The decision

MM (Art 8- Shala - Delay) Serbia and Montenegro [2004] UKIAT 00016


Date heard: 23 October 2003
Date notified.:6th February 2004








1. This case is being reported in order to provide guidance on the proper scope of what has come to be referred to as the Shala “delay” point. It should be read in the light of the recent determination in the case of M [2003] UKIAT 00179 (Croatia), a case in which Mr Justice Ouseley, President of the Tribunal, presided.

2. The appellant, a national of Federal Republic of Yugoslavia, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr C B Kealy, dismissing the appeal against the decision of the Secretary of State giving directions for removal having refused asylum. Mr J Martin of Counsel instructed by Raja & Co Solicitors appeared for the appellant. Ms J Sigley appeared for the respondent.

3. The appellant’s immigration history is important in this case. He entered the UK clandestinely accompanied by his dependent spouse and three dependent minors (dates of birth, 26 July 1993, 27 May 1997 and 7 August 1998) and claimed asylum when detected at port on 21 August 1999. A SEF was issued to him on 20 April 2001 to fully complete and return by 3 May 2001, but he failed to return it. On 7 June 2001 his asylum claim was refused under paragraphs 336 and 340 of HC395.The respondent considered he had failed without reasonable explanation to make a prompt and full disclosure of the facts of his claim and as a result of this failure had not established his claim.

4. The claimant was a farmer who as a sideline played drums in an Albanian folk band. His home was in Medvede in southern Serbia. The basis of his asylum claim was that he would be at risk on return because of his mixed ethnicity. The basis of his Art 8 claim was that the delay of one year and 8 months in the Home Office making a decision in his case meant that he had been unfairly denied a grant of refugee status or ELR.

5. The adjudicator noted that at the hearing the respondent was prepared to accept the appellant`s explanation for his failure to disclose any asylum case prior to the hearing and did not challenge credibility. There was, in his words, a “bizarre set of circumstances” (He set them out thus:

“By the time the SEF letter was sent out he had moved from his notified address and his solicitors though aware of his move had not notified the Respondent. He had, however, in fact received the SEF letter almost immediately and taken it to his solicitors. They produced, he says, a letter purporting to come from the Respondent, and purporting to grant him asylum. The letter is an obvious forgery. The Appellant then states that the solicitor discarded the SEF and proceeded to apply for a travel document on the Appellant`s behalf on the strength of the letter. An acknowledgement is said to have been received from the Respondent for that application form. There is a letter dated 13 June 2001 in which the solicitors make the claim. Those solicitors have subsequently ceased to do immigration work (the Appellant says they have closed down). Their letter to the Appellant so informing him is dated 10 July 2001 and also refers to the grant of refugee status. Despite his belief that he had been granted refugee status he seems to have decided nonetheless to instruct other solicitors immediately and has been represented by Raja & Co since 26 July 2001. The latter seem not have made direct enquires of the Respondent until March 2002 but were eventually informed that the grant letter was a forgery and that the Appellant`s asylum claim had in fact been refused”.)

6. In such circumstances he did not consider it would be right to take a different view. There is no challenge to this aspect of his approach to the case.

7. In relation to the appellant`s asylum grounds of appeal, the adjudicator was prepared to accept that the appellant`s family home had been attacked by Albanians who perceived his father as pro-Serbian. He was also prepared to accept that his remaining family may have been killed after he left. Whilst doubting, in view of his ability to receive invitations to play at weddings, that the appellant himself continued to be a target, he did accept that it was “not at all unlikely that his father became a target of the UCPMB”. However, he considered that after the adoption of the Covic Plan in 2001 there had been a significant change of circumstances in southern Serbia, with the establishment of a multi-ethnic police force. He concluded that neither the appellant`s mixed ethnicity nor the fact of having a pure Albanian wife would place him at risk of persecution or serious harm.

8. The Vice President who granted permission to appeal did not consider that the asylum grounds were arguable. We agree. The appeal before us was properly confined to the Art 8 issue.

