceased to trade and therefore he had to find other solicitors to take over the claim. There was then an application for legal aid which took the Legal Services Commission a relatively lengthy time to decide. By then the end of September had been reached and counsel was instructed to draft the necessary papers at the beginning of October. Counsel took some three weeks or so to draft the necessary grounds. That is not intended to be a criticism of counsel, merely a statement of fact as to the length of time that was taken. It may be that counsel did not appreciate, for whatever reason, the need for expedition.

16. It seems to me that on any view the claimant acted reasonably promptly in seeking to obtain advice and then to have that advice properly acted upon and, in those circumstances, as I take the view that this claim has merit, I am not disposed to refuse on the ground of delay.

17. I should perhaps say that I am not persuaded, in spite what is said in Anufrijeva , that for the purposes of time running the right date is not the date of the decision. There will be no prejudice to the person affected because the court will always recognise that there has been a period of time elapsing between the date of the decision and the date upon which it is notified, if that indeed be the case, and will make allowances for that in considering whether discretion should be exercised to permit the claim to proceed. But in principle, as it seems to me, the date is indeed the date upon which the decision was made and that is known because it was the practice of the IAT, to date the decision. If of course the decision in any given case is not dated, so that there is no reason to know precisely when it was made, it is reasonable to run from the date upon which it is notified. But that will depend upon the circumstances of an individual case. However, perhaps it is better that I say nothing which will be regarded as any precedent for anything because, as I say, on the facts of this case, I am not minded to regard delay as a bar.

18. I must now see what the Adjudicator did find. He accepted the facts, as I have already outlined, and he dealt with the Article 8 point in two paragraphs, 35 and 36. What he said was this:

"35. The Appellant was a boy of 16 when he came to the United Kingdom. He has lived since then with his aunt and uncle, the brother of his father. He has developed a friendship with his cousin who is five years older than he is. He has been attending college and has a British girlfriend. His father is dead and the whereabouts of his mother and sisters [is unknown]. Family life can exist between an uncle and a nephew, Boyle v United Kingdom [1995] 19 EHRR 179, and I am satisfied that there is in this case an extant family life between the Appellant and his aunt and uncle.

36. I find, however, that the Respondent's action in seeking to remove the Appellant is in accordance with the law and has the legitimate aim of the maintenance of immigration controls. I have also considered whether removal by the Respondent is proportionate in a democratic society to the legitimate aim to be achieved. I have taken into account the background evidence, which has been placed before me. The Appellant has lost his father and all contact with his mother. He has formed a family relationship with his uncle's family and has developed bonds with his aunt and cousin. The Appellant is now a young adult of 20 years of age. He is fit and healthy and there is no evidence that he is suffering from any psychiatric disorder because of the experiences he has undergone. The facilities available to him in Gjakove as shown in the report, are adequate for a young adult male and there are many NGOs working in the area. He will not be left to manage on his own. It is a sad fact of the troubles in Kosovo that many young men find themselves in the position of the Appellant but there is no reason why he should not be able to resume an ordinary life there. Considering all these factors, I conclude that the decision to return is proportionate to the legitimate aim to be achieved."

19. When the Adjudicator referred to the sad fact of the troubles that many young men found themselves in the position of the appellant, he cannot have been considering the exact circumstances of this appellant. Of course there are many young men who have had to leave Kosovo because of the persecution that existed at the time they left but who could now return; and it may well be that some, perhaps many of these, have no family to return to. But unless they have established a family life here, and the circumstances of that family life here are such that mean that it would be disproportionate to return, they will not be in the same situation. It is the nature of the family life here which may be of some importance and the circumstances under which that family life came into existence. Certainly, the way that the Adjudicator puts it is in my view far too broad.

20. Leave to appeal was sought from the Tribunal and was refused in these terms, so far as material:

"The Adjudicator had the benefit of hearing evidence from the claimant. His Counsel at the hearing made it clear that the claimant was abandoning his asylum claim. He come [sic] from Kosovo. The Adjudicator found that the claimant had established a family life with his uncle, aunt and cousin in the United Kingdom. In applying the principles as set out in Mahmood he quite properly concluded that it would not be disproportionate to return him to Kosovo. There is no error of law in the determination and no reasonable prospect that the grounds of appeal would succeed. The grounds of appeal merely amount to a disagreement with the Adjudicator's findings in relation to the human rights claim."

