The decision

Heard at Field House EN (Article 8 - Nhundu and Chiwera - Proportionality not Relevant ) Kenya [2003] UKIAT 00102
On 21 October 2003
Written 21 October 2003


Date Determination Notified

. . .25 October 2003. .


Mr S L Batiste (Chairman)
Rt Hon Countess of Mar
Professor B L Gomes da Costa JP






1. The Appellant, a citizen of Kenya, appeals, with leave, against the determination of an Adjudicator, Mr P A Spencer, dismissing his appeal against the decision of the Respondent on 26 February 2001 to issue removal directions and refuse asylum. This appeal to the Tribunal lies only on human rights grounds, and in practice Article 8, because the Adjudicator upheld the Respondent's certification of the asylum claim.

2. Mr S Ravindran represented the Appellant. Mr G Elks, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant claimed that he arrived in the United Kingdom on 4 May 1998 and claimed asylum the next day. His asylum claim was based upon the an alleged fear of the then Kenyan government, both on the grounds of his ethnicity as a Kikuyu from the Rift Valley because of his sympathies for the opposition Democratic Party. He claimed harassment and various detentions and beatings. The Adjudicator assessed his claim on the basis of the objective evidence relating to Kenya at the time of the hearing in April 2003. By that time, the government of Kenya had changed. The opposition National Rainbow Coalition had won a landslide victory and took power in December 2002. The Adjudicator dismissed the asylum claim on the basis that the Appellant's claimed fears if true could no longer subsist in the changed circumstances. He did not make a credibility finding concerning the alleged facts as a whole, but in the context of upholding the Respondent's certificate he concluded that the Appellant's claims of beatings in detention were embellishments and that there was no realistic likelihood that he had been tortured in Kenya.

4. The Adjudicator then went on to consider a freestanding Article 8 appeal based exclusively on the Appellant's family life in the UK. There was no mention of any relevant private life. The Appellant began a relationship with Mrs Rose Busungu at the beginning of 2002, which has resulted in her pregnancy, though they do not live together. Presumably by now their child has been born, though we have not been informed. She had come to the UK in 1999 to get married. She had a daughter, Candy, born on 12 December 1999. Her relationship with her husband ended in April 2001 and she was seeking a divorce. Her husband had denied fathering Candy and showed no interest in her. Mrs Busungu however had indefinite leave to remain as a consequence of this marriage, though she has not as yet sought British citizenship. She was a Ugandan citizen, but had lived in Kenya for six years until 1993, and went to high school there. Her mother lives in Kenya and she has travelled there recently to visit her. She has no fear of persecution in Kenya, and there are no insuperable obstacles to prevent her and the family returning to Kenya with the Appellant.

5. The Adjudicator correctly directed himself to the guidance given by the Court of Appeal in Mahmood, and undertook a proper step-by-step approach as recommended by the Tribunal in Nhundu & Chiwera, in assessing the Article 8 claim. He first assessed whether the Respondent's decision would result in interference with the Appellant's family life. He concluded that there were no obstacles to the family living together in Kenya, other than the wishes of Mrs Busungu, and hence there would be no such interference. He then went on to consider the issue of proportionality and concluded, having taken into account all the relevant issues raised with him, that return would not be disproportionate having regard to the importance of maintaining an effective immigration policy. Finally he concluded that if Mrs Busungu did not wish to return with the Appellant, it would not be disproportionate to expect him to return alone and make an application from Kenya for entry to the UK as a spouse in accordance with the Immigration Rules, as described in Mahmood.

6. The grounds of appeal, upon which permission was granted, were on the basis that the Adjudicator failed to take into account in assessing proportionality the factor described by the Court of Appeal in Shala [2003] EWCA Civ 233. Schiemann LJ expressed it in the following terms.
“As I understand it, had his application and been dealt with in the appropriate timescale as it ought to have been, then his application for permission to stay would in all probability have been granted. The fact that it was not, was not his fault. Had it been granted, a further application to remain with his wife would also in all probability have been granted. It was during this period that the family relationship was established. These factors should have been considered by the decision taker as well as the interests of his wife and the two boys who have now found a father.”