9. In granting permission to appeal in this case, Vice President Barnes said:

“I do not consider that the limited exception created by Shala can arguably be claimed to extend to the wholly different situation where the claimed effect of delay is simply that had the decision-making process been carried out more speedily a different result might arguably have resulted. The Refugee Convention contains clear provision for cesser of refugee status when the conditions which brought it about no longer exist, and whatever the Secretary of State`s practice in granting greater status than applies under the Refugee Convention may be, it does not seem to me that it can arguably be right to claim that this should impose a requirement to consider refugee status on a retrospective basis simply because the constraints of handling a numerically large number of applications mean that each application cannot be dealt with as quickly as the applicant might wish. “

For the above reasons I do not consider that the grounds of appeal raise any arguable issues having a real prospect of success. Nevertheless, in light of Shala, it is requisite that the Tribunal should have the opportunity of giving guidance to adjudicators as to the limits to be placed upon its ambit and for that reason only I grant permission to appeal limited to the issued raised at ground 2 of the grounds of appeal”.

10. The adjudicator dismissed the Art 8 grounds of appeal. In assessing the relevant circumstances, he identified two as requiring particular consideration. The first concerned delay. He noted that there had been a delay of some 18 months in the Home Office reaching a decision in his case. However, he did not think this period was unacceptable. The principles set out in the Shala case and in the Xhacka case did not, he said, apply here. In these two cases the claimants had changed their marital status in the interval between arrival and decision, so that removal potentially threatened to separate husband and wife. In this case, he stated, the whole family arrived together and would be removed together.

11. The second circumstance - or set of circumstances - had to do with the children. He stated at para 10.4:

“ I accept that even if family life would not be interfered with by removal, his private life would be interfered with. The remaining factor on which the Appellant relies heavily is the effect of removal on his children. The youngest was only just one year old when he was brought from Serbia to the UK (quite possibly one of the factors underlying the decision to leave in the first place) and the eldest is now aged almost ten. It will undoubtedly be a wrench for them to be torn away from their English friends and schools and have to readapt, in Sead`s case, to life in Serbia from which he has been away since he was about six, but they are a Serbian family with no legal right to be here and are at an age when adaptation is recognised to be relatively easy. I have a great deal of sympathy for the children’s position, especially Sead, but on a careful balancing of the whole circumstances the Respondent has satisfied the burden placed on him by Art 8.2 to show that on balance removal would not be disproportionate to the legitimate needs of the UK. I am satisfied that removal in this case is within the range of reasonable responses and would not be unlawful. The human rights appeal is therefore dismissed”.

12. It was his conclusion, therefore, that as the children were of an adaptable age, removal of the appellant (together with his family) would not be a disproportionate measure.

13. The grounds of appeal maintained that the adjudicator had been wrong to distinguish the case from Shala [2003] INLR 349, [2003] EWCA Civ 233 CA in which, while accepting the general applicability of Mahmood [2001] 1 WLR 840, [2001] INLR 1 and Isiko [2001] INLR 175, the Court held that the circumstances and duration of a claimant’s presence in the UK could be a powerful factor outweighing the respondent’s undoubted right to control immigration, a right to which greater deference would normally be due. They argued that the appellant and family had fled Serbia at a time when there was a real risk of persecution: they were genuine refugees when they left and continued to be refugees for a further two years, until the fall of Milosevic in Serbia.

14. Before proceeding further we would make two observations.

15. Firstly, there was one obvious error in the adjudicator’s approach to Art 8. At para 10.4 he had said that this case was “within the range of reasonable responses and would not be unlawful”. No doubt he had in mind here the judgment of the Court of Appeal in Edore [2003] EWCA Civ 840 which held that when dealing with Art 8 grounds of appeal, adjudicators are confined to considering whether the conduct of the balancing exercise by the Secretary of State was “within the range of reasonable responses”. However, as the Court of Appeal subsequently clarified in Razgar [2003] EWCA Civ 840 and most recently in Djali [2003] EWCA Civ 1371, this restriction on the review function of adjudicators only arises in cases where the Secretary of State when making his decision has considered the position under Art 8, i.e. has carried out the balancing exercise. In this case, however, the Reasons for Refusal letter made no specific reference to Art 8. Although Art 8 had been mentioned in the appellant`s statement of additional grounds, the respondent did not issue any revised decision.

