The decision


Heard at Field House

On 4 May 2004

ZS and AR (Costs of statutory review) Iraq [2004] UKIAT 00231


Date Determination notified:

23 August 2004


Dr H Storey – Vice President
Mr C P Mather – Vice President
Mr R Hamilton







1. The First Appellant, [ ] is a citizen of Iraq. She appeals the determination of an Adjudicator (Mrs I R Montgomery) which was promulgated on 16 September 2003. In that determination the Adjudicator dismissed her appeal, on both asylum and human rights grounds, from a decision of the Respondent made on 16 May 2001 to issue directions for her removal to Iraq following the refusal of her asylum application. The second appellant is her dependent daughter and only child who was born in Baghdad on 20 September 1994.

2. Permission to appeal in this case was granted by the Court of Session on 27 January 2004 when, on a statutory review the court reversed the refusal of a Vice President, on 16 November 2003, to grant permission to appeal.

3. We will set out here the appellant's immigration history because there is no convenient chronology in the papers and the appellant's arguments depend, to some extent, on dates.

4. The Chronology:-

(a) December 2000 - Appellant leaves Iraq.

(b) 27 January 2001 - Appellant arrived in the United Kingdom and claimed asylum at port of entry.

(c) 16 May 2001 – the respondent refuses asylum and issues removal directions.

(d) October 2001 – the first Adjudicator (Mr McSherry) allows the appellant's appeal on asylum, Article 2 and 3 grounds but not Article 8.

(e) 22 November 2002 - the Immigration Appeal Tribunal allows the respondent's appeal from Mr McSherry’s determination and remits the appeal for a fresh hearing.

(f) 16 September 2003 – the second Adjudicator (Mrs I Montgomery) dismisses the appeal.

(g) 16 November 2003 – Vice President refuses permission to appeal.

(h) 27 January 2004 – Court of Session reverses the decision and grants permission to appeal.

5. When the appellant arrived in the United Kingdom, with her only child, Saddam Hussein was still in power in Iraq. The appellant, a graduate, married her husband in 1993. She obtained her degree in Modern Languages from the University of Baghdad in 1995. Both she and her husband are Kurds and originally from Northern Iraq. Her husband owned a motor spares, parts, and taxi business in Baghdad. He also traded in rugs with Northern Iraq and owned property in Suleymaniyah. The appellant claimed that her husband became involved in smuggling people into the Kurdish Autonomous Area (the KAA) and he did this because of sympathy with the plight of the Kurds. She described his activities as covert and highly dangerous. This culminated in him smuggling a senior Iraqi army officer into the KAA in September 2000, we do not know why. He used the appellant and their daughter as cover. In December 2000, the appellant's husband became aware that there was a warrant for his arrest. The family fled, first to Jordan then to Turkey, from where the appellant and her daughter came to the United Kingdom. Her husband remained in Turkey. She says that she has not seen or heard from him since.

6. The first Adjudicator found the appellant to be credible and allowed her appeal. The respondent's appeal to the Tribunal was effectively allowed by consent. Both representatives before that Tribunal are recorded as having agreed that the first Adjudicator’s determination was flawed because of inadequate findings concerning the possibility of internal flight.

7. By the time the appeal came before the second Adjudicator the coalition forces had toppled the regime of Saddam Hussein. The appellant's Counsel conceded that she no longer had any basis for claiming a well-founded fear of persecution in Iraq. The asylum appeal was not pursued. Similarly, the appellant did not pursue any appeal under Article 3 ECHR but restricted her appeal to a consideration of her rights under Article 8. The Adjudicator expressly accepted that, although the appellant could no longer argue that she had a well-founded fear of persecution in Iraq, the appeal may have succeeded had there been a final determination prior to April 2003.

8. The original grounds of appeal to this Tribunal challenged the Adjudicator’s finding that it would be proportionate to return the appellant to Iraq notwithstanding that she accepted that the second appellant (the daughter), at least, had established a private life in the United Kingdom and that through her, as her mother, so had the first appellant.

9. The Adjudicator found that the only family life which the appellants have in the United Kingdom is with each other. She observed that the prospects of obtaining support from other family members is greater in Iraq than it is in the UK, because they may still have close family members living there.

10. The Adjudicator then turned to look at what private life had been established in the United Kingdom. She accepted that private life included the right to development and personality and to create and foster relationships with others. She said it would include such factors as community ties, employment and contribution to taxes. She concluded that taken in isolation the first appellant could not be said to have established a private life in the United Kingdom. In doing so, she acknowledged she had formed some friendships in the United Kingdom but had no evidence as to the nature of those relationships. She did not know whether they were close or meaningful. She also said that they were formed at a time when the appellant's immigration status was uncertain.