21. It is certainly unfortunate that there was a specific reference to there being no error of law. It is of course the fact that in the summer of 2003 the limitation to error of law was coming into force. It is also a fact that there was confusion about the correct commencement date for that inasmuch as those responsible initially produced regulations which did not make a great deal of sense and the provisions had to be changed.

22. It seems to me that it is impossible to know whether Mr Fox believed that error of law was a limitation. It is strange that he refers to it specifically. Although Mr Beard submits that one of the grounds of appeal meant that an error of law was in fact being asserted, all that was being said was that the Adjudicator was wrong. Accordingly, it is of some concern that reference was made in the decision of the Immigration Appeal Tribunal to error of law.

23. Huang has helped to this extent: it now provides the appropriate test for deciding what the Adjudicator's approach should be. Huang establishes that the Adjudicator has to consider the matter afresh for himself. He is not limited to reviewing the decision of the Secretary of State in relation to proportionality and, at a time when the right of appeal was general to the Tribunal, if there was reason to believe that the decision of the Adjudicator might be erroneous and there was a real prospect of success on an appeal and so the matter came before the Immigration Appeal Tribunal, it too would have to consider the matter for itself and decide whether the decision was or was not proportionate. It would not be limited merely to reviewing the decision of the Adjudicator.

24. The situation of course is now somewhat different inasmuch as the right to apply for a review is limited to law and, so far as my decision is concerned, I am reviewing the decision of the Immigration Appeal Tribunal, seeing whether there was any error of law disclosed by its refusal of leave to appeal.

25. What the Court of Appeal in Huang decided was that it was only if a case was exceptional that it should be decided that the need for immigration control would not trump the interference with family life which was established within Article 8(1). That really stemmed from observations of Lord Bingham in Razgar [2004] 2 AC 368. The passage starts at 374F. Lord Bingham set out five questions which had to be posed and answered where a removal was resisted in reliance on Article 8, and the last of those, which is the material one, was whether such interference was proportionate to the legitimate public end sought to be achieved. As I have said, the legitimate public aim sought to be achieved here is the maintenance of immigration control. 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 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, 228, para 25, the Immigration Appeal Tribunal 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 has no doubt 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."

26. That was approved by the Court of Appeal in Huang on the basis that a true analysis of the decision in Razgar showed that the House of Lords was unanimous in accepting that view.

27. Mr Beard has submitted that in those circumstances, and bearing in mind what was said in Huang , where the rules and any policy have set the boundaries, it is not for an adjudicator, and certainly not for this court, to extend those boundaries and regard the case as being exceptional merely because there is sympathy for the individual circumstances of the case. The decision has to be made that a line is to be drawn somewhere and, unless it can be shown that that decision is itself unreasonable -- and that is not suggested and, indeed, cannot be suggested in the circumstances of this case -- then, if a case falls outside that boundary, it should not normally be regarded as an exceptional case. He submits that that approach is supported by what Laws LJ said in Huang at paragraph 57. What he said was this:

"In these cases, the Rules have themselves struck the balance between the public interest and the private right, the search for which is inherent in the ECHR as it has been interpreted by the Strasbourg court. At least they have done so for the general run of cases. Now, where Parliament has itself struck the balance between public interest (constituted by a statutory policy) and private right (constituted by a claim of EHCR violation perpetrated by the policy), the court will accord very considerable respect to the balance so struck, and that approach is perfectly consonant with the court's own obligations under the Human Rights Act."

28. A little later, in paragraph 58, he said:

"In the present case the policy is given and the balance struck by the Rules and not by main legislation. But the balance so struck is not in our judgment entitled to less respect or deference on that account. We would emphasise the particularity with which the Rules have prescribed which classes of aliens will in the ordinary way be allowed to enter the United Kingdom and which will not."