16. It was mentioned in argument that since the Presenting Officer acted as the Secretary of State’s representative the approach set out in Edore still required adjudicators to limit themselves to reviewing whether the decision of the Secretary of State as addressed by the Presenting Officer in the course of an appeal was within the range of reasonable responses. A Presenting Officer, of course, is normally at a rank senior to that of the official who has made the decision appealed against. Whilst we consider it is arguable that some limited degree of deference is due to the position taken by a Presenting Officer on Art 8 matters not previously considered, it is clear from the Court of Appeal judgments in Razgar and Djali that when the decision appealed against is one where no consideration has been given to proportionality:

(1) the adjudicator must conduct that balancing exercise for himself; and

(2) that it is an error for him to treat his review as confined to an assessment of whether the case is “within the range of reasonable responses”. The judgment in Djali is particularly in point since in that case (as here) the Secretary of State had never taken a decision on the proportionality of the appellant`s removal. As Simon Brown, LJ put it:

“It was not until the appeal to the Adjudicator that the appellant sought to rely on Art 8. Even, therefore, were I to accept Ms Giovannetti`s submission that the essential facts here were not in dispute – and that submission too has its difficulties given the contrast between paragraph 14 of the Secretary of State’s decision letter and what Mr de Mello suggests was the objective evidence before the IAT as to the availability of psychotherapy in Kosovo – I would not regard this case as falling within the Edore principle. Although no doubt the Secretary of State at some point in the course of the appeal proceedings must be taken to have decided the question of proportionality against the appellant, the appeal process itself is necessarily directed to his earlier decision”.

17. However, we do not consider that this error on the part of the adjudicator fatally flawed his determination. Even had he fully understood that he had to strike the fair balance required under Art 8 for himself, we do not consider his conclusion would have been materially different.

18. The second observation we would make is that it was unfortunate that in paragraph 10.4 the adjudicator appeared to imply that whilst there had been an interference in this case with private life, there may not have been any interference with family life: he had written: “…even if family life would not be interfered with by removal, his private life would be interfered with”. We say that this mixed finding was unfortunate because, certainly in the way he set it out, it tended to suggest he falsely compartmentalised the “family life” and “private life” issues in this case. As already noted, he had in fact accepted that elements of family life (the existence of a viable family unit) as well as of private life (e.g. the oldest child’s schooling) were engaged in this case. Hence, even if he very properly considered that family life issues as such were less significant, he should not have decided the issue of interference solely by reference to whether the decision amounted to a disruption in the appellant`s private life. As the Tribunal has emphasised in Nhundu and Chiwera (01/TH/0613), the right protected under Art 8 is a composite one and elements of private life and family life require to be considered cumulatively. To approach matters otherwise would risk creating a situation in which the decision-maker in relation to Art 8 had to conduct not one (step-by-step) exercise dealing with private and family life elements considered cumulatively, but two separate (step-by-step) exercises, one dealing with private life, one dealing with family life. In our view that would unnecessarily complicate and compartmentalise the real issues. It may be that in certain cases it is effectively just factors relating solely to family life or solely to private life that are relevant. But whenever elements of both are at all involved, the protected right under Art 8 (1) which underlies them should be understood as a composite one. A decision as to whether there has been an interference should be made in relation to the protected right in this inclusive sense.

19. However, once again, we do not consider that any possible error on the part of the adjudicator in this respect significantly flawed his assessment. Indeed Mr Martin conceded that the only two factors of any significant weight in this case related to the issue of delay and to the position of the children and that, whether these factors were analysed in family life or private life terms, the appellant could only succeed if these were seen to require the balance being struck in favour of the appellant.

