[2004] UKIAT 219
- Case title: DW (Article 8, Delay, Proportionality, October policy)
- Appellant name: DW
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Kenya
- Judges: His Hon Judge N Huskinson, Mr Bremmer JP, Mr N Kumar JP
- Keywords Article 8, Delay, Proportionality, October policy
The decision
KH
Heard at: Field House
On: 15 July 2004
Prepared on: 19 July 2004
DW (Article 8 – Delay – Proportionality – October Policy) Kenya [2004] UKIAT 00219
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
5 August 2004
Before:
His Honour Judge Huskinson (Vice President)
Mr N Kumar JP
Mr R Bremmer
Between
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
Representation:
For the Appellant: Ms T Hart (Home Office Presenting Officer)
For the Respondent: Mr M A Rana (Counsel instructed by Ratnam & Co)
DETERMINATION AND REASONS
1. The Secretary of State appeals to the Tribunal, with permission, from the Determination of Mr M D Oakley, Adjudicator, promulgated on 23 September 2003 whereby he dismissed (on asylum grounds) but allowed (on human rights grounds under Article 8 of ECHR) the appeal by the Respondent (hereafter called the Claimant) against the Secretary of State's decision to refuse asylum to the Claimant and to give directions for the removal of the Claimant to Kenya.
2. The Claimant is a citizen of Kenya born on 10 February 1959. The basis on which he claimed asylum is that he was an employee at the University of Nairobi and was a member of the Ford Asili Party. As a result of this membership he was arrested and detained and ill-treated by the police on three occasions during 1997 because he was seen to be against the then current government, namely the Kanu Government. Eventually the university authorities sent the Claimant home on forced paid leave for one year and during the first few days of that period the Claimant came to understand that the police were again looking for him and that in particular the Police Flying Squad were doing so, who the Determination said were infamous for their brutality. The Claimant, therefore, decided he must leave Kenya and did so in December 1998 arriving in the United Kingdom on 25 December 1998 and being granted, initially, 24 hours leave to enter. He applied for asylum on 27 January 1999.
3. The Adjudicator accepted the Claimant as a credible witness. However, he dismissed the asylum appeal, and the related human rights appeal under Article 3, on the basis that by reason of the change of government in December 2002 and the election of a new parliament, which gave a landslide victory to Mr Kabiki's party, the Claimant was no longer at any real risk on return. While a Respondent's Notice (which is referred to further below) has been served in this case, it is not and has never been contended that the Adjudicator in any way erred in dismissing the asylum or Article 3 appeal.
4. The Adjudicator did, however, allow the Claimant's appeal under Article 8. Having set out the various steps in the analysis in paragraph 34 he continued in paragraphs 35 to 41 in the following terms:
"35. I find firstly that the delay by the Respondent in determining the Appellant's claim is lamentable. The Appellant was not interviewed for two years after his arrival and having been interviewed, it took the Respondent a further eighteen months to issue a Notice of Refusal.
36. The Respondent has not questioned the credibility of the Appellant's account and given the Appellant's account and the objective evidence I am satisfied that it is more than likely that the Appellant, if his case had been decided timeously by the Respondent, would have been granted Refugee status at the time he originally made the application.
37. A similar situation so far as delay is concerned was considered recently by the Court of Appeal in Arben Shala Case Number CI 2002/2059 in which the Court of Appeal in part of their judgement stated "…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 cross-over regime, thereby giving him the ability to apply from within the United Kingdom for a variation… the IAT does not appear to have considered that submission… 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…".
38. I have no doubt whatsoever that the Appellant's account of why he left Kenya before a decision had been made and a different government had been in power from that which is now in power in Kenya that the Appellant and his family would have been granted Refugee status.
39. The Appellant and his wife have themselves been very industrious; both have had employment and more importantly, have two children that they brought with them, namely [ ] and [ ]. In the case of [ ] he has spent nearly half his life in the United Kingdom and in the case of [ ] nearly five years. In both cases, these two boys from all the reports about them have been extremely industrious and both are clearly bright boys who should do well academically and in addition, especially [ ], has already excelled himself at sport. Both boys will have had chance to enrich themselves in the United Kingdom culture and will have acquired many friends at school.
40. I have been referred to the case of Benson Wachai UK IAT 06682 in which the Tribunal made the following statement during the course of their judgement "in our view the Home Office cannot now be allowed to excuse their own inaction in taking such inexplicably slow steps over the years to decide the future of a family with young children, in terms of the legitimate purpose of maintaining an effective system of immigration control which they themselves so signally failed to secure. Whilst at any reasonable time the decision under appeal would have been proportional to that purpose, by the time it was taken, five and a half years after this family first tried to regularise their situation here by making an application for Indefinite Leave to Remain (even if outside the rules), that was no longer the case".
41. That paragraph, taken from the IAT's judgement, could be equally applied to the Appellant and his family in this particular case and whilst quite clearly there would be an interference in their returning the family to Kenya, that interference does have legitimate aims, namely the control of immigration, it is clear to me that the interference is totally disproportionate given the circumstances relating to the facts of this particular Appeal, notwithstanding the legitimate aim to be achieved.
5. Accordingly the Adjudicator allowed the Claimant's appeal under Article 8.
6. Before coming to the respective arguments of Ms Hart and Mr Rana, two points can be noted at this stage.
7. First, there is the somewhat puzzling passage in paragraph 38 of the Determination. It seems as though some words may have been omitted. It is not clear what the Adjudicator is expressing there to be "no doubt whatsoever" about. On one reading it might be thought he was saying he had no doubt whatsoever that, if the asylum claim had been considered earlier, the Claimant would have been granted refugee status. However, this would be dealing with the same point as is dealt with in paragraph 36 and would be putting it in a different manner and at a higher level. In paragraph 36 the Adjudicator expressed himself satisfied that "it is more than likely" that the Claimant would have been granted refugee status if the claim had been decided timeously at the time he originally made his application. Ms Hart drew attention to the fact that there was no blanket policy in favour of Kenyan asylum seekers in place at any relevant time and she argued that it was speculation on the part of the Adjudicator to reach a conclusion as to the prospects of a successful outcome if the asylum application had been considered earlier.
8. A further point to note is the following. By agreement between the parties at the hearing before the Adjudicator certain facts regarding the history of this claim were not revealed to the Adjudicator, so as not to influence the Adjudicator by what had happened before a previous Adjudicator. It seems, however, that rather than the delay being between an application for asylum on 27 January 1999 and a reasons for refusal letter dated 12 May 2003, the true chronology is as follows:
25 December 1998: arrived in the United Kingdom.
27 January 1999: Claimant makes asylum claim with his wife and two children as dependants.
8 August 2000: the Claimant's then solicitors may (but this is not entirely clear) have been issued with an SEF form which should have been returned by 22 August 2000 and they may also have been informed that the Claimant should attend for an interview on 5 September 2000.
