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ASYLUM AND IMMIGRATION TRIBUNAL	

  GS (Article 8 – public interest not a fixity) Serbia and Montenegro
  [2005] UKAIT 00121

THE IMMIGRATION ACTS

Heard at: Field House
On 10 May 2005	Determination Promulgated 

………09/08/2005………………………………	

	
	
Before	

Dr H H Storey (Senior Immigration Judge)
Dr J O De Barros
Mrs M Padfield JP
	
Between	

	
Appellant	
and	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
			
		Respondent 	

Representation:
For the appellant:  Mr S Muquit of Counsel instructed by Aston Clark Solicitors 
For the respondent: Mr L Parker, Home Office Presenting Officer 

DETERMINATION AND REASONS

1.	The appellant is a national of Serbia and Montenegro. The respondent decided on 18 February  2004 to refuse his application for further leave to remain and to give directions for his removal. His appeal against that decision was heard by an Adjudicator, Mr D.E. Collyer who in a determination  notified on 20 May 2004 allowed the appeal on Article 8 grounds. The respondent then appealed against that decision to the Tribunal.  By virtue of Article 5 of the  Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the appeal now comes before us as a reconsideration.

2.	The grounds of appeal brought by the Secretary of State were threefold. The first two alleged that the Adjudicator had failed to pay due deference to the decision  of the respondent. Mr Parker conceded that these two grounds have now fallen away in the light of the recent Court of Appeal judgment in Huang [2005] EWCA Civ 105.   Despite accepting that it was unlikely that the appeal would have been pursued had it been known what Huang was to establish, Mr Parker confirmed that he wished to pursue the appeal on the  third ground (set out in paragraphs 3 and 4). This contended that the Adjudicator had been wrong in finding the appellant's case to be exceptional.

3.	We have some reservations whether ground 3 was entirely free-standing; it appears to further develop the due deference/review points arising under the first two grounds.  Paragraph 4 reads:

“It is submitted that this is not an exceptional case in which the Adjudicator has been correct in finding the decision was outside the range of reasonable responses open to the Secretary of State...”

4.	However, we are prepared to consider it as freestanding since if the Adjudicator was indeed wrong to regard the cases as exceptional, then it follows from the principles set out by the House of Lords in Razgar that he had perpetrated a material error of law.

5.	The grounds contend that the reasons given by the Adjudicator for allowing the appeal did not demonstrate that the case was an exceptional one:

“His reasons were the length of time the appellant had been in the UK, in this case 5 years, his positive contribution since he had been in the UK and that he has no family or social ties, education, employment and housing if he was returned to Kosovo.”

6.	This is not a promising start for a ground of appeal since it plainly fails to identify all of the reasons given by the Adjudicator. In particular the Adjudicator placed considerable emphasis on two additional quite separate factors.

7.	Firstly there was the fact that when the appellant arrived in the UK in April 1999 as an orphaned unaccompanied minor from Kosovo, he had legitimate reasons for coming to the UK.  Both this Adjudicator and the Adjudicator who had dealt previously with  his asylum appeal had accepted that the appellant had genuine asylum-related reasons for leaving Kosovo when he did.

8.	Furthermore, there was the factor of delay.  It was accepted that it was not until 16 March 2001 that the respondent had made a decision on the asylum application the appellant made in April 1999.  The Adjudicator earlier found that “Any delay in decision making ... are not caused by the appellant or his representatives”.  And at paragraph 37 he stated: “I find that the fact that the appellant was in the United Kingdom legitimately and that his earlier claims were subject to delay that were not his cause is a further positive factor when assessing the proportionality of the respondent's decision”.   We also note that, even though the appellant had only been granted six months exceptional leave to remain until September 2001, his subsequent in time application for further leave to remain made on 10 August 2001 had not been the subject of decision until 18 February 2004, a date well past the time when he turned 18 (5 September 2001).

9.	Before leaving the issue of delay, we should clarify that the Adjudicator here treated it as a relevant factor only and going to the effect that it had on the appellant becoming as a result an “integrated alien within the United Kingdom with few if any remaining ties to his country of origin” (paragraph 45).  Had he sought to treat it as decisive or as a factor on its own he would have been in plain error as is clear from leading decisions of the Tribunal and the courts. The proper approach is summarised in MB (Huang-proportionality-Bulletins) (Croatia) [2005] UKIAT 00092 at paragraph 28.  The President, Ouseley, J stated:

“It is very difficult to envisage a case in which the removal of someone who has no claim to enter and no claim for international protection would be disproportionate merely  because of a delay in decision-making, which had had no disadvantage as in Shala or which had not led to the creation of circumstances which themselves made removal disproportionate. It is the effects of delay to which an Adjudicator should look rather than to the fact or extent of delay itself. Delay by itself would be no such rarely determinative as rarely ever significant.”