29. Then in 59:

"It might be said that the Immigration Rules constitute for all cases the balance to be struck between private right and public interest, and this is conclusive for any judgment in an Article 8 case as to whether removal or deportation is proportionate and so justified under Article 8(2). But the Secretary of State rightly does not so contend. If that were the law, our municipal statute need do no more than confer a right of appeal to allow the immigrant to contend that on the true facts he has a good claim under the Rules. However, whatever else may be said about the relation between s.65(1) [that is the provision which then gave a right of appeal on the basis that there had been a breach of human rights] and paragraph 21(1) of Schedule 4 to the 1999 Act ..."

30. That contained the general grounds of appeal which derived from the Immigration Act 1971, enabling adjudicators to allow an appeal if the entry would have been in accordance with a Rule, or if they decided that a discretion under the Rules should have been exercised in a more favourable fashion. Paragraph 21(1) did not enable adjudicators to decide cases which were outside the Rules merely because they thought that a discretion ought to have been exercised to permit entry notwithstanding. Going back to the quotation:

"... it is surely plain that the legislature contemplated appeals on Convention grounds, including Article 8, which might succeed even though the appellant had no good claim under the Rules. The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules."

31. Thus it is plain from Huang that the scope for it being found that a removal, notwithstanding a breach of Article 8(1), is disproportionate is very small indeed. But one has of course to look at the facts of an individual case.

32. The position here boils down, as it seems to me, to this. The claimant had effectively become an orphan in the sense that his father had been killed and his mother and sister had disappeared, and apparently have still disappeared. There is no suggestion that they have been traced or are indeed traceable. He had no family in Macedonia. He had no family or relations to go to in Kosovo. The only potential family that he had were his uncle and aunt who were in this country.

33. In those circumstances, particularly as in 1999 the situation was by no means settled in Kosovo, it was decided that he should come to this country where he would be, he believed -- and with good reason -- welcomed by his aunt and uncle. He arrived here and he has since then been treated as their son. He has been a close member of their family and he has no other family. He does not have any right to remain (or, technically, right to enter because he is still claiming entry, albeit he has been here now for some five and a half years) without being in breach of the law, but the effect is that he is to be removed from the stability and from the only family he now has.

34. He would not qualify under the Rules because he is not a dependant. He is now over 18. He is not the son of the family. Equally, he would not qualify by virtue of a family policy which was originally announced in October 2003 and which was described by the Minister as a one-off exercise to allow families who had been here for at least three years to stay, and the criteria for eligibility were expressed as being that the applicant must have applied for asylum before 2nd October 2000 and had at least one dependant aged under 18, other than a spouse, in the United Kingdom on 2nd October 2000 or on 4th October 2003.

35. The applicant, or an analogous applicant in the family concession to which I have referred, would be the uncle or possibly the aunt. But they did not need to apply because they already had asylum. The claimant might possibly have been a dependant but for the definition of dependant as being a child of the applicant or of the applicant's spouse who was or is financially and emotionally dependent on 2nd October 2000. Of course, the claimant is not such a dependent because he was not the son. He was merely regarded as if he were the son, being in fact the nephew.

36. One must of course also bear in mind that to remove the claimant to Kosovo would not only interfere with his family life, which the Adjudicator had found to exist -- and which clearly did exist -- but would effectively bring it to an end. There has been a suggestion that he could keep in touch and could visit as and when he was able, it not being suggested that it would be reasonable to expect the uncle and his family to relocate to Kosovo in order to be with the claimant there. In theory that, I suppose, is possible. In reality, it is a forlorn hope, partly because it presupposes that the claimant would have the means to enable him to travel to visit for any length of time; and secondly, that an accommodating entry clearance officer would grant him the necessary clearance to enable him to do so, because the entry clearance officer would have to be persuaded that he qualified within the terms of the visit rules. It would mean that he intended to return after the period of his visit and was able to maintain himself without working during the period when he was to be a visitor to this country. Whether he would succeed in so persuading the entry clearance officer is, as it seems to me, a moot point. In any event, there is no doubt that he would be in a very unhappy situation, were he to be returned to Kosovo. That of course is not in itself determinative. There are many, undoubtedly, for whom return is a most unhappy state of affairs. But there are not, I suspect, many whose family life is such as this claimant's.