15 September 2000: the Secretary of State writes to the Claimant, at his previous solicitors, indicating that his application for asylum had been refused and that the Secretary of State had decided to make a deportation order against the Claimant.
28 November 2000: letter from the Claimant's new solicitors, Ratnam & Co, to IND complaining of the negligence of the Claimant's previous solicitors and that the Claimant was never aware that documents had arrived for him to complete and asking that the matter be reconsidered and that a new questionnaire be sent out for the Claimant.
14 December 2000: this was the date originally set for a hearing before an Adjudicator.
May 2001: the Tribunal was informed that in May 2001 the Adjudicator (or possibly the Tribunal) directed that the case be sent back to the Secretary of State for reconsideration bearing in mind what had happened with the previous solicitors.
October 2001: the Claimant is interviewed.
12 May 2003: reasons for refusal letter.
9. On behalf of the Secretary of State Ms Hart advanced the following arguments:
i) She contended that the delay in this case was nothing like so great as the Adjudicator had perceived it to be. He had not been informed of the true facts regarding what had been happening (so no criticism attaches to him in this respect) but in the light of the above mentioned chronology the Secretary of State could not be properly criticised for "lamentable" delay.
ii) Ms Hart argued that the case of Shala should be distinguished as that was a case where the question was whether the Applicant should be required to leave the country so as to make an out-of-country application for entry clearance as a spouse as someone settled in the United Kingdom. It was held that, bearing in mind that if the Applicant's claim for asylum had been dealt with when it should have been he would at least have been granted exceptional leave to remain if not indefinite leave to remain, this fact should have been taken into account when considering whether it was proportionate to apply to the Applicant the provisions which are intended to discourage queue jumping, namely make him leave the country for his country of origin and make an out of country application for entry clearance. Bearing in mind that, if his claim had been dealt with promptly, he would have had the status to make an in-country application it was considered that it would be disproportionate to apply to him the same requirements as would apply to someone who had no meritorious claim at the date they made such claim and who could be expected to make an out of country application. Ms Hart pointed out that in the present case there was no question of the Claimant seeking to rely on delay so as to excuse him from having to go back to Kenya to make an out of country application. There was no available out of country application for him to make. What this Claimant was seeking to do, argued Ms Hart, was to rely upon the delay as granting him a self standing right to be treated as not removable from the United Kingdom, rather then merely being spared the requirement of making an out of country application for entry clearance. In this connection Ms Hart referred to the case of Janjanin [2004] EWCA Civ 448 at paragraph 61. She accepted that delay could be a relevant consideration on proportionality but it was not determinative in the present case.
iii) As regards the question of interference with family life she argued there would be no such interference as the whole family would be removed to Kenya together.
iv) She accepted that the Claimant and his family had established a private life in the United Kingdom and that their removal would involve an interference with this private life, such that it was necessary to consider the question of proportionality. She argued that the Claimant and his family would be able to establish a private life (albeit different from the private life they enjoyed in the United Kingdom) in the new circumstances in Kenya under the new regime.
v) Ms Hart referred to the starred Tribunal Determination in [2004] UKIAT 00024 M (Croatia) and she contended that the Adjudicator had erred in concluding that the interference with the Claimant's private life would be disproportionate.
vi) She distinguished the case of Wachai [2002] UKIAT 06682 on the basis that there there were family members, namely the grandparents, who would be remaining in the United Kingdom.
vii) Ms Hart noted the point raised by Mr Rana based upon the policy announced in October 2003 by the Secretary of State (hereafter "the October Policy") in relation to certain categories of Applicant who arrived in the United Kingdom and made a claim for asylum prior to 2 October 2000, being Applicants with children. She argued however that this was of no relevance to the matter before the Tribunal. The Claimant would be considered separately and in due course under the October Policy and if he qualified he would be granted the appropriate leave – if he did not qualify then he would not be granted leave under the policy.
9. In response to these points Mr Rana advanced the following arguments:
i) Even in the light of the fuller chronology, showing what happened with the Claimant's previous solicitors, there was still unreasonable delay on the part of the Secretary of State. In particular he drew attention to the fact that the case was sent back for reconsideration in May 2001 and no decision was reached until May 2003.
ii) Mr Rana accepted the distinction made in relation to the Shala case. However, in reliance on Janjanin at paragraph 63 he argued that the delay in the present case was still of considerable relevance, although not determinative.
iii) The reason why delay was particularly relevant, he argued, was that if a decision had been taken within a reasonable time then, having regard to paragraphs 36 and 38 of the Adjudicator's Determination, the Claimant would have been recognised as a refugee and would have been granted indefinite leave to remain. In particular Mr Rana argued that the application could and should have been decided before the change of government in Kenya in December 2002 and that, if it had been, the Claimant would have obtained ILR.
iv) He argued that there would be an interference with Article 8 rights, which would mostly be private life rights. He indicated that there may be some interference with family life rights, but he did not argue that there was any family with whom the Claimant enjoyed family life in the United Kingdom beyond the Claimant and his wife and his three children (one child having been born in the United Kingdom) all of whom would be removed with the Claimant.
v) Mr Rana pointed out that the Secretary of State did not consider Article 8 and proportionality at all in the reasons for refusal letter. It was therefore for the Adjudicator to consider this question.
vi) Mr Rana accepted that the appropriate question which the Adjudicator should have asked was whether in the light of the facts found by him a decision to remove was outside the range of reasonable responses. However, he argued that, although the Adjudicator did not expressly remind himself of this test, he should be taken as having applied it bearing in mind his phraseology in paragraph 41 of the Determination when he concludes that it is clear to him that the interference is "totally disproportionate".
vii) He referred to the case of Edore [2003] EWCA Civ 716 at paragraph 20 and also to paragraph 12 of [2004] UKIAT 00088 HR (Serbia and Montenegro), which sets out the proper approach to the question of whether a decision by the Secretary of State is or is not proportionate.
viii) He referred to the Court of Appeal decisions in Oleed [2002 EWCA Civ 1906 and Subesh [2004] EWCA Civ 56. He argued that the Tribunal should only set aside the Adjudicator's decision if it was plainly wrong or perverse.
ix) He referred to the Wachai Determination which he relied upon as a pure delay case and as showing that pure delay on the part of the Secretary of State could indeed result in a conclusion that a decision to remove was disproportionate under Article 8.