20. Dealing first with the adjudicator’s assessment of the position of the children, we consider he was quite entitled to conclude that their interests were not sufficiently weighty. At the date of hearing before the adjudicator, all three were still under 12 years old and were, as the adjudicator justifiably noted, of an adaptable age. It was to their credit that the eldest was doing well at school, but their right to education as such was not placed under any real threat by removal from the UK to southern Serbia. Whilst the adjudicator did not specify all the factors he took into consideration, it is clear that, apart from the possible impact of the Shala point, the appellant`s case was one in which there was a preponderance of factors in favour of the interests of the state in the effective maintenance of immigration control. The appellant and his family had only been in the UK some 4 years. Even accepting (as the adjudicator - at least at paragraph 10.4 - did not) that when they left Kosovo and arrived in the UK they had genuine asylum motives, they understood that their immigration position was precarious and that their future hinged on a favourable decision been made by the respondent. There were no particular difficulties to do with the health of the family. The decision to remove the appellant would not disrupt the unity of the family, since they would be returned together. It was not arguable, therefore, that the decision amounted to a disproportionate interference with the appellant`s right to respect for private and family life - unless his case fell under the Shala exception.

The issue of delay and the Shala point
21. Generally speaking the issue of delay insofar as it arises in the context of an Art 8 appeal is really only about unreasonable delay. Furthermore, it is important to clarify that it has two aspects, one ordinary, one special. It is important to clarify this because Shala only concerned special delay.

22. By ordinary delay we mean this. In conducting the balancing exercise under Art 8 the existence of any unreasonable period of delay is ordinarily a relevant factor. That is not to say that it is necessarily a decisive or even a major factor. But it is certainly a relevant one. Strictly speaking, it is not a factor to be weighed in favour of the individual whose Art 8 rights are asserted; it is rather a factor varying the weight to be placed on the interests of the state in the maintenance of effective immigration control: see Beqiri [2002] UKIAT 00725. Where unreasonable delay has occurred in the processing of an asylum appeal and it is delay attributable to the Secretary of State rather than to the appellant, the interest of the state in the maintenance of effective immigration control is properly assessed as being less strong than in cases where it has sought enforcement speedily. Even so, the interests of the state must still be accorded considerable weight. The margin of discretion afforded to the Secretary of State plainly encompasses the fact that for administrative reasons the processing of asylum claims cannot always be swift.

23. Thus, given the legitimate importance to the interests of the United Kingdom government in maintaining a proper system of immigration control, for delay to become unreasonable it would normally have to be quite excessive. Since much will depend on the particular circumstances, we do not think it helpful to quantify periods of time as excessive or not excessive; but, given the high volume of applications for asylum which the Home Office has had to deal with in the past decade or so, we do not think that periods of delay even several years could be considered excessive, unless accompanied by other special circumstances which disclose particular prejudice to a claimant. We shall return to this matter at the end of our determination.

24. That brings us to delay underpinned by special or exceptional circumstances. That in our view is the only type of delay with which Shala was concerned. The appellant in Shala had arrived in the UK in June 1997 claiming asylum the same day. He had arrived when his country was in the middle of a dreadful civil war in which there were campaigns of ethnic cleansing. He did not receive a decision refusing him asylum until July 2001. During the period of just over 4 years between his claim and the respondent’s decision on it, the appellant had met a woman, a Czech national who was also an asylum seeker. They first met in October 1998 and in December 1998 they began cohabiting. She and her sons by a previous relationship were granted refugee status in May 2000. They married in October 2001. When the case came before an adjudicator, it was accepted that family life could not realistically be enjoyed in Kosovo because it was impossible for his wife and her children to move there. Consequently it was only in this country that such a family life could be maintained.

25. The adjudicator concluded nevertheless that the decision to remove the appellant did not amount to a disproportionate interference with his right to respect for family life since he could return to Kosovo and apply for entry clearance as a spouse from there. The Tribunal upheld the decision of the adjudicator.