37. If one looks back and wonders whether he would have qualified at an earlier stage, one finds, first of all, that had he been a son, as opposed merely to a nephew, he would, on the face of it, have been able to gain entry as such a dependant had he applied before he reached the age of 18. Certainly it is difficult to conceive that there would have been any bar under the Rules. He certainly would have qualified. Equally, had he been a son, a dependant, as opposed to a nephew, and had the family not been granted asylum, he would have qualified to enter under the family policy. Furthermore, it was policy to allow the family of refugees who were granted that status to join them in this country and he would have qualified on that basis too as the dependent son, if he had applied to come before he reached the age of 18.

38. Mr Beard submits that it is not appropriate and not proper to look back in that way and to ask what would have happened if the situation had been somewhat different. But it seems to me that one is entitled to see whether, in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. It does in my view quite plainly fall within the spirit because, albeit only a nephew, he has no other family -- his father having been killed and his mother and sister having disappeared -- and he has been treated by his uncle as if he were indeed the son of the family and that in my judgment is certainly capable of constituting an exceptional state of affairs.

39. The Adjudicator does not in terms spell out the consequences of his findings. He does not go into the question of whether the matter was exceptional in any detail. This is not surprising because the exceptional test was not the test which the courts had decided on at the date that the Adjudicator reached his decision. I have already indicated that I have some concern at the Adjudicator's approach referring to many young men finding themselves in the position of the appellant, without a proper analysis of what was indeed the true position of this appellant and how his position and condition was perhaps rather different from that which might apply in other cases.

40. That, coupled with Mr Fox's reference to law, does create concern that the proper approach may not have been adopted in this case. I am quite satisfied that there is a real chance of success, looking at the overall facts, if the matter goes back to the Tribunal to review and reconsider the situation in this case.

41. I would only add that Mr Husain has referred to a number of cases in the European Court of Human Rights in which Article 8 has been considered in the context of removal from or refusal of entry to countries. The way in which the matter is approached is quite conveniently set out by the Court in a relatively recent decision, Sen v Netherlands (2003) 36 EHRR page 81. On page 91, in paragraph 36, the Court said this:

"36. In order to establish the scope of the obligations of the State, the Court must consider the facts of the case on the basis of the applicable principles, which have been set forth in the Gul and Ahmut judgments as follows:

(a) The extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest.

(b) As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.

(c) Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunions in its territory.

37. In its analysis, the Court takes into consideration the age of the children concerned, their situation in their country of origin and their degree of dependence on their parents. It cannot in effect consider the matter from the sole point of view of immigration, by comparing this situation with that of persons who have only established family bonds after becoming settled in their host country."

42. Those observations were in the context of an attempt by a family to have a child whom they had left in Turkey allowed to enter the Netherlands, where they had decided to set up their family life. Indeed, they had two children who were born in the Netherlands. But it is to be noted that it would be wrong in my judgment to regard what this claimant had done as a "choice" in the true sense of that word. In one sense he did choose to come here to join his family but in another -- and looking at it, I hope, more realistically -- he really had no choice if he wanted to have any family life at all. This was the only family he had left.

43. In those circumstances, this was much closer to a case where the whole family was to be joined up in this country, the parents having been granted asylum here, than merely the desire to bring another member of the family into the country, they having chosen to establish their family life in this country. Particular relevance was attached to the decision of the European Court in Jakupovic v Austria (2004) 38 EHRR 27. That involved a 16 year-old who had committed offences of burglary in Austria and so was removed to Sarajevo. The reason behind that lay in the concern to preserve public order, rather than immigration control, because he had committed offences. But the court did say:

"Very weighty reasons have to be put forward to justify the expulsion of a young person (16 years old), alone, to a country which has recently experienced a period of armed conflict with all its adverse effects on living conditions and with no evidence of close relatives living there."

44. By a bare majority of 4 to 3, the court concluded that the Austrian authorities had overstepped the margin of appreciation under Article 8, as the reasons in support of the removal were not sufficiently weighty.

45. I recognise that it is not appropriate to regard the Strasbourg decisions on their facts as being in any way precedents. Strasbourg gives guidance. The facts are material to see the basis upon which the particular guidance is given. But it is not possible to say, "This case comes close to the facts; therefore it must prevail". One looks to see whether it comes within the principle. But it must be obvious, I would have thought, that to return someone in the circumstances of a case such as this, however healthy and however able to look after himself, to Kosovo, where he has no-one, and thus break all his family ties that he has left, is something which does indeed require very weighty reasons. In my view it is arguable that those reasons do not exist in the circumstances of this case.