x) He referred to the Respondent's notice submitted on behalf of the Claimant which, helpfully, set out the arguments already mentioned above and went on to raise the question of the October Policy. As regards the October Policy he reminded the Tribunal that the Article 8 appeal should be decided having regard to circumstances pertaining as at the date of the Adjudicator's decision (and now the Tribunal's decision) see the starred Tribunal Determination in S & K [2002] UKIAT 05613 accordingly the existence of the October Policy should be borne in mind when considering proportionality.
xi) He indicated that he did not argue that the decision to remove the Claimant could be said to be ultra vires having regard to the October Policy (but he reserved his right to raise such an argument supposing that the Secretary of State in due course failed properly to consider the Claimant's case under the October Policy). However, the relevance of the October Policy for the Tribunal's Determination was, he argued, that it indicated that lesser importance was placed by the Secretary of State on the need to remove persons such as the Claimant. Thus it lessened the weight to be attached to the implementation of a firm and fair immigration policy – if the Secretary of State was prepared to allow many thousands of families to remain in the United Kingdom despite the fact that they had no other claim to do so, he questioned why so much weight should be placed upon removing from the United Kingdom someone in the position of the Claimant.
10. The Tribunal asked for submissions from the representatives as to the significance of the recent House of Lords decision in Razgar [2004] UK HL 27, especially per Lord Bingham at paragraph 20:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
Ms Hart relied upon this passage. Mr Rana argued that the present case was indeed exceptional. He relied upon the Adjudicator's Determination and in particular the fact that the Claimant was a credible witness, that he was a genuine asylum seeker when he arrived and he would have been granted ILR if his claim had been decided earlier, and the Claimant was someone who had not merely worked hard and prospered in the United Kingdom himself but who had a family who had done likewise. He particularly referred to the progress by the Claimant's children who were performing exceptionally well in school and in other activities. He referred to the material in the additional bundle showing such progress. He argued that this was a family who had good reason to be proud of its achievements. He referred to the October Policy as a further reason why the case was exceptional. He also referred to the fact that the Adjudicator was in no doubt about the question of proportionality, expressing himself by saying the decision to remove was "totally disproportionate". Accordingly the present was an exceptional case and Mr Rana argued that the Tribunal should not interfere with the Adjudicator's decision.
11. We have decided that we cannot accept Mr Rana's arguments. Our reasons for so concluding are as follows.
12. We accept that there has been much less delay on the part of the Secretary of State than the Adjudicator thought. However, we conclude that Mr Rama was entitled to argue that there was still more delay than there should have been. We do not consider it would be helpful, even if this exercise could be performed, to seek to divide up each period of delay between January 1999 and May 2003 and to seek to decide who if anyone was at fault for that delay. We consider the significance of this delay further in paragraph 19 below
13. We accept Ms Hart's argument that the case of Shala is distinguishable for the reasons she gave from the present case. In the present case the Claimant is seeking to rely on delay not merely to excuse (as being disproportionate) an obligation to leave the United Kingdom so as to make an out of country application for entry clearance. Instead the delay is being relied upon as providing a self standing right (through the proportionality argument) to be allowed to remain indefinitely in the United Kingdom.
14. We also consider that the case of Wachai is of limited relevance. First, it is distinguishable because there there were other members of the family in the United Kingdom from whom the family would be removed. Secondly, we note the cautionary closing words of the Tribunal in paragraph 16 where the Tribunal stated:
"So far as it turns on the principle that delay can make disproportionate what was otherwise proportionate, our view is that this would only apply in cases where, as here, that delay was obvious, gross and largely unexplained; and has been allowed to prejudice the interests of children, or others unable to fend for themselves, with close relations settled as of right in this country."
We do not accept that the delay in the present case was obvious, gross and largely unexplained, nor are there close relations settled as of right in this country. Quite apart from the foregoing, and of more importance, this decision was reached prior to the starred Tribunal decision in 00024 M (Croatia) and most of the important Court of Appeal decisions referred to therein.
15. Accordingly we conclude that the Adjudicator erred in law in that:
i) He proceeded on the basis of an understanding that the Secretary of State's delay was substantially greater than it was (although no criticism attaches to the Adjudicator because he was not made aware of the underlying facts).
ii) The Adjudicator did not approach the question of proportionality by asking himself the question of whether the decision to move was outwith the range of reasonable responses on the part of the Respondent, as advocated in M (Croatia). Instead the Adjudicator reached his own conclusion on proportionality. We do not consider that the Adjudicator can be taken to have followed the M (Croatia) approach merely by reason of the phraseology used in paragraph 41, and in particular, the expression "totally disproportionate".
iii) The Adjudicator in our judgment also erred by omitting to notice the distinguishing features between the present case and the cases on which he relied of Shala and Wachai.
16. In the foregoing circumstances the Adjudicator's decision on the Article 8 claim is flawed and the Tribunal should itself consider the Article 8 claim in the light of the relevant authorities including, in particular, M (Croatia) (and the decisions referred to therein) and Janjanin and Razgar.
17. We have in mind all the matters identified by the Adjudicator and by Mr Rana in favour of the Claimant and his family, especially the way they have prospered in this country and the children's success in school and life outside school. However, leaving aside for a moment the two particular features next mentioned, the Tribunal is unable to conclude that there is anything exceptional about the present case nor can we conclude that a decision to remove is outside the range of reasonable responses open to the Secretary of State. The two particular features which we have laid on one side and which we now turn to consider are, (a) the fact that an earlier decision would probably have resulted in recognition of the Claimant as a refugee; and (b) the October Policy.
18. We note paragraphs 57 and 58 of Kay LJ's judgment in Janjanin where he stated:
"57. ….
It cannot be right that merely because for a relatively small part of the time when an application might have been determined, there was a good prospect or even a likelihood of success, that it follows that any subsequent Determination has to be favourable even if by then the position has changed. If this application had been determined in its first four and a half months, the evidence does not suggest that it would have succeeded. If it had been determined after Bulletin 1/00 was issued again it seems likely to me on the available evidence that it would have failed. Such a situation is in my judgment far removed from the position in Shala and thus even if an argument of this kind had been advanced before the IAT I am satisfied that it would have failed.
58. For these reasons I would dismiss each of these appeals, I consider that there may well be further merit in Mr Wilken's argument that one is not comparing like with like in considering those cases involving a right to remain when there is no existing basis for such a right apart from Article 8 considerations and the underlying circumstances of Shala's case. However, in the light of my conclusions on the factual matters already set out, I find it unnecessary to determine this issue and I consider it better that it awaits to be considered in a case where there are different facts that might otherwise lead to a different conclusion."
