The decision

Appeal Number :CC53309-2001
FJ (Proportionality - Kosovo) Kosovo CG [2002] UKIAT 03516


Heard at : Field House
Determination Promulgated
on : 17th May 2002

Dictated : 23rd May 2002


Mr H J E Latter (Chairman)
Mr A A Lloyd, JP
Mrs E Hurst, JP


The Secretary of State for the Home Department





For the Appellant: Mr R Homes, Home Office Presenting Officer
For the Respondent: Mr D Jones of Counsel, instructed by Wesley Gryk, Solicitors.

1. This is an appeal by the Secretary of State against the Determination of an Adjudicator (Mr D A Radcliffe) who allowed the Respondent’s appeal on human rights’ grounds against the decision made on 3rd September 2001 giving directions for his removal following the refusal of his claim for asylum.

2. In this Determination, the Tribunal will refer to the Respondent as the Applicant.

3. The Applicant arrived in the United Kingdom on 16th July 1998 clandestinely by lorry. He says that he got off the lorry some 50 kms. outside London. He approached a police officer immediately who told him to go to the Home Office. The following day the Applicant claimed asylum.

4. The basis of his claim is set out in his written statement which was submitted to the Home Office and supplemented by an undated statement which was in front of the Adjudicator. The Applicant was born in Peje where he lived with his family. His father ran a small newsagent business. A large proportion of the profits was extorted by the Serb authorities and part of the remainder given to political organisations such as the KLA and LDK. As a result of these donations, his father came to the attention of the authorities and his shop was raided in January 1998. In February 1998, there was a further detailed search in which the shop was ransacked. His father was attacked and when his mother intervened she was brutally beaten. In July 1998, his parents were arrested when in the process of taking food supplies by car to the KLA in a different town. He later learnt that they had been sent to prison. A friend of the Applicant’s father advised him that it would be unsafe for him to remain in Kosovo and arrangements were made for him to leave. He crossed the border by foot into Macedonia and travelled across Europe to the United Kingdom.

5. The Secretary of State refused his claim for asylum for the reasons which are set out in the reasons for refusal letter dated 21st August 2001. He also certified the claim on the basis that the circumstances which gave rise to his fear no longer existed. The Appellant appealed against this decision on both asylum and human rights’ grounds. His appeal was heard by the Adjudicator sitting at Taylor House on 11th January 2002. The Adjudicator dismissed the asylum appeal and upheld the certificate. He found on the evidence that UNMIK and KFOR were capable both in law and fact of providing a sufficiency of protection for Kosovan Albanians including the Applicant. The circumstances had changed since the Applicant’s departure and he would no longer be at risk of persecution.

6. He went on to consider the Applicant’s claim under Article 8 of the Human Rights Convention. He was satisfied that the Applicant had acquired a family life in the United Kingdom with his three cousins and that there would be an interference with this right were he to be removed to Kosovo. The Adjudicator had heard evidence from the Applicant and from a cousin, Bleda Jashari. His cousin Bleda is his paternal uncle’s son and his cousins, Valjon and Hekuran, are his maternal aunt’s sons. He made contact with these cousins after arriving in London. He does not live with them but he sees them almost every day. It is evidence that these cousins were now his family.

7. There is further detail about his cousins in paragraph 12 of the witness statement before the Adjudicator. Valjon was recognised as a refugee on 12th June 1999 and granted indefinite leave. Hekuran’s appeal against the refusal of asylum was allowed by an Adjudicator on Article 8 grounds. The other cousin is still awaiting the outcome of his claim. In the statement, the Applicant says that he has now been living in the United Kingdom for more than three years. When he first came, he could not speak English but his English was now of quite a high standard. He was working as a receptionist at a hotel in Holborn. He had been trying to pursue his studies and develop closer ties with this country. He had attended various courses. He was only in contact with his three cousins in this country. He had not been in contact with his parents. He did not have any definite word about their fate. He had heard news in May 1999 that his mother was a refugee in Macedonia but it seems that since then he has heard no further news.

8. The Adjudicator went on to consider whether the Applicant’s removal would be proportionate to a legitimate aim. He commented in paragraph 9.3 of his Determination that there was no evidence that the Applicant posed a threat to law and order. He was settling in well, was paying his rent, attending college and had good character references. He had met a young Spanish woman who worked at the same hotel and had formed a relationship with her. Taking all these factors into account, the Adjudicator came to the view, as he put it, that a removal to Kosovo now would be disproportionate enough to put the United Kingdom in breach of Article 8.