26. The Court of Appeal concluded that the Tribunal was wrong. At paragraph 14 Keene, LJ wrote:

“What is striking about both the decision of the Tribunal and that of the Secretary of State is that in each the position of the appellant has been equated with that of any normal applicant who wishes to obtain leave to enter on marriage grounds…But as Mr Blake QC has rightly pointed out, the appellant`s case has an exceptional feature, namely that had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain as a Kosovo refugee, thereby giving him the ability to apply from within the UK for a variation of leave on the grounds of his marriage. The Tribunal does not appear to have considered that submission, which was clearly put before it…In other words, but for the remarkable delay on the part of the Home Office in dealing with his asylum claim, the appellant would not have fallen into the category where the applicable policy requires an application for leave to enter to be made from outside this country.

15. The facts of this case bear a marked similarity with those of Genti Xhacka [2002] UKIAT 03352 (unreported) 31 July 2002 where the Tribunal was presided over by Collins, J. There the appellant was also an ethnic Albanian from Kosovo whose claim for asylum was not dealt with for some 2 [and a half] years. During that time, he met and married a British woman, though the adjudicator found that there were no insurmountable obstacles to the family living together in Kosovo. The Tribunal took the view that the claim under Art 8 should have been allowed, Collins J saying at para [3]:

“In the circumstances of this case, the fact is that the appellant did have a legitimate claim to enter, namely that he was at that time a refugee, and that coupled with the delay in dealing with his claim as an unaccompanied minor until the situation changed, is capable of amounting to exceptional circumstances and does in the circumstances of this case justify a decision that he is entitled to remain here because to remove him would be a breach of Art 8 of the ECHR”.

The significance is that, both in Genti Xhacka and in the present case, the appellant did have a legitimate claim to enter at a time when, on any reasonable basis, his claim should have been determined. Put another way, the fact that the delay by the Home Office has deprived him of that advantage should be seen as an exceptional circumstance which takes the appellant`s case out of the normal run of cases where a person with no leave to enter seeks such leave on the basis of marriage; see Mahmood…”

27. What is clear first of all from the above passages is that the Court of Appeal saw its reasoning in Shala as a gloss on the general principles set out by the Court of Appeal in Mahmood and in particular on the Mahmood principle that, unless there are exceptional circumstances, a person who seeks leave to remain in the UK on the basis of marriage should be expected to apply for entry clearance from abroad. Absent exceptional circumstances, the interests of the state in the effective maintenance of immigration control would normally trump the interests of the individual in staying put. Secondly, it is also clear that the primary point in Shala was predicated on three things:

a) the fact that the appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined; and
b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain [as a Kosovo refugee];and
c) the fact that the appellant`s private of family life had only become significantly established as a result of the time spent in the UK when he met someone here. Accordingly possession of ELR, if it had been granted when it should have been, would thereby have given him the ability to apply from within the UK for a variation of leave on the grounds of his marriage.

28. Plainly (a) and (b) on their own would not have been enough, since the Court only found that special circumstances existed because of the very real consequences it had for the appellant himself: being able, if a decision had been made earlier, to apply to vary leave to remain on the basis of marriage. Thus the Shala point depended on the existence of all three preconditions. We stress that the effect of the delay in Shala was that it deprived the appellant of the opportunity of applying in-country for variation of his leave on the basis of his marriage.

29. We need to note one other matter raised by the particular circumstances of this case. Unlike the position in Shala or Xhacka (or indeed Ala [2003] EWC 521 (Admin)), the appellant in this case did not base his claim on any marriage application he could have made. However, the Tribunal has extended the Mahmood principle (the need to pursue the viable option of entry clearance unless there exist exceptional circumstances) to other than marriage cases (e.g. to claims made under Art 8 from dependent relatives). Therefore, it would only be logical, in our view, to apply the Shala point by extension to other types of family relationships. Thus in principle it is a point as capable of assisting a person who bases his Art 8 claim on a close family relationship as it is to someone who bases it on marriage or intended marriage.