19. It is relevant to note the significance of the delay in the present case. There was some (albeit not lamentable) delay on the part of the Secretary of State in deciding the Claimant's asylum claim. We consider the position to be as follows:
i) The Secretary of State could and in our view should have decided the claim well before December 2002. Had he done so there is a reasonable prospect (but no more than that in our view) that the Secretary of State would have recognised the Claimant as a refugee entitled to asylum. There is a substantial element of speculation in what the Secretary of State would have decided in these hypothetical circumstances bearing in mind that there was no stated policy of the Secretary of State in relation to asylum seekers from Kenya in a position similar to that of the Claimant.
ii) If the Secretary of State had refused the Claimant's asylum appeal in a prompt decision, then the Claimant would have had a reasonable prospect (but no more than that) of obtaining a hearing before an Adjudicator prior to December 2002. There would have been a reasonable prospect, but no more than that, that at such a hearing the Adjudicator would have allowed the Claimant's asylum appeal.
We are unable to say that there was any more than a reasonable prospect of the Claimant succeeding on his asylum appeal because the question of whether he was entitled to asylum in circumstances before the change of government in Kenya simply has not been considered by the Secretary of State at all and has not been considered in any detail by the Adjudicator – or if it has been considered in any detail by him he has not given this detailed analysis, with reasons, in his Determination. The Tribunal itself was not invited (and we consider both representatives were correct not to invite us) to give detailed consideration to the hypothetical question of whether the Claimant would or would not have succeeded on his asylum claim if it had been considered prior to December 2002.
20. In the light of the foregoing uncertainties, the question arises as to the extent to which the prospect of obtaining asylum (if there had not been delays) affects the consideration of the question of proportionality under Article 8. We do not see that it has any significant relevance. In considering the question of proportionality it is necessary for the decision maker to have in mind the extent and significance of the interference with the Claimant's Article 8.1 rights on the one hand and the considerations which are relied upon by the Secretary of State as making such interference proportionate on the other hand. That is the relevant balance, to be approached in accordance with the relevant legal principles which are explained in M (Croatia) and the Court of Appeal decisions referred to therein and in Razgar. Taking first the Claimant's side of this balance, we do not see how the fact that he had a reasonable prospect of succeeding in his asylum claim if it had been decided at some earlier stage can alter the extent of the interference with his family life and the disruption and adverse consequences flowing from this. The interference will be just as great and the consequences just as serious whether he would or would not at some earlier stage have succeeded on an asylum claim. Similarly, if one looks at the other side of the balance we do not see how the fact that the Claimant might, at some earlier stage, have succeeded on an asylum claim can affect the weight which the Secretary of State properly places upon a firm and fair immigration policy, which includes a policy of refusing leave to remain in the United Kingdom to persons who have been decided not to be entitled to such leave. On the basis therefore that the weight in neither side of the balance is affected by the fact that the Claimant might have succeeded on his asylum claim if it had been decided earlier, we do not see how this consideration can affect the analysis regarding proportionality. It may be noted that if the position were otherwise, we can see great practical problems and we question how as a matter of practicality the consideration which Mr Rana urges upon us could, in any fair or workable manner, be taken into consideration on questions of proportionality. In the circumstances of a country of origin where country conditions were fluctuating, one could find that it was urged by a Claimant, whose claim had been decided otherwise than promptly, that if the claim had been decided promptly then it would have been decided during a window in country conditions when he would have succeeded on his asylum claim. Accordingly the decision maker, the Secretary of State or an Adjudicator or the Tribunal, would need to consider at what date the claim should reasonably have been considered and would then have to consider a hypothetical case as to whether, if considered at date X, the Claimant would have succeeded. Apart from the undesirability of such hypothetical considerations having to be undertaken, we cannot see how the conclusion on this hypothetical question impinges upon the question of whether, as at the date of the ultimate decision by the decision maker, a decision to remove is or is not proportionate within Article 8. For the avoidance of doubt we should add that we would reach the same conclusion even if (which we do not accept) it could be said that if the Secretary of State had considered the asylum claim promptly the Claimant would definitely have been recognised as a refugee entitled to asylum.
21. We now turn to the question of the October Policy. Ms Hart understandably made no concessions before the Tribunal as to whether or not the Claimant would be entitled to succeed under this policy. However, no reason was suggested why the Claimant would not succeed under it. There is thus, at least, a real prospect that the Claimant will be entitled to be granted leave to remain in the United Kingdom under the October Policy.
22. The Tribunal considers that the question of whether the Claimant is or is not entitled to stay under the October policy is not a matter of relevance to the question of whether the decision of the Secretary of State which is attacked by the Claimant, namely the decision that he be removed to Kenya taken in May 2003, is a decision which is unlawful by reason of being a disproportionate interference with the Claimant's Article 8 rights. It seems to us that the question on this appeal is quite separate from the question of whether the Claimant is entitled ultimately to succeed under the October Policy. All that is clear at present is that the Claimant is entitled in due course to be properly considered under the October Policy.
23. If, however, the foregoing is wrong and the terms of the October Policy are relevant to the Tribunal's analysis under Article 8, then this does not lead the Tribunal to any conclusion different from that already indicated above. We can see some substance in Mr Rana's argument that, if the Secretary of State considers it right to grant leave to remain in the United Kingdom to thousands of families who have no other right to be here save that they are family Applicants who claimed asylum before 2 October 2000 and who satisfy certain other conditions, then this may indicate that the Secretary of State attaches less importance to removing persons in the Claimant's position than might otherwise have been thought. However, the Tribunal considers that the important point is this. If (contrary to the Tribunal's primary view) the October Policy is relevant to the Article 8 appeal before the Tribunal, then the situation is this. The situation as at the present date is that the Secretary of State has taken a decision the effect of which, in relation to this Claimant, is not that he will definitely be removed from the United Kingdom if his present appeal fails. Instead the position is that if the Claimant's present appeal fails then he will potentially be subject to removal from the United Kingdom, but will not be removed unless and until he has been considered under the October Policy and has been found (contrary to the Claimant's expectations) not to qualify. The foregoing being the present effect of the Secretary of State's decision to remove, viewing that decision as at the present date in accordance with the S & K case, the Tribunal cannot see that the decision so viewed can be said to be a disproportionate interference with the Claimant's Article 8 rights.
24. Accordingly, neither of the two additional features identified in paragraph 17 above, either separately or cumulatively, lead the Tribunal to alter the conclusion we would have reached apart from these considerations as expressed in paragraph 17 above, namely that the Secretary of State's decision to refuse the Claimant asylum and to issue directions for his removal to Kenya is not unlawful. The decision does not constitute any disproportionate interference with the Claimant's Article 8 rights.