11. As to the second appellant, the Adjudicator said her situation was different because she had been at school in Scotland for approximately two and a half years and the Adjudicator considered this a very strong tie to the community. She had formed friendships and become accustomed to a way of life within the Scottish community. She had enjoyed that way of life since she was six years of age. The second appellant probably was not aware of her precarious immigration status. The Adjudicator concluded that taken together the appellants did have a private life in the United Kingdom.

12. The Adjudicator then went on to ask herself the correct question namely, is the decision to remove the appellants a proportionate response to the “aim of preserving the integrity of immigration control”. In considering this question, the Adjudicator considered objective evidence about conditions in Iraq. She noted that despite some evidence that general conditions were not as good as sometimes indicated, it was clear that the universities in Iraq are all functioning again and the health services are recovering rapidly. This is so even though many sacked Ba'ath party professors have been reinstated and new hospital equipment has yet to arrive. It was submitted to the Adjudicator that the appellants would find life in Iraq extremely unpleasant and that they would risk their physical and moral integrity if they were to be returned. It was argued that they would have no protection by a husband or father and the family home has been destroyed. But, the Adjudicator noted that no evidence was led to show that the appellants will be at any greater risk than any other mother and child being returned to Iraq without male protection. She said that it was possible that once in Iraq the appellants will be able to re-establish contact with close family members. The Adjudicator concluded that she was not satisfied that the appellant's physical or moral integrity would be sufficiently effected to a degree falling within the scope of Article 8 of the Convention. Therefore the Article 8 claim failed.

13. During the course of the argument before the Adjudicator the appellant, claimed that as a result of the case of Shala [2003] EWCA Civ 233, the fact that the appellant had been a genuine refugee when she arrived, and would, had her claim been dealt with quickly, have achieved refugee status, meant that the Article 8 appeal should succeed. The Adjudicator disagreed with that assertion and the argument was reopened before us.

14. Before we turn to the instant appeal we need to deal with an application made by Mr Blair to vary the grounds of appeal. The first issue he wished to add arises from the Court of Session’s decision in Saber v the Home Secretary (13 November 2003) that the Kurdish Autonomous Area is not an entity which can afford protection under the Refugee Convention. He argued that, following that decision the first Tribunal had been wrong to remit the question of sufficiency of protection to another Adjudicator and in doing so had made a fundamental error in law. He argued that the conclusion the Tribunal should have drawn was that the appellant was entitled to refugee status.

15. The other two proposed amendments both related directly to the assessment of the Article 8 appeal. In argument, Mr Blair accepted these two amended grounds were no more than particulars of the ground upon which permission had been given. He accepted that he did not need to press for the amendments.

16. Having heard argument about the proposed variation, we were unable to see any basis for allowing such a variation. The decision in Saber relates to adequacy of protection. That relates to asylum and Article 3 grounds in respect of which the appellant had conceded before the Adjudicator that she no longer had a basis for a well-founded fear following the removal of the Saddam Hussein regime. We refused permission to vary the grounds. The relevance of Saber was argued again when we came to consider the issues dealt with in Shala in the Article 8 appeal.

17. Mr Blair took us first to the Adjudicator’s treatment of proportionality. He argued that she has not addressed the issue at all. He also argued that the Adjudicator had confused the issues which she had to decide by introducing the concept of physical and moral integrity and also by looking at the conditions in Iraq. Mr Blundell argued that her finding was impeccable.

18. We are by no means certain that it is. It is true that the Adjudicator asked herself the correct question at the end of paragraph 17 when she said:-

“The crucial issue in this case is, as Mr Bryce indicated, whether or not the decision to remove these appellants is proportionate to the aim of preserving the integrity of immigration control”.

19. But the next, and final substantive, paragraph of the determination confined itself to looking entirely at the position the appellants may find themselves in, in Iraq. Thus we agree with Mr Blair when he said that the Adjudicator has not actually addressed the question of proportionality even though she asked herself the question.