46. I should only add that after Moses J granted permission in March of last year, he indicated that he hoped the Secretary of State would reconsider the matter. The Secretary of State did so on 22nd April but refused to change his decision. What he said was this:

"Your client is a fit and able adult and there is no reason why he should not be able to re-establish himself back in his home country of Kosovo. He will be entitled to maintain contact with his aunt and uncle, both from Kosovo and by applying for entry clearance to visit his uncle and aunt in the United Kingdom as and when he is able and wishes to do so. Furthermore, your client entered the UK illegally and did not comply with the United Kingdom's immigrations requirements.

"In all the circumstances, given the importance public interest of the maintenance of an effective immigration control the Adjudicator and the IAT were right to conclude that any interference that may be caused your client's family life by his removal to Kosovo is both justified and proportionate."

47. I have already dealt with the suggestion that he will get entry clearance to come as a visitor. The reference to entering illegally seems to me to be something which really cannot justify any adverse decision. True, he entered illegally but he claimed asylum immediately and, had he come to a port of entry and done that, there really would have been no difference. There is no suggestion that he has failed to comply with immigration requirements while he has remained here. He has certainly not committed any offences of any sort.

48. In those circumstances, I am entirely satisfied that this is a case in which the IAT should have granted permission to appeal. There is, as I have said, a real chance of success and, accordingly, I propose to quash the decision of the IAT and to return the matter for fresh consideration to be given.

49. MR HUSAIN: My Lord, just a few points of correctional matters. First of all, my Lord, at one point in your Lordship's judgment, which referred to the claimant's aunt bringing her daughter here --

50. MR JUSTICE COLLINS: It is son, is it?

51. MR HUSAIN: It is son.

52. MR JUSTICE COLLINS: I am so sorry. I have it in my head it is daughter. It is son. I will correct it.

53. MR HUSAIN: Secondly, my Lord referred to -- I am very sorry if I am being pedantic, my Lord, but the paragraph 21 of Schedule 4 is referring to the right of appeal. Of course, that is a general ground of appeal.

54. MR JUSTICE COLLINS: I am sorry. It indicates what the Adjudicator can do.

55. MR HUSAIN: Absolutely. My Lord, I would also ask for a detailed assessment of my public funding costs.

56. MR JUSTICE COLLINS: You have the usual order in that respect. Can you resist costs?

57. MR BEARD: There is a question here in relation to certainly whether or not the lateness of bringing the claim should be attended to in the making of any order, and in particular the Secretary of State does raise the issue that in relation to delay matters, witness statements were served only three days prior to this hearing in circumstances where it was quite clear that this matter had been maintained by Moses J -- no issue had been taken by the claimant in relation to jurisdiction -- and that the idea that the claimant in the circumstances should be able to recover the costs of those sorts of endeavours is a matter that the Secretary of State questions.

58. MR JUSTICE COLLINS: What costs have you incurred in relation to the late letters and so on?

59. MR BEARD: Of course, it is marginal but there are costs attendant on these matters. It is difficult precisely to quantify. The point here is that this is a case where this court does have jurisdiction to deal with these matters and there are matters of procedure that should properly go to --

60. MR JUSTICE COLLINS: What are you resisting? You are presumably not resisting costs for having lost overall, are you? You are simply trying to nibble away at some bits of those costs, or do I misunderstand you?

61. MR BEARD: No, as I understand it, an application for costs is being made against us.

62. MR JUSTICE COLLINS: I assume so.

63. MR BEARD: That is how I understood my learned friend's application. In those circumstances, it is quite appropriate that these are matters that should be taken into account and a reduction --

64. MR JUSTICE COLLINS: What are you particularly saying should be reduced?

65. MR BEARD: Well, in relation to a case where procedure has not been followed, it may be sensible and appropriate for this court to reduce the level of costs that can be recovered by a certain percentage.