25. In the result, therefore, the Secretary of State's appeal is allowed.
His Honour Judge Huskinson
Vice President
Heard at: Field House
On: 15 July 2004
Prepared on: 19 July 2004
DW (Article 8 – Delay – Proportionality – October Policy) Kenya [2004] UKIAT 00219
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
5 August 2004
Before:
His Honour Judge Huskinson (Vice President)
Mr N Kumar JP
Mr R Bremmer
Between
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
Representation:
For the Appellant: Ms T Hart (Home Office Presenting Officer)
For the Respondent: Mr M A Rana (Counsel instructed by Ratnam & Co)
DETERMINATION AND REASONS
1. The Secretary of State appeals to the Tribunal, with permission, from the Determination of Mr M D Oakley, Adjudicator, promulgated on 23 September 2003 whereby he dismissed (on asylum grounds) but allowed (on human rights grounds under Article 8 of ECHR) the appeal by the Respondent (hereafter called the Claimant) against the Secretary of State's decision to refuse asylum to the Claimant and to give directions for the removal of the Claimant to Kenya.
2. The Claimant is a citizen of Kenya born on 10 February 1959. The basis on which he claimed asylum is that he was an employee at the University of Nairobi and was a member of the Ford Asili Party. As a result of this membership he was arrested and detained and ill-treated by the police on three occasions during 1997 because he was seen to be against the then current government, namely the Kanu Government. Eventually the university authorities sent the Claimant home on forced paid leave for one year and during the first few days of that period the Claimant came to understand that the police were again looking for him and that in particular the Police Flying Squad were doing so, who the Determination said were infamous for their brutality. The Claimant, therefore, decided he must leave Kenya and did so in December 1998 arriving in the United Kingdom on 25 December 1998 and being granted, initially, 24 hours leave to enter. He applied for asylum on 27 January 1999.
3. The Adjudicator accepted the Claimant as a credible witness. However, he dismissed the asylum appeal, and the related human rights appeal under Article 3, on the basis that by reason of the change of government in December 2002 and the election of a new parliament, which gave a landslide victory to Mr Kabiki's party, the Claimant was no longer at any real risk on return. While a Respondent's Notice (which is referred to further below) has been served in this case, it is not and has never been contended that the Adjudicator in any way erred in dismissing the asylum or Article 3 appeal.
4. The Adjudicator did, however, allow the Claimant's appeal under Article 8. Having set out the various steps in the analysis in paragraph 34 he continued in paragraphs 35 to 41 in the following terms:
"35. I find firstly that the delay by the Respondent in determining the Appellant's claim is lamentable. The Appellant was not interviewed for two years after his arrival and having been interviewed, it took the Respondent a further eighteen months to issue a Notice of Refusal.
36. The Respondent has not questioned the credibility of the Appellant's account and given the Appellant's account and the objective evidence I am satisfied that it is more than likely that the Appellant, if his case had been decided timeously by the Respondent, would have been granted Refugee status at the time he originally made the application.
37. A similar situation so far as delay is concerned was considered recently by the Court of Appeal in Arben Shala Case Number CI 2002/2059 in which the Court of Appeal in part of their judgement stated "…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 cross-over regime, thereby giving him the ability to apply from within the United Kingdom for a variation… the IAT does not appear to have considered that submission… 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…".
38. I have no doubt whatsoever that the Appellant's account of why he left Kenya before a decision had been made and a different government had been in power from that which is now in power in Kenya that the Appellant and his family would have been granted Refugee status.
39. The Appellant and his wife have themselves been very industrious; both have had employment and more importantly, have two children that they brought with them, namely [ ] and [ ]. In the case of [ ] he has spent nearly half his life in the United Kingdom and in the case of [ ] nearly five years. In both cases, these two boys from all the reports about them have been extremely industrious and both are clearly bright boys who should do well academically and in addition, especially [ ], has already excelled himself at sport. Both boys will have had chance to enrich themselves in the United Kingdom culture and will have acquired many friends at school.
40. I have been referred to the case of Benson Wachai UK IAT 06682 in which the Tribunal made the following statement during the course of their judgement "in our view the Home Office cannot now be allowed to excuse their own inaction in taking such inexplicably slow steps over the years to decide the future of a family with young children, in terms of the legitimate purpose of maintaining an effective system of immigration control which they themselves so signally failed to secure. Whilst at any reasonable time the decision under appeal would have been proportional to that purpose, by the time it was taken, five and a half years after this family first tried to regularise their situation here by making an application for Indefinite Leave to Remain (even if outside the rules), that was no longer the case".
41. That paragraph, taken from the IAT's judgement, could be equally applied to the Appellant and his family in this particular case and whilst quite clearly there would be an interference in their returning the family to Kenya, that interference does have legitimate aims, namely the control of immigration, it is clear to me that the interference is totally disproportionate given the circumstances relating to the facts of this particular Appeal, notwithstanding the legitimate aim to be achieved.
5. Accordingly the Adjudicator allowed the Claimant's appeal under Article 8.
6. Before coming to the respective arguments of Ms Hart and Mr Rana, two points can be noted at this stage.
7. First, there is the somewhat puzzling passage in paragraph 38 of the Determination. It seems as though some words may have been omitted. It is not clear what the Adjudicator is expressing there to be "no doubt whatsoever" about. On one reading it might be thought he was saying he had no doubt whatsoever that, if the asylum claim had been considered earlier, the Claimant would have been granted refugee status. However, this would be dealing with the same point as is dealt with in paragraph 36 and would be putting it in a different manner and at a higher level. In paragraph 36 the Adjudicator expressed himself satisfied that "it is more than likely" that the Claimant would have been granted refugee status if the claim had been decided timeously at the time he originally made his application. Ms Hart drew attention to the fact that there was no blanket policy in favour of Kenyan asylum seekers in place at any relevant time and she argued that it was speculation on the part of the Adjudicator to reach a conclusion as to the prospects of a successful outcome if the asylum application had been considered earlier.
8. A further point to note is the following. By agreement between the parties at the hearing before the Adjudicator certain facts regarding the history of this claim were not revealed to the Adjudicator, so as not to influence the Adjudicator by what had happened before a previous Adjudicator. It seems, however, that rather than the delay being between an application for asylum on 27 January 1999 and a reasons for refusal letter dated 12 May 2003, the true chronology is as follows:
25 December 1998: arrived in the United Kingdom.
27 January 1999: Claimant makes asylum claim with his wife and two children as dependants.
8 August 2000: the Claimant's then solicitors may (but this is not entirely clear) have been issued with an SEF form which should have been returned by 22 August 2000 and they may also have been informed that the Claimant should attend for an interview on 5 September 2000.