20. However we do not consider that the Adjudicator’s failure to properly consider proportionality fundamentally flawed her determination. Even if it had, we consider we are in a position to assess proportionality ourselves subject to certain caveats. The Tribunal, in a starred decision [2004] UKIAT 00024 M (Croatia) has considered the proper approach to follow in Article 8 appeals. At paragraph 25 it recognises that where an Adjudicator was the primary decision maker (as here) the Adjudicator was obliged to reach her own conclusion on whether removal would be disproportionate. The approach to be followed is for the Adjudicator to make that assessment giving appropriate weight to the public need identified in relation to immigration control. In paragraph 27 the Tribunal said that the interests of immigration control “will usually be a very weighty consideration indeed”. The procedure to be adopted by the Tribunal in a case such as this, where an assessment of proportionality has not been carried out is to be found in paragraph 28. So far as relevant, paragraph 28 says this:-

“The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. … it would … have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessment and proportionality. We cannot think of one at present; it is simply that we cannot rule it out.”

21. Bearing in mind these caveats we now turn to assess whether or not removing these appellants would be proportionate.

22. The facts set out above demonstrate nothing exceptional about either of the two appellants. The Adjudicator found the first appellant did not have a private life independently of the second appellant. The second appellant’s private life is nothing unusual. She is a 9 year old girl who, in accordance with the law of the United Kingdom, has attended school here. During that attendance she has made some friends. During that time she has lived in Scotland.

23. What then is the impact of the Shala decision in this particular case? Shala was considered in M (Croatia) and we use the President’s summary from M (Croatia) (at paragraph 30) to illustrate the impact and significance of Shala:-

“30. The Court of Appeal in Shala held that there were circumstances in which the delay on the part of the Secretary of State in dealing with the asylum claim was an exceptional feature which took the case outside a significant area of judgment which the courts would allow him in balancing the conflicting interests of the proper maintenance of immigration control and interference with Article 8 rights. The exceptional feature in that case was that the appellant had a legitimate claim to enter because at the time he would have been the likely beneficiary of the Secretary of State's policy of granting asylum to ethnic Albanians from Kosovo but his claim had not been determined for some four years despite his chivvying the Secretary of State for an answer, which was an unreasonably long time. Had the decision been made within a reasonable time, he would have been likely to have been granted some form of leave to remain. This would have enabled him to make an in-country application for a variation in his leave to stay as a spouse and the Secretary of State's policy, of requiring those who had no leave, to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. The appellant in that case had married someone who had no connection with Kosovo, who had already had two children and who had already been granted refugee status in this country. The interference was expected to be temporary and was to be inflicted in order to maintain the integrity of the immigration control system, to encourage others to abide by it and to discourage its breach in circumstances where the asserted need to uphold the system in its vigour and harshness in that particular case, arose from the Secretary of State's failure to deal with matters in a reasonably prompt fashion.”

24. In the preceding paragraph the President had said that in relation to Shala he recognised that the impact of delay on the consideration of proportionality is relevant to both private and family life, although the weight to be given to it is likely to be very much greater in the latter than in the former.

25. There are a number of very important factual differences between the instant case and Shala. In Shala it was the respondent who had delayed in making a decision. Here, he made a prompt decision. The reasons for refusal letter is dated about six weeks after the appellants arrival, although the formal decision was not made until four months later. That is not a significant delay. In Shala it was said that the Secretary of State had a policy of granting status to people arriving from Kosovo at the time the appellants did. In this case there was no similar policy at the time. The respondent considered and refused the asylum claim. Also, the appellants have no application which they could make in-country if they were to have been granted any sort of status. It was never intended that Mr Shala would leave the country permanently but that he would merely be inconvenienced by having to go and make an application from abroad.

26. We accept that delay in making a decision can be a factor in the consideration of proportionality. The President said as much in M (Croatia). The same point was made by Dr Storey when his Tribunal considered Shala and delay in [2004] UKIAT 00016 J. In J the Tribunal went on to say that the Shala point will only cover delay if it is underpinned by special or exceptional circumstances. That 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; and

(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 have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship”.

That is all very different from the situation in the instant case.

27. In Janjanin [2004] EWCA Civ 448 Lord Justice Wall said that Shala depended very much on its own facts. The overall decision in Janjanin is support for the approach of the Tribunal in M (Croatia) although M (Croatia) was not relied upon before the (English) Court of Appeal, or if it was, it was not referred to in the judgment.

28. Mr Blair argued that Shala represents the right of an appellant not to suffer from arbitrary decisions, which might extend not just to the respondent but the whole of the United Kingdom establishment. Thus, he argued, the fact that the appellant's asylum application was promptly refused does not preclude him from arguing that delay is a relevant factor in this appeal. He said that, on appeal to the first Adjudicator the appellant was found credible and her appeal was allowed. He used that as his platform for suggesting that the appellant should have obtained refugee status in October 2001. He reminded us that the Court of Session had now decided that the authorities in the Kurdish Autonomous Area are legally incapable of providing protection as envisaged by the 1951 Convention. This issue had been dealt with obiter in Gardi a decision of the [English] Court of Appeal which suggested that was the case. That decision was ultimately impugned for technical reasons and the specific question of the legal ability of the KAA to provide such protection had not been subsequently decided. Mr Blair argued that following the decision in Saber it was appropriate to apply hindsight and to say that the respondent should not have appealed the first Adjudicator’s decision. Hence the appellant was entitled to refugee status after that decision.

