Tribunal decisions

The decision

APPEAL No. HX/04223/02
EC (Queue Jumping-Marriage- Apply from Kosovo) Kosovo CG [2002] UKIAT 06673

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 November 2002
Date Determination notified:
20th February 2003

Before:

Mr. P. R. Moulden (Chairman)
Mr D. R. Bremmer
Mrs S. I. Hewitt

Between

EDUART COTA
Appellant
and

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

1. The Appellant is a citizen of the Federal Republic of Yugoslavia and an ethnic Albanian from Kosovo. He has been given leave to appeal the determination of an Adjudicator (Mr Peter Clarke) dismissing his appeal against the Respondent's decision to give directions for his removal from the United Kingdom and to refuse asylum.

2. Mrs R. Manning, of Counsel instructed by Alsters, Solicitors, appeared for the Appellant. Miss G. Walker, a Home Office Presenting Officer, represented the Respondent. The hearing was conducted by video link.

3. The Appellant arrived in the United Kingdom on 1 September 1999 and applied for asylum the same day. The notice containing the decision against which he appeals is dated 5 April 2001. The appeal was heard by an Adjudicator but an appeal against his determination was allowed and following remittal the appeal came before Mr Clarke. This hearing took place on 16 July 2002 and leave to appeal was granted on 19 September 2002.

4. Procedurally this appeal has had a chequered history. It is not now necessary to rehearse the detail because the present position is clear and accepted by the representatives for both parties. The effective date of the Respondent's decision is important. It is 6 June 2001. Whilst the decision is dated 5 April 2001 it is common ground that it was served on the Appellant on 6 June 2001. The appeal against the decision is likely to have been out of time but the Respondent takes no point on this and accepts there is a valid appeal. This is a proper approach in the light of the convoluted history, which may well have confused the Appellant and those representing him. As the decision was taken after the Human Rights Act came into force the Appellant can and has appealed on human rights grounds.

5. The Appellant claimed to fear persecution from, on the one hand, the Serbs and the Serbian authorities and on the other, the KLA. The Adjudicator concluded that, had it been necessary for him to do so, he would have found the Appellant's account of these events to be credible, but it was not necessary. In the light of the country information the Appellant no longer has a well-founded fear of persecution for a Convention reason. There is no appeal against this part of the determination and the appeal turns on human rights grounds under Articles 3 and 8.

6. The Adjudicator made clear findings of fact in paragraph 17 of his determination, which we adopt. These are;

i. "The Appellant met Amanda Jane Plant ("Amanda"), at a club in Coventry in May 2000.

ii. They quickly established a relationship, and were soon sleeping together.

iii. In late August 2000, the Appellant moved in with Amanda.

iv. In September 2000 the Appellant and Amanda decided to become engaged.

v. On 31 December 2000/1 January 2001 the Appellant and Amanda became engaged.

vi. On 24 February 2002 the couple were married at Chilvers Coton church.

vii. From early May 2001, the couple tried to start a family, and by late June 2001, Amanda was pregnant, although the pregnancy came to an end in about July 2001. The reason that Amanda could not attempt to become pregnant earlier was that she was attending a day clinic for a coloscopy, but she was given the "all clear" at the beginning of May 2001.

viii. Amanda again became pregnant in October/November 2001, and their daughter, Elisa Catherine, was born on 4 July 2002.

ix. The couple lived together a 69 Bermuda Village, Uneaton, which is a three bedroom house and which was previously occupied by Amanda

x. Amanda works as a sales coordinator for Lynx Express Management Services Ltd, although she is on maternity leave at present. Her basic gross salary, before commission is £12,750 per annum; and her net income has been about £800 - £1000 per month, depending on commission. She intends to return to work as soon as possible.

xi. Once Amanda has returned to work, the Appellant will look after Elisa Catherine, thus obviating the need for paid child minding.

xii. If the Appellant were returned to Kosovo, and Amanda and Elisa Catherine did not go with him, it would be very difficult for Amanda to afford childcare; both her parents are working, and therefore would not be able substantially to assist."

7. The Adjudicator found that in relation to Article 8 and by reason of Section 77 (4) of the 1999 Act he had to consider the facts as at 5 April 2001. On those facts he concluded that the Appellant did not succeed under Article 8. However, he went on to set out the facts and assess the consequences as at January 2002 because, and perhaps understandably, there was some suggestion that the effective date of the Respondent's decision might in fact have been in January 2002. He concluded that if this had been the effective date the Appellant would succeed under Article 8 and he would have allowed the appeal.

8. It now transpires that the correct date is not either of the dates considered by the Adjudicator but, for the reasons we have already set out, 6 June 2001. At first sight this may be a materially different date from 5 April 2001 because, as the Adjudicator found, from early May 2001, the couple tried to start a family.

9. The representatives have not suggested that it is necessary for us to remit to the same or a different Adjudicator. The Adjudicator has made clear findings of fact. There is no dispute about these and in the circumstances there is no reason why we should not determine this appeal on its merits.

10. In relation to Article 3 and as a result of the provisions of Section 77 (3) of the 1999 Act we may take into account any evidence which we consider to be relevant to the appeal, including evidence about matters arising after the date on which the decision appealed against was taken. On all the current facts he has not established that to return him would infringe his human rights under Article 3.

11. In relation to Article 8 we must consider the position at the date of the Respondent's decision on 6 June 2001. Section 77 (4) of the 1999 Act so provides, with one concession. It states,

"In considering any other ground, the appellate authority may take into account any evidence (a) which was available to the Secretary of State at the time when the decision appealed against was taken; or (b) which relates to relevant facts as at that date".

