The decision

BI (Risk on Return - Article 8) Serbia and Montenegro [2003] UKIAT 00038


Date of Decision: 7 April 2003
Date of Promulgation: 05.08.03

Mr K Drabu (Chairman)
Mr R Bremmer


Miss A Holmes, Senior Presenting Officer for the appellant.
Mr J Patel of Counsel instructed by Malik & Malik, solicitors for the respondent.


1. This is an appeal brought by the Secretary of State against the decision of an Adjudicator, Mrs H S Coleman, who sitting at Taylor House allowed the appeal of Bujar Ismaili, hereinafter called the respondent. The Adjudicator concluded that his removal from the United Kingdom would infringe his rights under Article 8. The respondent is a citizen of the Federal Republic of Yugoslavia from Kosovo. He was born on 21 April 1975 and arrived in the United Kingdom on 17 May 1999 and claimed asylum at port. His claim to asylum was refused and the decision was upheld on appeal on 15 September 2000. On 23 July 2001 the respondent claimed that his removal would be contrary to his right to family life. His claim was upheld by the Adjudicator and as a consequence we have before us the appeal of the Secretary of State before us, contending that the Adjudicator’s decision is in error of law.

2. The Adjudicator said that the Article 8 claim related to his relationship with his common law wife. He said he could only consider the facts as they were at the date of the decision. This interpretation of Section 77 was found to be in error in S&K and we shall of course decide this appeal on the correct interpretation of Section 77. The parties claim that they married under a religious ceremony in May 2001. The parties have lived together ever since. The Adjudicator found in paragraph 25 that there is a family life between the respondent and his wife who is also a Kosovan. She quite correctly found that the respondent has no right to remain in the United Kingdom and that “any interference with Article 8 rights would be lawful and legitimate.” She then went on to consider whether the interference would be proportionate. In this context she noted that neither party had the right to remain in the United Kingdom and that they married at a time when both were aware that their rights to remain in the United Kingdom were uncertain. Furthermore and more importantly there is no evidence of any insurmountable obstacle making it impossible for the parties to live in Kosovo. I have no evidence whatsoever of the wife’s situation. I am simply told that she suffers from depression. There was no medical evidence….” After having made a clear finding that the couple could live together in Kosovo, the Adjudicator went on to say in paragraph 29 of her determination, “I only make one proviso to this. At the present time the appellant’s wife does have an outstanding asylum claim and human rights claim. Until those claims are decided return of a wife to Kosovo could possibly result in resettlement or breach of her human rights. In those circumstances it would not be reasonable or proportionate to ask the wife to return to Kosovo before her claims are decided. If the husband had to leave whilst the wife’s claims were undecided the parties would be separated. That separation could be for a long time. I understand that the appellant’s wife has not yet been interviewed in connection with her claims. Therefore any separation could be upwards of a year. The respondent has not given any undertaking not to return the appellant to Kosovo without his wife. Under those specific circumstances and in the absence of any such undertaking, I find that separation of the couple would be disproportionate while the wife awaits a decision on her status in the UK. To that limited extent I find that the appellant should not be returned to Kosovo until his wife’s applications in this country have been determined and that any immediate return to Kosovo without the wife would be in breach of Article 8. To that extent, I allow the human rights appeal.”

3. We asked Mr Patel to address us first. He said that we should uphold the Adjudicator’s decision. He said that the respondent’s wife had come to the UK in 2000 and was still waiting to be interviewed in connection with her claims. He said that she should not be forced into a situation that required her to give up her legitimate claims in law. He said that she had every right to pursue her claims and for that reason the respondent, he said, should be allowed to remain. We did not think it necessary to hear submissions from Miss Holmes.

4. With the greatest respect to the Adjudicator, her reasoning for allowing the appeal has turned Article 8 right on its head. Article 8 does not give a person the right to install himself in another country simply on the basis that he has chosen to live in that country. The Adjudicator’s reasoning for allowing the appeal gives the respondent rights that he does not have either in the domestic or the international law. His wife is not settled in the United Kingdom. She has no status and yet the Adjudicator finds that simply as a result of her presence the respondent should be allowed to remain so that he can be with her. There is no impediment to his return to Kosovo as the Adjudicator clearly and correctly found. There is no impediment to the return of his wife either. The Adjudicator was not shown any evidence that she requires international protection. The Adjudicator allowed wholly extraneous factors to influence her decision. The fact that the wife has not been interviewed and it may be a while before she is interviewed is neither here nor there. If and when she is interviewed and if her claim to international protection is established, the respondent can apply to join her as her dependant. Her human rights claim under Article 8 will be determined in the usual way as will her claims, if any, under other Articles of the ECHR. The Adjudicator’s determination in this case is perverse and we set it aside. In our judgement the respondent does not have a claim under Article 8 in that even if he has a family life in the United Kingdom, it is not one that requires to be protected and respected by its continuation in the United Kingdom. He has no right either on his own or through his wife to remain in the United Kingdom. If his removal is interference in his family life, it is neither disproportionate nor unreasonable. The appeal is allowed.

K Drabu
Vice President