15 September 2000: the Secretary of State writes to the Claimant, at his previous solicitors, indicating that his application for asylum had been refused and that the Secretary of State had decided to make a deportation order against the Claimant.
28 November 2000: letter from the Claimant's new solicitors, Ratnam & Co, to IND complaining of the negligence of the Claimant's previous solicitors and that the Claimant was never aware that documents had arrived for him to complete and asking that the matter be reconsidered and that a new questionnaire be sent out for the Claimant.
14 December 2000: this was the date originally set for a hearing before an Adjudicator.
May 2001: the Tribunal was informed that in May 2001 the Adjudicator (or possibly the Tribunal) directed that the case be sent back to the Secretary of State for reconsideration bearing in mind what had happened with the previous solicitors.
October 2001: the Claimant is interviewed.
12 May 2003: reasons for refusal letter.
9. On behalf of the Secretary of State Ms Hart advanced the following arguments:
i) She contended that the delay in this case was nothing like so great as the Adjudicator had perceived it to be. He had not been informed of the true facts regarding what had been happening (so no criticism attaches to him in this respect) but in the light of the above mentioned chronology the Secretary of State could not be properly criticised for "lamentable" delay.
ii) Ms Hart argued that the case of Shala should be distinguished as that was a case where the question was whether the Applicant should be required to leave the country so as to make an out-of-country application for entry clearance as a spouse as someone settled in the United Kingdom. It was held that, bearing in mind that if the Applicant's claim for asylum had been dealt with when it should have been he would at least have been granted exceptional leave to remain if not indefinite leave to remain, this fact should have been taken into account when considering whether it was proportionate to apply to the Applicant the provisions which are intended to discourage queue jumping, namely make him leave the country for his country of origin and make an out of country application for entry clearance. Bearing in mind that, if his claim had been dealt with promptly, he would have had the status to make an in-country application it was considered that it would be disproportionate to apply to him the same requirements as would apply to someone who had no meritorious claim at the date they made such claim and who could be expected to make an out of country application. Ms Hart pointed out that in the present case there was no question of the Claimant seeking to rely on delay so as to excuse him from having to go back to Kenya to make an out of country application. There was no available out of country application for him to make. What this Claimant was seeking to do, argued Ms Hart, was to rely upon the delay as granting him a self standing right to be treated as not removable from the United Kingdom, rather then merely being spared the requirement of making an out of country application for entry clearance. In this connection Ms Hart referred to the case of Janjanin [2004] EWCA Civ 448 at paragraph 61. She accepted that delay could be a relevant consideration on proportionality but it was not determinative in the present case.
iii) As regards the question of interference with family life she argued there would be no such interference as the whole family would be removed to Kenya together.
iv) She accepted that the Claimant and his family had established a private life in the United Kingdom and that their removal would involve an interference with this private life, such that it was necessary to consider the question of proportionality. She argued that the Claimant and his family would be able to establish a private life (albeit different from the private life they enjoyed in the United Kingdom) in the new circumstances in Kenya under the new regime.
v) Ms Hart referred to the starred Tribunal Determination in [2004] UKIAT 00024 M (Croatia) and she contended that the Adjudicator had erred in concluding that the interference with the Claimant's private life would be disproportionate.
vi) She distinguished the case of Wachai [2002] UKIAT 06682 on the basis that there there were family members, namely the grandparents, who would be remaining in the United Kingdom.
vii) Ms Hart noted the point raised by Mr Rana based upon the policy announced in October 2003 by the Secretary of State (hereafter "the October Policy") in relation to certain categories of Applicant who arrived in the United Kingdom and made a claim for asylum prior to 2 October 2000, being Applicants with children. She argued however that this was of no relevance to the matter before the Tribunal. The Claimant would be considered separately and in due course under the October Policy and if he qualified he would be granted the appropriate leave – if he did not qualify then he would not be granted leave under the policy.
9. In response to these points Mr Rana advanced the following arguments:
i) Even in the light of the fuller chronology, showing what happened with the Claimant's previous solicitors, there was still unreasonable delay on the part of the Secretary of State. In particular he drew attention to the fact that the case was sent back for reconsideration in May 2001 and no decision was reached until May 2003.
ii) Mr Rana accepted the distinction made in relation to the Shala case. However, in reliance on Janjanin at paragraph 63 he argued that the delay in the present case was still of considerable relevance, although not determinative.
iii) The reason why delay was particularly relevant, he argued, was that if a decision had been taken within a reasonable time then, having regard to paragraphs 36 and 38 of the Adjudicator's Determination, the Claimant would have been recognised as a refugee and would have been granted indefinite leave to remain. In particular Mr Rana argued that the application could and should have been decided before the change of government in Kenya in December 2002 and that, if it had been, the Claimant would have obtained ILR.
iv) He argued that there would be an interference with Article 8 rights, which would mostly be private life rights. He indicated that there may be some interference with family life rights, but he did not argue that there was any family with whom the Claimant enjoyed family life in the United Kingdom beyond the Claimant and his wife and his three children (one child having been born in the United Kingdom) all of whom would be removed with the Claimant.
v) Mr Rana pointed out that the Secretary of State did not consider Article 8 and proportionality at all in the reasons for refusal letter. It was therefore for the Adjudicator to consider this question.
vi) Mr Rana accepted that the appropriate question which the Adjudicator should have asked was whether in the light of the facts found by him a decision to remove was outside the range of reasonable responses. However, he argued that, although the Adjudicator did not expressly remind himself of this test, he should be taken as having applied it bearing in mind his phraseology in paragraph 41 of the Determination when he concludes that it is clear to him that the interference is "totally disproportionate".
vii) He referred to the case of Edore [2003] EWCA Civ 716 at paragraph 20 and also to paragraph 12 of [2004] UKIAT 00088 HR (Serbia and Montenegro), which sets out the proper approach to the question of whether a decision by the Secretary of State is or is not proportionate.
viii) He referred to the Court of Appeal decisions in Oleed [2002 EWCA Civ 1906 and Subesh [2004] EWCA Civ 56. He argued that the Tribunal should only set aside the Adjudicator's decision if it was plainly wrong or perverse.
ix) He referred to the Wachai Determination which he relied upon as a pure delay case and as showing that pure delay on the part of the Secretary of State could indeed result in a conclusion that a decision to remove was disproportionate under Article 8.
x) He referred to the Respondent's notice submitted on behalf of the Claimant which, helpfully, set out the arguments already mentioned above and went on to raise the question of the October Policy. As regards the October Policy he reminded the Tribunal that the Article 8 appeal should be decided having regard to circumstances pertaining as at the date of the Adjudicator's decision (and now the Tribunal's decision) see the starred Tribunal Determination in S & K [2002] UKIAT 05613 accordingly the existence of the October Policy should be borne in mind when considering proportionality.
xi) He indicated that he did not argue that the decision to remove the Claimant could be said to be ultra vires having regard to the October Policy (but he reserved his right to raise such an argument supposing that the Secretary of State in due course failed properly to consider the Claimant's case under the October Policy). However, the relevance of the October Policy for the Tribunal's Determination was, he argued, that it indicated that lesser importance was placed by the Secretary of State on the need to remove persons such as the Claimant. Thus it lessened the weight to be attached to the implementation of a firm and fair immigration policy – if the Secretary of State was prepared to allow many thousands of families to remain in the United Kingdom despite the fact that they had no other claim to do so, he questioned why so much weight should be placed upon removing from the United Kingdom someone in the position of the Claimant.