29. We suggested to Mr Blair that it could hardly be described as arbitrary to pursue an appeal on the basis that the respondent believed that there was adequate protection in the KAA. That has been his consistent approach in cases involving Kurds from Iraq. He had taken the point and fully argued it before the Court of Session. Although Mr Blair sought to disagree, he did not manage to satisfy us that it had been an arbitrary decision.

30. The time that it has taken this appeal to progress through the system does not amount to an unreasonable delay. The respondent himself has certainly acted promptly. There has not been any inordinate delay in the proceedings since. Both parties were, at various times pursuing legitimate litigation. We do not regard the respondent’s approach as being made illegitimate by the subsequent decision of the Court of Session which sought to resolve an issue which had not been resolved earlier.

31. Finally we observe the appellants’ Counsel consented to the remittal of the appeal by the first Tribunal and thereby consented to the prolonging of the procedure.

32. In any event there is a major fallacy in Mr Blair’s argument. The issue dealt with in Saber was the question of protection. It was decided that the KAA is legally unable to offer such protection. However, the first Adjudicator’s determination was remitted because of problems with his findings concerning internal flight. Internal flight is not the same issue as protection. If the appellants had been able to go to the Kurdish Autonomous Area safely then on its own the question of protection would not arise. If there is no basis for a well-founded fear, there is no requirement for protection. The appellants’ fear at the time was of Saddam Hussein’s Government and his officials. She had not said that she would have fears in the KAA even if there had been other reasons for arguing that she could not go to the KAA.

33. As a result of what we have said above it follows that the appellant cannot succeed on a Shala point. There has not been any significant delay on the part of the respondent and there has not been significant delay on the part of the appellate authorities. The appellants do not claim to be prevented from making an application in-country, but which would now have to be made out of country. We disagree with the submissions of Mr Blair concerning the appellant's entitlement to status at an earlier stage. We do not accept the argument that delay in the appeal process is equivalent to delay by the respondent, even if there had been such delay.

34 The first appellant cannot properly argue that she had a legitimate claim to remain in the United Kingdom because of the first Adjudicator’s findings. At no time has she been able to claim that. It is true that she has been, with her daughter, here since January 2001. She is entitled to have the time that she has been here taken into account in the course of considering the question of proportionality. That she believed that she had a legitimate claim to asylum at one time is something that we can properly take into account. There is no suggestion that her claim was without foundation, albeit that it has never succeeded. That goes on to the credit side of the balancing exercise along with such elements of private life that we have referred to earlier. But, the type of private life claimed by the appellants carries very little weight even taking full account of the length of time the appellants have been here, and the fact that they may have succeeded if the appeal had been decided earlier. Allowing for all those factors we are unable to find that, this is an exceptional case. It is not. There is nothing exceptional about it at all.

35. When the Court of Session reversed the Vice President’s decision to refuse permission to appeal it reserved the question of expenses for determination by the Tribunal. The basis for this order is to be found in Rule 41.52 of the rules of the Court of Session which says:-

“The court may reserve the expenses of the application to be determined by the Tribunal”.

Mr Blair argued that it is appropriate to award costs to the appellants if their appeal succeeded. In other words, the costs of the statutory review should follow the event before us. Mr Blundell argued against this because in a statutory review application the respondent is not served with the papers and has no opportunity to make submissions and is therefore arguably not a party to the application. For example, the respondent could not concede such an application. Rule 41.49 provides for only the Tribunal to be served with a copy of a petition for statutory review and Rule 41.50 provides for the petition to be determined by a single Judge without a hearing.

36. If an order is made for expenses to be paid, the amount is assessed by an auditor, there are provisions in chapter 42 dealing with that.

37. As this appeal failed, there is no basis for ordering payment of expenses to the appellant. The Court of Session must have had in mind that payment of the appellant’s expenses should be dependent on the outcome of this appeal, otherwise it would have made a final order itself. The respondent was not a party to the Statutory Review and has incurred no expenses. There is no basis for making any order for payment to or by the appellant. We were not told anything about legal aid expenses.

38. The appeal is dismissed. There is no order for payment of the expenses of Statutory Review.


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