7. Mr Revindran has argued before us that the principle in Shala should be applied even though it was likely that it had not been promulgated at the time the Adjudicator made his determination, and certainly it was not raised at the hearing before him. We agree. Judge made law is inherently retrospective.

8. Mr Revindran went on to argue that because the Adjudicator made no findings of fact concerning the credibility of the Appellant's original asylum claim, the Tribunal does not know whether he would have been granted asylum on arrival in the UK and not could not therefore correct the flaw in the determination itself. It should remit the appeal to the same Adjudicator to complete his findings and review his conclusion, or alternatively remit the entire appeal to a new Adjudicator to hear afresh.

9. There are however a number of fatal flaws in these submissions.

10. The first is that the Adjudicator in following the step-by-step approach recommended by the Tribunal in the leading decision of Nhundu & Chiwera 01/TH/00613, reached a sustainable conclusion that because the entire family could relocate to Kenya together, the Respondent's decision to issue removal directions did not constitute an interference with family life. This is dispositive of the appeal. Mr Revindran argued that the assessment of interference should be subject to the assessment of proportionality. We do not agree. It is inherent in the step-by-step approach recommended by the Tribunal in Nhundu and Chiwera that the assessment of proportionality is the final step, to be addressed only if the previous steps are not dispositive of the appeal. It would not otherwise be a progressive step-by-step approach. Shala relates explicitly to the assessment of proportionality.

11. Second, the decision of the Court of Appeal in Shala reflected particular circumstances that distinguish it from this appeal. In 1999, it was the published policy of the Respondent to grant exceptional leave to remain to all ethnic Albanians fleeing from the ethnic cleansing policy of the Serbian regime in Kosovo. Thus Schiemann LJ was able to conclude on the basis of this policy that it was probable that Shala would have been granted leave had his appeal being determined with reasonable expedition after his arrival. There is no such policy in relation to this Appellant and Kenya. His claim to asylum depends upon individual assessment of his credibility and the objective evidence. Mr Revindran has argued that the Adjudicator was under a responsibility to assess whether his claim would have been allowed, had it been decided within say six months of his arrival. There is however no such obligation on an Adjudicator. It is clear from the decision of the House of Lords in Saad & Osorio C/2000/3596, that the issue of asylum has to be decided on the basis of the situation as at the date of the appeal hearing, which is what the Adjudicator did in this appeal. An Adjudicator is under no obligation to make historic findings as the Tribunal stated in Dyli 00/TH/02186. Mr Revindran was unable to direct us to any relevant authority to the contrary.

12. Third, the Adjudicator did make partial but very material adverse credibility findings in the context of his assessment of the Respondent's certificate. In the light of his conclusion that the claims of torture were embellishments by the Appellant, it cannot be said that there is a probability that the Appellant's asylum claim would have been granted even when he arrived.

13. Fourth, the decision in Shala can be further distinguished because of the substantial difference in the length of delay by the Respondent in reaching the decision. In Shala in the delay was over four years. In this appeal it was well under three years.

14. In the light of these conclusions, it follows that the Adjudicator's decision that return in accordance with removal directions would not be an interference with the Appellant's right to family life is properly sustainable. It also follows in the alternative, as Shala can be distinguished on its facts from this appeal, that the Adjudicator's assessment of proportionality, which has not been otherwise challenged, is also sustainable. This applies both to the Adjudicator's conclusion that it would be proportionate to require the family as a whole to return together and also to the separate conclusion that it would be proportionate for the Appellant to return alone to Kenya and apply for entry to the UK as a spouse in accordance with the Immigration Rules, without queue jumping

15. Accordingly, for the reasons given above, this appeal is dismissed.

Spencer Batiste