9. The Secretary of State has been granted leave to appeal against this Determination. The grounds assert that the Adjudicator was unreasonable to allow the appeal under Article 8 and had misinterpreted “legitimate aims” by understating the importance of immigration control when assessing whether or not the Applicant’s removal would be disproportionate. When assessing the breach of Article 8, the Adjudicator had not taken into account the Tribunal Determination in Kacaj (01/TH/0634)* where it stated that it would be virtually impossible for an applicant to establish that control on immigration was disproportionate to any breach.

10. Mr Holmes submitted that the Adjudicator had adopted a flawed approach to his assessment of the appeal under Article 8. He was wrong to have decided that there was family or private life between the Applicant and his three cousins. He had not adequately examined the basis of the cousins’ stay in the United Kingdom. It was one thing for an Article 8 claim to be allowed on the basis of the relationship between brothers but another where it was between cousins. So far as proportionality was concerned, the Adjudicator had not properly weighed all the relevant factors. He had failed to give adequate weight for the need for effective immigration control by the removal of those who fail to meet the requirements of the Immigration Rules.

11. Mr Jones submitted that the Adjudicator had appreciated all the relevant factors. It was for him to balance the conflicting considerations. The issue of proportionality was essentially one of fact and the Tribunal should exercise caution before interfering with an Adjudicator’s Determination. He referred to Borissov v Secretary of State [1996] Imm AR 245. He submitted that the Adjudicator’s findings were sustainable and should be upheld. It could not be argued that he had reached a decision not properly open to him on the facts. It was for him to take into account the Applicant’s age and family circumstances, and to balance these against the need for effective immigration control. His decision was within the range of reasonable decisions open to an Adjudicator.

12. The grounds of appeal are limited to the issue of proportionality, as indeed Mr Holmes accepted. There is no appeal against the finding that there would be an interference with the Applicant’s family or private life were he to be removed. The sole issue for the Tribunal to consider is the issue of proportionality arising under Article 8(2). This provides that there should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. There is no doubt that the interference would be in accordance with the law. The issue is whether it is necessary in a democratic society for the prevention of disorder or crime. The Adjudicator commented that there was no evidence that the Applicant posed a threat to law and order. The Secretary of State has never suggested that he does, in the sense of being someone who is likely to go out and commit criminal offences; however, the prevention of disorder imports the idea of preventing disorder in society by a failure to maintain effective immigration control. Mr Holmes directs the Tribunal to Kacaj where the Tribunal expressed the view that it would be virtually impossible for an applicant to establish that control on immigration was disproportionate to any breach. That comment must be read in the context and, of course, the Tribunal could never have intended that Article 8 should be construed so strictly that the importance of immigration control imported an almost insuperable obstacle to a claim succeeding.

13. Each claim must be looked at on its own facts and circumstances. Proportionality is essentially a question of fact involving a balancing of the conflicting requirements of the appropriate legitimate aim with the personal compassionate circumstances of each applicant.

14. The Tribunal has taken into account the fact that the Applicant was 16 when he arrived in the United Kingdom. He claimed asylum in July 1998 but did not receive a decision until August 2001. He is now 20. The Adjudicator clearly believed the account he gave of his experiences in Kosovo. He does not know the whereabouts of his parents or his sister. His family ties are now with his cousins in the United Kingdom. We have been referred to the Determination of Mr C J Deaven who allowed Hekuran’s appeal on the basis of his relationship with his brother, Valjon. Taking these factors into account and bearing in mind that the onus lies on the Secretary of State to justify the interference with family life, the Tribunal has come to the view that the Adjudicator reached a decision which was properly open to him on the evidence. The Tribunal accepts Mr Jones’ submission that the Tribunal should not interfere with an Adjudicator’s assessment of proportionality unless it can be shown there is an error of law or his assessment is wrong or unsustainable on the basis of the evidence before him. It is not enough to show that the Tribunal might have reached a different result on the same evidence from the result in fact reached by the Adjudicator. It must be shown that the Adjudicator reached a result which was not properly open to him on the evidence.

15. In our view, the Adjudicator did take account of the importance of immigration control. He was referred to Kacaj which he has cited in paragraph 6.3 of his Determination together with Nhundu and Chiwera (01/TH/00613), Marckz v Belgium [1979] 2 EHRR 330 and Boyle [1994] 19 EHRR 179. In our view, it cannot be shown that the Adjudicator has left any material consideration out of account when reaching his Determination nor that he has reached a decision which is unreasonable or otherwise not properly open to him on the evidence.

16. In these circumstances, the Secretary of State's appeal is dismissed.