10. The Tribunal asked for submissions from the representatives as to the significance of the recent House of Lords decision in Razgar [2004] UK HL 27, especially per Lord Bingham at paragraph 20:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
Ms Hart relied upon this passage. Mr Rana argued that the present case was indeed exceptional. He relied upon the Adjudicator's Determination and in particular the fact that the Claimant was a credible witness, that he was a genuine asylum seeker when he arrived and he would have been granted ILR if his claim had been decided earlier, and the Claimant was someone who had not merely worked hard and prospered in the United Kingdom himself but who had a family who had done likewise. He particularly referred to the progress by the Claimant's children who were performing exceptionally well in school and in other activities. He referred to the material in the additional bundle showing such progress. He argued that this was a family who had good reason to be proud of its achievements. He referred to the October Policy as a further reason why the case was exceptional. He also referred to the fact that the Adjudicator was in no doubt about the question of proportionality, expressing himself by saying the decision to remove was "totally disproportionate". Accordingly the present was an exceptional case and Mr Rana argued that the Tribunal should not interfere with the Adjudicator's decision.
11. We have decided that we cannot accept Mr Rana's arguments. Our reasons for so concluding are as follows.
12. We accept that there has been much less delay on the part of the Secretary of State than the Adjudicator thought. However, we conclude that Mr Rama was entitled to argue that there was still more delay than there should have been. We do not consider it would be helpful, even if this exercise could be performed, to seek to divide up each period of delay between January 1999 and May 2003 and to seek to decide who if anyone was at fault for that delay. We consider the significance of this delay further in paragraph 19 below
13. We accept Ms Hart's argument that the case of Shala is distinguishable for the reasons she gave from the present case. In the present case the Claimant is seeking to rely on delay not merely to excuse (as being disproportionate) an obligation to leave the United Kingdom so as to make an out of country application for entry clearance. Instead the delay is being relied upon as providing a self standing right (through the proportionality argument) to be allowed to remain indefinitely in the United Kingdom.
14. We also consider that the case of Wachai is of limited relevance. First, it is distinguishable because there there were other members of the family in the United Kingdom from whom the family would be removed. Secondly, we note the cautionary closing words of the Tribunal in paragraph 16 where the Tribunal stated:
"So far as it turns on the principle that delay can make disproportionate what was otherwise proportionate, our view is that this would only apply in cases where, as here, that delay was obvious, gross and largely unexplained; and has been allowed to prejudice the interests of children, or others unable to fend for themselves, with close relations settled as of right in this country."
We do not accept that the delay in the present case was obvious, gross and largely unexplained, nor are there close relations settled as of right in this country. Quite apart from the foregoing, and of more importance, this decision was reached prior to the starred Tribunal decision in 00024 M (Croatia) and most of the important Court of Appeal decisions referred to therein.
15. Accordingly we conclude that the Adjudicator erred in law in that:
i) He proceeded on the basis of an understanding that the Secretary of State's delay was substantially greater than it was (although no criticism attaches to the Adjudicator because he was not made aware of the underlying facts).
ii) The Adjudicator did not approach the question of proportionality by asking himself the question of whether the decision to move was outwith the range of reasonable responses on the part of the Respondent, as advocated in M (Croatia). Instead the Adjudicator reached his own conclusion on proportionality. We do not consider that the Adjudicator can be taken to have followed the M (Croatia) approach merely by reason of the phraseology used in paragraph 41, and in particular, the expression "totally disproportionate".
iii) The Adjudicator in our judgment also erred by omitting to notice the distinguishing features between the present case and the cases on which he relied of Shala and Wachai.
16. In the foregoing circumstances the Adjudicator's decision on the Article 8 claim is flawed and the Tribunal should itself consider the Article 8 claim in the light of the relevant authorities including, in particular, M (Croatia) (and the decisions referred to therein) and Janjanin and Razgar.
17. We have in mind all the matters identified by the Adjudicator and by Mr Rana in favour of the Claimant and his family, especially the way they have prospered in this country and the children's success in school and life outside school. However, leaving aside for a moment the two particular features next mentioned, the Tribunal is unable to conclude that there is anything exceptional about the present case nor can we conclude that a decision to remove is outside the range of reasonable responses open to the Secretary of State. The two particular features which we have laid on one side and which we now turn to consider are, (a) the fact that an earlier decision would probably have resulted in recognition of the Claimant as a refugee; and (b) the October Policy.
18. We note paragraphs 57 and 58 of Kay LJ's judgment in Janjanin where he stated:
"57. ….
It cannot be right that merely because for a relatively small part of the time when an application might have been determined, there was a good prospect or even a likelihood of success, that it follows that any subsequent Determination has to be favourable even if by then the position has changed. If this application had been determined in its first four and a half months, the evidence does not suggest that it would have succeeded. If it had been determined after Bulletin 1/00 was issued again it seems likely to me on the available evidence that it would have failed. Such a situation is in my judgment far removed from the position in Shala and thus even if an argument of this kind had been advanced before the IAT I am satisfied that it would have failed.
58. For these reasons I would dismiss each of these appeals, I consider that there may well be further merit in Mr Wilken's argument that one is not comparing like with like in considering those cases involving a right to remain when there is no existing basis for such a right apart from Article 8 considerations and the underlying circumstances of Shala's case. However, in the light of my conclusions on the factual matters already set out, I find it unnecessary to determine this issue and I consider it better that it awaits to be considered in a case where there are different facts that might otherwise lead to a different conclusion."
