Immigration


Asylum seekers - delay - immigration policy - leave to remain - removal - right to respect for private and family life - delay by secretary of state in handling original claims - relevant factors in considering impact of delay

(1) HB (Ethiopia) (2) FI (Nigeria) (3) EB (Kosovo) (4) JL (Sierra Leone) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Buxton, Latham, Longmore): 14 December 2006

In four test cases, the court was required to clarify the law on the effect of delay by the respondent secretary of state on claims by the appellants that relied on article 8 of the European Convention on Human Rights (right to respect for private and family life) to resist removal from the UK.



The appellants all claimed that, although they had no right to remain in the UK, to remove them would amount to an interference with their rights under article 8(1), and the delay in dealing with their cases deprived the secretary of state of the ability to assert that their removal was justified under article 8(2). The first three appellants originally had a claim to asylum or some other form of relief. Had the secretary of state dealt with those claims within a reasonable time, it was assumed that exceptional leave to remain in the UK would have been granted to each. However, while their applications were pending, conditions in their home countries improved to the extent that they could safely be returned there. The appellants claimed that the delay in handling their original claims should be taken into account in their applications under article 8.



Held, firstly, a claimant had to show that he satisfied the requirement of article 8(1) that he had an established family life or private life in the UK. If he were unable to do that, article 8(2) did not arise and any issues of delay were irrelevant.



Delay in dealing with an application might, by increasing the time spent by a claimant in the UK, increase his ability to demonstrate private or family life, bringing him within article 8(1). However, whether a claimant satisfied the requirement of article 8(1) was a question of fact.



Decisions taken pursuant to the lawful operation of immigration policy would be proportionate in all but a small minority of exceptional cases (R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, [2006] QB 1 applied).



Where delay was relied on as a reason for not applying immigration policy, a distinction had to be made between claimants who had some potential right under immigration policy to be in the UK, and those who had none. In the former case, where it was sought to apply burdensome procedural rules to the consideration of a claimant's case, it may be inequitable in some situations to enforce those procedural rules (Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, and Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947 (2005), The Times, 23 September applied).



In the case of a claimant who had no potential right to be in the UK, and who had to rely on his rights under article 8(1), a delay in dealing with a previous asylum claim would be a relevant factor under article 8(2), but for it to influence the outcome it would have to have substantial effects (Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848 applied). The fact that delay had caused a claimant with no potential rights under immigration law to miss the benefit of a hypothetical hearing of an asylum claim that would have resulted in him obtaining exceptional leave to remain did not, in itself, affect the determination of a subsequent claim based on article 8(2). It was not clear that the court in Strbac thought that the failure to obtain exceptional leave to remain on asylum grounds because of delay could ever be relevant to a decision on the substance of a subsequent article 8(2) claim, as opposed to the procedure.



It would usually only be in cases when the secretary of state sought to rely on the particular system itself that arguments based on the breakdown of immigration control or of failure to apply the immigration system properly would be relevant. Those arguments did not follow where an appeal was made in article 8 proceedings to earlier failures in operating the immigration system.



All four appeals were dismissed on grounds other than the delay issue.



Appeals dismissed.



Richard Drabble QC, Louise Hooper, Duran Seddon, Patrick Lewis (instructed by Dare Emmanuel, Refugee Legal Centre, Immigration Advisory Service Solicitors Unit) for the appellants; Philip Sales QC, Parishil Patel (instructed by the Treasury Solicitor), for the respondent.