Asylum seekers - Delay - Immigration policy - Leave to remain - Proportionality

EB (Kosovo) v Secretary of State for the Home Department (2008): HL (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood): 25 June 2008

The appellant asylum seeker (E) appealed against a decision ((2006) EWCA Civ 1713, (2007) Imm AR 396) upholding a decision of the respondent secretary of state to remove him from the UK.

E, a Kosovar, and his cousin had arrived in the UK as unaccompanied minors and claimed asylum. E lived with his uncle. The UK policy at the time was that such minors would be granted exceptional leave to remain in the UK for four years with the prospect of obtaining indefinite leave to remain. E submitted a form giving his reasons for his claim but his ­application was refused, allegedly for non-compliance with the process. About two years later, and at least nine months after his cousin’s claim had been dealt with, the secretary of state acknowledged that an incorrect refusal had been issued and withdrew the non-compliance decision. After a further delay of 18 months, which resulted in a total delay of more than four and a half years, and after E ceased to be an unaccompanied minor, E’s claim was rejected and he was informed of the decision to remove him. Conditions in Kosovo ­having improved, E no longer had a ground for claiming asylum.

In the meantime, E had begun a relationship with a girl who was pregnant by another man, who had abandoned her. She had exceptional leave to remain and the prospect of indefinite leave. She later gave birth to the child and became pregnant again. An adjudicator, who considered that E had a family life with his uncle and girlfriend, dismissed E’s appeal against the removal on ­asylum and human rights grounds. A further appeal to the Asylum and Immigration Tribunal (AIT) based on article 8 of the European Convention on Human Rights 1950 was also ­dismissed. The Court of Appeal was prepared to assume that, had an ­earlier decision been made by the ­secretary of state, it would probably have been favourable to E, but ­considered that the issue of delay in handling E’s claim had not been addressed by the AIT, mainly because it had never been properly put to it. The court, which did not remit the matter to the AIT, held that there was a more fundamental reason why the appeal had to fail, namely that, as held by the adjudicator and upheld by the AIT, on the facts, removal of E would not interfere with his family life.

Held: (1) The adjudicator had not accurately or adequately addressed the human rights problem raised by E and the judgment of the AIT did nothing to make good that deficiency.

(2) Delay in the decision-making process may be relevant in any one of three ways. First, the asylum seeker may, during the period of any delay, develop closer personal and social ties and establish deeper roots in the ­community than he could have shown earlier. The longer the period of the delay, the likelier this was to be true. To the extent that it was true, a claim under article 8 would necessarily be strengthened. The second way was less obvious. An immigrant without leave to enter or remain was in a precarious situation, liable to be removed at any time. A relationship so entered into may well be imbued with a sense of impermanence, but if months passed without a decision to remove being made, and months became years, it was to be expected that that sense of impermanence would fade and the expectation would grow that if the authorities had ­intended to remove the applicant they would have taken steps to do so. Third, when considering the proportionality of removal, delay may be relevant in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control if the delay was shown to be the result of a dysfunctional system that yielded unpredictable, inconsistent and unfair outcomes, Akaeke v Secretary of State for the Home Department (2005) EWCA Civ 947, (2005) Imm AR 701 applied. In the instant case, E’s cousin, whose position had not been materially different, had been granted exceptional leave to remain. Plainly the secretary of state’s delay in resolving E’s claim was relevant in the first way considered. The AIT had to consider whether, and to what extent, the delay in resolving the claim and the manner of its handling were relevant when ­considering the overall proportionality of ordering the removal of E. That required a judgment in the round, Strbac v Secretary of State for the Home Department (2005) EWCA Civ 848, (2005) Imm AR 504 considered. Such a judgment had not yet been made and it should be made. The ­matter was remitted for a fresh hearing by the AIT.

(3) (Per Lord Brown) Delay was not relevant in reducing the weight to be accorded to the requirements of fair and firm immigration control.

(4) (Per Lord Scott) E’s complaint was not simply of delay. In the circumstances, it was grossly unfair for E to be deprived of the benefit of the policy that had been applied to his cousin and would have been applied to him had his application been properly dealt with. The case should not be remitted.

Appeal allowed.

Richard Drabble QC, Duran Seddon (instructed by the Immigration Advisory Service) for the appellants; Philip Sales QC, Parishil Patel (instructed by Treasury Solicitors) for the respondents.