30. As we shall see, however, even read with this extension, the Shala point cannot assist the appellant in this case.

31. We will assume the appellant fulfilled (a), i.e. the first precondition. We are not entirely clear that in this case he did have a legitimate claim to enter the UK when he did. We say this because in Shala reference was made to the government policy of granting ELR to Kosovan refugees as continuing until “mid-1999”. The appellant in this case did not claim to have entered the UK until 12 August 1999. However, Miss Sigley did not take this point against the appellant and it is not in dispute that when the appellant left Kosovo he was fleeing from persecution which had targeted his family. In the circumstances we consider we should assume that the appellant did have a legitimate claim to enter when he arrived.

32. We will also assume, for similar reasons, that the appellant met (b), i.e. the second precondition. That is to say, had an earlier decision been made in his case, he would have been granted ELR.

33. Before continuing we would observe that in being able to meet these first two preconditions the appellant was in an unusual position. Most asylum seekers are not able to meet them. That is because it is unusual for the Secretary of State to adopt policies which recognise, on a group or nationality basis, that at the time appellants left their country and arrived in the UK, conditions there were such that all those fleeing it faced a real risk of persecution or at least of generalised violence. The Shala point will not therefore avail an asylum seeker who simply argues that, had an earlier decision on his asylum claim being made, the Secretary of State might or would have reached a more favourable decision than he subsequently did. In this context, we entirely agree with the point quoted earlier from Vice President Barnes` grant of permission to appeal.

34. However, despite (unusually) meeting the first two preconditions, the appellant plainly did not meet the third precondition. His was a self-sufficient family unit. He has not at any stage pointed to any respect in which an earlier grant of ELR would have enabled him to make a realistic application under some Art 8-related category of the Immigration Rules. In particular, he did not maintain that he would have wished to apply to stay so as to be or remain part of some other or wider family unit.

35. Having concluded that there was no delay of a special or exceptional kind in this case, it remains to consider whether the period of delay in this case in itself constituted a weighty factor.

36. Here again, we consider the adjudicator was perfectly entitled to conclude that the delay of under two years [was not] unreasonable. As noted earlier, each case has to be looked at in the light of the particular circumstances. For example, even a delay of several years may not be excessive if most of it is attributable to the claimant’s conduct. But even where no significant period of delay is attributable to the claimant, much will depend on the particular case and context. In Shala the period of delay was just over four years. In Xhacka it was some 31 months. Further, as already noted, in both those cases the delay was underpinned by special or exceptional circumstances. In this case, by contrast, the delay was less than two years and there were no special or exceptional circumstances. Accordingly we consider that it fell far short of being excessive, particularly bearing in mind that during the relevant period the Secretary of State had to process a high volume of asylum applications, including a significant number from Kosovans. Accordingly, the adjudicator did not err in deciding it was not a decisive factor when it came to striking a fair balance between the interests of this individual appellant and the interests of the state.

37. Our conclusion, therefore, is that the adjudicator was quite correct to conclude that the considerations set out in the Shala case and the Xhacka case did not apply in this case. In these two cases the claimants had changed their marital status in the interval between arrival and decision, so that removal potentially threatened to separate husband and wife. In this case, as the adjudicator put it, “ the whole family arrived together and would be removed together”. Furthermore, unlike the period of delay involved in these two cases (in excess of 30 months in each case), the period of delay in this case was under two years.

Summary of conclusions on the Shala “delay” point
(i) In conducting the balancing exercise under Art 8 the existence of any unreasonable period of delay is ordinarily a relevant factor, although given the margin of discretion accorded to the interest of the Secretary of State in the maintenance of effective immigration control, this will rarely be a decisive factor unless accompanied by other special circumstances which disclose particular prejudice to a claimant.

(ii) The Shala point can be extended to apply to close family relationships other than marriage relationships.

(iii) The Shala point only covers delay underpinned by special or exceptional circumstances and which is predicated on three things:

(a) the fact that the appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined;
(b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain;
(c) the fact that his private or family life had only become significantly established as a result of the time spent by him in the UK where he formed a relationship. Accordingly possession of ELR, if it had been granted when it should have been, would thereby have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship.

Thus the Shala point depends on the existence of all three preconditions and has little or no application in other contexts.

39. For the above reasons this appeal is dismissed.