66. MR JUSTICE COLLINS: What are you relying on as not having been properly dealt with?

67. MR BEARD: My Lord, this is a matter raising both, firstly, the delay in bringing these matters. Whilst of course that goes to jurisdiction, it also goes to the manner in which these proceedings have been conducted. But in particular, the Secretary of State raises the issue of the late service of witness statement material that was clearly material, that could have been --

68. MR JUSTICE COLLINS: All that that does is to seek to provide yet further grounds for explaining the delay. It did not involve you in anything extra. There is nothing you can do to answer it. Nothing you did do to answer it.

69. MR BEARD: Those are materials that have to be considered. This is relatively minimal.

70. MR JUSTICE COLLINS: It is pretty minimal.

71. MR BEARD: Nonetheless, my Lord, in the circumstances where procedure has not properly been followed and material is being served late, it may be appropriate for the court to send out the signal.

72. MR JUSTICE COLLINS: Send out the right message. Mr Husain, I do not know.

73. MR HUSAIN: Can I just say this?

74. MR JUSTICE COLLINS: Do not worry about the delay point. There is nothing in that.

75. MR HUSAIN: As regards the further witness statements, my Lord has the point that it did not cause any additional expense. There is also the point that falls to be made that those witness statements were served in response to an amended skeleton received by those instructing me a day before the witness statement were served, and in that skeleton argument my learned friend asserted that those instructing me had been entirely casual and questioned the circumstances of the transfer of representation. It was that that was explained by the witness statements.

76. MR JUSTICE COLLINS: Yes.

77. MR HUSAIN: Otherwise, if one looks at the detailed grounds, for example, the time point taken was entirely general.

78. MR JUSTICE COLLINS: Yes. The only question is whether I deprive you of your costs of the two statements. That is all. Your costs of the two statements.

79. MR HUSAIN: We would say you ought not to in the circumstances. What has also to be placed in the balance is the way the Secretary of State has reconsidered this case. It is not the Secretary of State simply turning up as an interested party and defending his decision. He was advised to reconsider it by Moses J and did so on a wholly erroneous basis. He has been asked to reconsider it again by you, my Lord. So, in our submission, there is no warrant at all despite those costs, whatever they are.

80. MR JUSTICE COLLINS: They will not be very large.

81. MR HUSAIN: 2 per cent of these proceedings.

82. MR BEARD: The only matter, my Lord, is that it is somewhat disingenuous of my learned friend to say that he only knew about the position of the Secretary of State in relation to delay on the service of the amended skeleton. I think the amended skeleton added about four lines.

83. MR HUSAIN: That is not what I said.

84. MR JUSTICE COLLINS: He did not say that. He did not say he did not know about the delay. He said he did not know that you were saying that his solicitor had been casual.

85. MR BEARD: It was clear from the skeleton that had been previously been served when the grounds were put in that the Secretary of State did not accept the explanation that had been provided in the papers thus far. That is the only matter.

86. MR JUSTICE COLLINS: So he sought to add to it. You could have objected, I suppose, to the admissibility of the evidence.

87. MR BEARD: My Lord, the Secretary of State chose --

88. MR JUSTICE COLLINS: Nor would it have got you very far if you had.

89. MR BEARD: Of course. The Secretary of State does understand the position and therefore did not press the point, but raises it now in relation to costs.

90. MR JUSTICE COLLINS: Well, no. I do not think in the circumstances of this case it is appropriate to deprive them from having an award for costs in general terms. You can try and knock some off on taxation if you want.

91. MR BEARD: I hear you, my Lord. There is a further application. The Secretary of State would ask for permission to appeal your Lordship's decision, dealing as it does with the application of Huang , and your Lordship's analysis of how one looks at the Rules and policy and applies it to the assessment of exceptional circumstances.

92. MR JUSTICE COLLINS: I do not think I am saying anything that has not been said before and applying general principles, or principles that are now established. The case depends on its own facts. I suppose the question, you say, is a one-off case. I regard it as such. Ex tempore judgment; I do not think it is worth reporting anyway.

93. MR BEARD: I am sure a transcript will be sought.

94. MR JUSTICE COLLINS: Maybe. Too many cases are referred to and relied on.

95. MR BEARD: That is, I am sure, undoubtedly true, my Lord. Nonetheless, the Secretary of State's application is made.

96. MR JUSTICE COLLINS: If you want to, you will have to persuade the Court of Appeal.

97. MR BEARD: I am most grateful, my Lord.