19. It is relevant to note the significance of the delay in the present case. There was some (albeit not lamentable) delay on the part of the Secretary of State in deciding the Claimant's asylum claim. We consider the position to be as follows:
i) The Secretary of State could and in our view should have decided the claim well before December 2002. Had he done so there is a reasonable prospect (but no more than that in our view) that the Secretary of State would have recognised the Claimant as a refugee entitled to asylum. There is a substantial element of speculation in what the Secretary of State would have decided in these hypothetical circumstances bearing in mind that there was no stated policy of the Secretary of State in relation to asylum seekers from Kenya in a position similar to that of the Claimant.
ii) If the Secretary of State had refused the Claimant's asylum appeal in a prompt decision, then the Claimant would have had a reasonable prospect (but no more than that) of obtaining a hearing before an Adjudicator prior to December 2002. There would have been a reasonable prospect, but no more than that, that at such a hearing the Adjudicator would have allowed the Claimant's asylum appeal.
We are unable to say that there was any more than a reasonable prospect of the Claimant succeeding on his asylum appeal because the question of whether he was entitled to asylum in circumstances before the change of government in Kenya simply has not been considered by the Secretary of State at all and has not been considered in any detail by the Adjudicator – or if it has been considered in any detail by him he has not given this detailed analysis, with reasons, in his Determination. The Tribunal itself was not invited (and we consider both representatives were correct not to invite us) to give detailed consideration to the hypothetical question of whether the Claimant would or would not have succeeded on his asylum claim if it had been considered prior to December 2002.
20. In the light of the foregoing uncertainties, the question arises as to the extent to which the prospect of obtaining asylum (if there had not been delays) affects the consideration of the question of proportionality under Article 8. We do not see that it has any significant relevance. In considering the question of proportionality it is necessary for the decision maker to have in mind the extent and significance of the interference with the Claimant's Article 8.1 rights on the one hand and the considerations which are relied upon by the Secretary of State as making such interference proportionate on the other hand. That is the relevant balance, to be approached in accordance with the relevant legal principles which are explained in M (Croatia) and the Court of Appeal decisions referred to therein and in Razgar. Taking first the Claimant's side of this balance, we do not see how the fact that he had a reasonable prospect of succeeding in his asylum claim if it had been decided at some earlier stage can alter the extent of the interference with his family life and the disruption and adverse consequences flowing from this. The interference will be just as great and the consequences just as serious whether he would or would not at some earlier stage have succeeded on an asylum claim. Similarly, if one looks at the other side of the balance we do not see how the fact that the Claimant might, at some earlier stage, have succeeded on an asylum claim can affect the weight which the Secretary of State properly places upon a firm and fair immigration policy, which includes a policy of refusing leave to remain in the United Kingdom to persons who have been decided not to be entitled to such leave. On the basis therefore that the weight in neither side of the balance is affected by the fact that the Claimant might have succeeded on his asylum claim if it had been decided earlier, we do not see how this consideration can affect the analysis regarding proportionality. It may be noted that if the position were otherwise, we can see great practical problems and we question how as a matter of practicality the consideration which Mr Rana urges upon us could, in any fair or workable manner, be taken into consideration on questions of proportionality. In the circumstances of a country of origin where country conditions were fluctuating, one could find that it was urged by a Claimant, whose claim had been decided otherwise than promptly, that if the claim had been decided promptly then it would have been decided during a window in country conditions when he would have succeeded on his asylum claim. Accordingly the decision maker, the Secretary of State or an Adjudicator or the Tribunal, would need to consider at what date the claim should reasonably have been considered and would then have to consider a hypothetical case as to whether, if considered at date X, the Claimant would have succeeded. Apart from the undesirability of such hypothetical considerations having to be undertaken, we cannot see how the conclusion on this hypothetical question impinges upon the question of whether, as at the date of the ultimate decision by the decision maker, a decision to remove is or is not proportionate within Article 8. For the avoidance of doubt we should add that we would reach the same conclusion even if (which we do not accept) it could be said that if the Secretary of State had considered the asylum claim promptly the Claimant would definitely have been recognised as a refugee entitled to asylum.
21. We now turn to the question of the October Policy. Ms Hart understandably made no concessions before the Tribunal as to whether or not the Claimant would be entitled to succeed under this policy. However, no reason was suggested why the Claimant would not succeed under it. There is thus, at least, a real prospect that the Claimant will be entitled to be granted leave to remain in the United Kingdom under the October Policy.
22. The Tribunal considers that the question of whether the Claimant is or is not entitled to stay under the October policy is not a matter of relevance to the question of whether the decision of the Secretary of State which is attacked by the Claimant, namely the decision that he be removed to Kenya taken in May 2003, is a decision which is unlawful by reason of being a disproportionate interference with the Claimant's Article 8 rights. It seems to us that the question on this appeal is quite separate from the question of whether the Claimant is entitled ultimately to succeed under the October Policy. All that is clear at present is that the Claimant is entitled in due course to be properly considered under the October Policy.
23. If, however, the foregoing is wrong and the terms of the October Policy are relevant to the Tribunal's analysis under Article 8, then this does not lead the Tribunal to any conclusion different from that already indicated above. We can see some substance in Mr Rana's argument that, if the Secretary of State considers it right to grant leave to remain in the United Kingdom to thousands of families who have no other right to be here save that they are family Applicants who claimed asylum before 2 October 2000 and who satisfy certain other conditions, then this may indicate that the Secretary of State attaches less importance to removing persons in the Claimant's position than might otherwise have been thought. However, the Tribunal considers that the important point is this. If (contrary to the Tribunal's primary view) the October Policy is relevant to the Article 8 appeal before the Tribunal, then the situation is this. The situation as at the present date is that the Secretary of State has taken a decision the effect of which, in relation to this Claimant, is not that he will definitely be removed from the United Kingdom if his present appeal fails. Instead the position is that if the Claimant's present appeal fails then he will potentially be subject to removal from the United Kingdom, but will not be removed unless and until he has been considered under the October Policy and has been found (contrary to the Claimant's expectations) not to qualify. The foregoing being the present effect of the Secretary of State's decision to remove, viewing that decision as at the present date in accordance with the S & K case, the Tribunal cannot see that the decision so viewed can be said to be a disproportionate interference with the Claimant's Article 8 rights.
24. Accordingly, neither of the two additional features identified in paragraph 17 above, either separately or cumulatively, lead the Tribunal to alter the conclusion we would have reached apart from these considerations as expressed in paragraph 17 above, namely that the Secretary of State's decision to refuse the Claimant asylum and to issue directions for his removal to Kenya is not unlawful. The decision does not constitute any disproportionate interference with the Claimant's Article 8 rights.
25. In the result, therefore, the Secretary of State's appeal is allowed.
His Honour Judge Huskinson
Vice President