The decision

Heard at Field House

APPEAL NO HX2954-2001
On 8 April 2002

EL (Ex-minor – ELR - Return) Kosovo CG [2002] UKIAT 02345


Date Determination notified:

............4 July 2002........................


Professor D B Casson Chairman)
Mr C H Bennett
Mr M S W Hoyle








1. The appellant, an ethnic Albanian citizen of Federal Republic of Yugoslavia from Kosovo, appeals with leave of the Tribunal (Mr AR Mackey, Vice President) against the determination of an Adjudicator (Mrs I A M Murray) dismissing his appeal on asylum and human rights grounds against the decision of the respondent on 14 March 2001 to refuse to grant asylum. Before us the appellant was represented by Mr M Quayum of Camden Community Law Centre. The respondent was represented by Mr M Blundell.

2. The appellant was born on 28 September 1983. At the date of decision he was under 18 years old. The notice refusing to grant asylum states:

"It has been decided, however, that because of the particular circumstances of your case, you should be granted exceptional leave to remain in the United Kingdom. The Secretary of State therefore grants you leave to remain until 28/09/2001."

3. The appeal to the Adjudicator accordingly lay under Section 69(3) of the Immigration and Asylum Act 1999. In dealing with the question of the grant of exceptional leave, the Adjudicator said at paragraph 18 of the determination:

"The appellant has been granted ELR until his 18th birthday. I have read the objective evidence regarding this and I note that it does refer to four years ELR, however, I have adjudicated in quite a number of cases like this one where a young appellant has been granted ELR until his 18th birthday and this does appear to be a reasonably standard policy of the Home Office. The reason that this appellant was granted ELR at all was because of his age. The appellant is now going to be an adult on return to Kosovo. I have carefully read all of the objective evidence on returning young people to Kosovo and, indeed, returning young people anywhere from the United Kingdom. The appellant will not be under 18 when he is returned and there is a big regeneration programme going on in Kosovo… I do consider that there is sufficiency of protection in Kosovo even for somebody young like the appellant because of the presence of KFOR and UNMIK."

4. In granting leave to appeal Mr Mackey said that the grounds:

"Also raise the issue of failure to give reasons in respect of ELR granted to this applicant who was a minor when he arrived in the United Kingdom. The asylum and human rights points raised in the grounds of appeal do not appear to be the basis of an arguable appeal. However, the Home Office policy point in relation to ELR may be arguable. Leave is granted on this ground only."

5. We invited Mr Quayum to indicate on what basis we could allow the appeal. Mr Quayum suggested that we could do so on the basis that the respondent had departed from his published policy and so his decision was not in accordance with the law. Mr Quayum submitted that if the respondent does not grant 4 years exceptional leave to remain to an individual he must give reasons for his decision. Mr Quayum agreed that he was unable to produce any published policy about exceptional leave to remain and minors.

6. We are unanimously of opinion that there is no basis upon which this appeal can succeed. In our judgement the question of whether, and if so for how long, to grant exceptional leave to remain to any asylum claimant is entirely a matter for the Secretary of State. In this case he decided to grant the appellant, who was then a minor, exceptional leave to remain until he attained his majority at the age of 18 years. Mr Quayum has been unable to put before us any published policy which would suggest that this was a departure from normal practice. Indeed, our own experience accords with that of the Adjudicator. We are quite clear that the respondent was acting in accordance with the law when he decided to grant this appellant exceptional leave to remain until his 18th birthday.

7. The appeal is dismissed.

D B Casson
Acting Vice President