10.	What we have to decide in this case is not whether we consider the decision was proportionate or disproportionate but solely whether the decision was one which was not reasonably open to the Adjudicator: CA [2004] EWCA Civ 1165.  We have to bear in mind the principles set out by the House of Lords in Razgar [2004] 2 AC 368, in particular the statement of Lord Bingham at 374F: “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”.  Our start-point must be, to use the  words given in a recent case   chaired by the former IAT  President, Mr Justice Ouseley “... it needs to be remembered that the very strict boundaries, laid down in  Razgar and reflected in Huang, mean that the range of circumstances within which an Adjudicator, without error of law can find that a Secretary of State removal decision is within the  Rules but unlawful because of Article 8, is narrow indeed”.  (CW (Deportation – Huang – proportionality) Jamaica [2005]  UKIAT 00110).

11.	Mr Parker has contended that the Adjudicator failed to identify reasons for regarding the appellant's circumstances as truly exceptional. However, particularly bearing in mind as we have already explained that the Adjudicator's reasons were more extensive than represented in the grounds of appeal, we think the Adjudicator did identify adequate reasons for arriving at the decision he did. It may be that simply focusing on the appellant’s interests in not wishing to return to a country where he  no longer had any family ties and in wishing rather to stay in the UK – in order to maintain his private life relationships with his foster parents and other circles of friends and acquaintances – the grounds are correct to say that these were not exceptional. Albeit the appellant had been orphaned at a very young stage and had lost contact with relatives, it was not argued that he would be unable for physical or mental reasons to cope with life back in Kosovo. His length of stay in the UK was only five years. Eloquent as they were, the tributes  paid to his personal and academic achievements by tutors, employers and guardians only established a positive contribution to British society over a relatively  short period.   However, firstly a balancing exercise must always involve looking at both sides of the scale:  looking at the public interest as well as the appellant's interests. Secondly, it must be borne in mind that on both side of the  scales to be considered in any individual case there will be some variation in the relevant factors and circumstances.  Certainly the Immigration Rules reflect the fact that the interests of the Secretary of State in the maintenance of immigration control are weighty in the general run of cases, but neither Razgar nor Huang are authority for the proposition that the public interest is a fixity or that there is a fixed weight to be accorded to the interests of the state in the effective maintenance of immigration control. As Laws LJ noted in Huang and paragraph 57:

“In these cases, the Rules have themselves struck the balances 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” (emphasis added).

12.	In our view it is common sense that the extent of the public interest may vary in cases which fall outside the normal or the “general run”. Depending on the particular circumstances of a case it may be a relevant factor that the state has seen an individual to fall within a particular category of persons deserving of a grant of limited leave on exceptional grounds or for reasons of extra-statutory policy.   Considering appeals on a “case by case” basis, as Razgar enjoins, would be meaningless if, irrespective of particular facts relating  to the past approach of the Secretary of State to a case, the interests of a state in the effective maintenance of immigration control were unfailingly a “trump card” because it always had a fixed weight.

13.	We are fortified in the view we have taken by the reasoning given by the Court of Appeal in its recent judgment in the case of Akaeke [2005] EWCA Civ 947 in which Carnwath, LJ expressly rejected the Secretary of State's counsel Mr Robb’s contention that the importance of maintaining immigration control was to be taken as a  “fixed factor” (paragraph 15).   Addressing the question of what meaning was to be given to Laws LJ’s statement in Huang that the Adjudicator was not required to address “the  relative importance of the public policy and the individual rights”  Carnwath, LJ stated:

“He was not saying, as I understand it, that the public side of the balance is immutable.  If there are factors which in the special circumstances of a particular case, reduce the significance of the public policy considerations underlying immigration control in general, there is nothing in Huang, or in Article 8 itself, which requires them to be excluded.”

14.	As already noted this was not a case where it could be said the appellant  had come to the UK without valid reasons. Nor was it a case where the appellant had stayed unlawfully or illegally. Furthermore, given that he was an orphaned unaccompanied minor aged 15 when he came, it could not easily be said he should have understood he had no secure basis for remaining. By virtue of the original grant of  ELR and the delay in failing to make a prompt decision first on his asylum application and then on his application for further exceptional leave to remain, the respondent acquiesced in the appellant, at a particularly vulnerable and formative period of his life, developing close ties with foster parents which he has maintained.  The effect of delay in his  case was to encourage him to integrate with the wider community.

15.	In our view, the Adjudicator's assessment that the appellant's particular circumstances were exceptional was one which was reasonably open to him on the evidence.

16.	Accordingly, we are satisfied that the  determination of the Adjudicator did not contain a material error of law and as a result his decision to allow the appeal must  stand.

DR H H STOREY
SENIOR IMMIGRATION JUDGE