12. We need to consider the effect of the proviso. In Krasniqi [2002] UKIAT 00231 the President said,

"These provisions are clear. The ground in issue in this case is that the decision violates Article 8. The decision was made in January 2001. Section 65 makes it clear that the appeal is against the decision, which states that removal directions have been given for removal at a time and date to be notified. Accordingly, it is necessary to have regard only to the situation in January 2001. There is no way in which the provisions can be construed to enable the situation at the date of the hearing of the appeal to be considered and we cannot rewrite the Act simply because the result is unsatisfactory".

13. The President went on to approve Nhundu and Chiwera (01/TH/00613), with the exception of paragraph 69. Paragraph 70 of Nhundu and Chiwera states,

"However the exclusionary intent of Section 77 (4) is clearly not absolute. Two exceptions are made. That contained in sub paragraph 4 (a) does not arise in this case. The exception contained in subparagraph 4 (b), however, is in broad terms. The wording enables account to be taken of evidence about matters arising after the date of decision so long as it "relates to relevant facts as at the date". Whilst these words plainly exclude post decision evidence that is extraneous to the issues at stake in the appeal, it does appear to us to include facts that cast light back upon the situation as at the date of decision. Thus, for example, in a marriage case in which there was an issue concerning intention of the parties to live together permanently, the fact that since marriage a couple had lived together would be evidence relating to relevant facts at the date of decision. Read thus, the provision accurately reflected pre-existing case law on post decision facts in immigration cases."

14. Paying due heed to the judgment of the Court of Appeal in Saad Diriye and Osorio, we consider that the provisions of section 77 (4) (b) should be interpreted in a way in which, as closely as possible and permissable, enables the IAA to take into account the facts at the date of the hearing. The subsection does not, for example, limit consideration to relevant facts at the date of the Respondent's decision (whether or not these were available to the Respondent). It does not limit consideration to contemporaneous evidence of relevant facts. It admits any evidence, which relates to relevant facts at the date of the Respondent's decision (our emphasis). "Any evidence" is widely drawn. There is no restriction, which states or implies that "any evidence" is excluded if it demonstrates that the relevant facts at the date of the Respondent's decision have changed. It would require a strained and improbable interpretation to conclude that "any evidence" could only be accepted if it showed that the relevant facts at the date of the Respondent's decision had not changed. The plain and natural interpretation of subsection (b) is that if there is a fact which was relevant and considered or would have been relevant had it been considered at the date of the Respondent's decision then evidence may be taken into account which shows that it is still a fact or, if not, how and to what extent it has changed. This was more elegantly expressed by the Tribunal in the passage in Nhundu and Chiwera to which we have already referred; "Whilst these words plainly exclude post decision evidence that is extraneous to the issues at stake in the appeal, it does appear to us to include facts that cast light back upon the situation as at the date of decision."

15. We are unable to find any material element of the Appellant's claim which was not a relevant fact at the date of the Respondent's decision. There have been material changes in those facts since then but no "new" facts. Before the date of the decision the Appellant and Amanda had met, moved in together, become engaged and tried to start a family. All these were relevant facts at the date of decision. The subsequent marriage, pregnancy and the birth of their child can be taken into account because they relate to relevant facts at the date of the decision.

16. In these circumstances the factual matrix is not very different from that which led the Adjudicator to say that he would have allowed the appeal under Article 8.

17. However, we did not agree with his conclusions. The Appellant himself has not said that his wife or child would suffer in a way which would infringe any of their Article 3 or 8 rights. He said, as recorded in paragraph 18 (i) of the determination "I do not think she would be treated nicely". The Adjudicator does not appear to have had any stronger evidence of the difficulties which might face a Muslim Albanian Kosovan and with a Christian British wife and their child.

18. The other reasons given by the Adjudicator for what appear to be his conclusions that there are insurmountable obstacles to the Appellant returning to Kosovo with his wife and child are set out in paragraph 18 and relate to medical facilities in Kosovo, particularly for the Appellant’s child. We cannot find any evidence that the Appellant, his wife, or child, suffer from any illness which requires or may in future require medical treatment. The Adjudicator's findings appear to turn on the quality of medical services which the couple and their child may require at some time in the future. The CIPU report of April 2002, to which he refers in paragraph 18, indicates that "the health services are capable of providing satisfactory primary care and are improving".

19. The Appellant's wife may not wish to go to Kosovo with her husband and child but, on all the evidence, there is no insurmountable obstacle to their doing so. In reaching this conclusion we take into account the judgment of the Court of Appeal in Mahmood [2001] IAR 229 and in particular the passages quoted at paragraph 7 of the determination. If the Appellant's wife chooses not to accompany him he can return and make a marriage application. It is not the function of the Adjudicator or the Tribunal to try and guess whether such an application will be successful. In any event this should not be material. If an application is likely to fail on its merits then this cannot be a good reason for circumventing the anticipated decision, which would, in the words of Laws LJ, "be manifestly unfair to other would-be entrants".

20. On the evidence to return the Appellant to Kosovo, with or without his wife and child, would not infringe the high Article 3 threshold.

21. The Appellant has established that he has a private and family life in the United Kingdom with his wife and child. To return him to Kosovo would interfere with these rights. We find that to return him would be in accordance with the law and pursuant to a legitimate aim. The reasons are relevant and sufficient. Taking into account all the relevant circumstances (Bequiri [2002] UKIAT 00725) the interference is proportionate to the aim.

22. For these reasons we dismiss this appeal.

…………………………………….
P. R. Moulden
Vice President