The decision

AA (Shala - DP 3/96) Sudan [2004] UKIAT 00240


Heard: 16.08.2004
Signed: 17.08.2004
Sent out: 27.08.2004


John Freeman (a vice-president)
Charles Bennett and
Martyn Griffiths JP

Secretary of State for the Home Department,

Mr T Cooray (counsel instructed by Noden & Co) for the appellant
Mr G Elks for the respondent


This is an appeal from a decision of an adjudicator (Dr R Kekić), sitting at Hatton Cross on 17 October 2003, dismissing an asylum and human rights appeal by a citizen of the Sudan. Permission to appeal was given, on 23 February 2004, on the basis that “There is, conceivably, an Article 8 or a Shala point here …”, on the footing of the Home Office having taken six years to make their decision, and the claimant’s wife (now a British citizen) being from Ethiopia, rather than the Sudan.
2. It may not have been clear at that stage that Shala [2003] EWCA Civ 233 was a decision on its own unusual set of facts, and not intended as a general encouragement to the appellate authorities to compensate delay on the part of the Home Office with decisions leading to indefinite leave to remain. That certainly has been clear at least since [2004] UKIAT 00024 M* (Croatia), and the views expressed there have been confirmed by those of the Court of Appeal themselves in Alihajdaraj [2004] EWCA Civ 1084. For the ratio in Shala to operate in any other case, the following elements must be present:
a) undue delay by the Home Office; and
b) a general policy at the date by which a decision should have been made (usually a year after the application) such that some form of leave to remain would likely have been given then; and
c) the loss of some opportunity which leave would have provided.

3. In this case there certainly was undue delay; and, if there had been any general policy likely to lead the Home Office to grant leave at the proper time for a decision, then the appellant would have been able to make a marriage application with a right of appeal from within the jurisdiction, if refused; and not subject to refusal on an Amjad Mahmood [2002] Imm AR 229 basis. So points a) and c) are satisfied, and the Shala point, if there is one, turns on b). The Home Office PF1 and attached documents give a lamentably inadequate account of the history of this case. What actually happened, so far as relevant, was this:

26.03.96 appellant effects clandestine entry into this country
29.03.96 claims asylum
29.08.00 marries
20.09.00 refusal letter, citing non-compliance with procedure
01.10.00 notice of illegal entry, with removal directions: appealed by appellant
16.11.00 Home Office withdraw non-compliance decision
15.12.00 child born to appellant and wife
23.07.01 marriage application
05.09.02 refusal letter on merits of asylum and human rights case
09.09.02 refusal letter on marriage application
10.10.02 removal directions now under appeal

4. The letter of 9 September 2002 was neither included nor referred to in the Home Office appeal bundle, which would have saved a great deal of public expense and confusion. We cannot understand why it was made the subject of a separate letter in the first place, since the letter of the 5th had considered the appellant’s marriage on an article 8 basis. The letter of the 9th did consider the then current policy on such applications (which Mr Cooray had contended, till it came to light, had not been done): that was DP 3/96. No point was taken on the genuineness of the marriage; the reasonableness or otherwise of expecting the appellant’s wife to join him in the Sudan was dealt with (whether rightly or wrongly we are not concerned with for the moment).
5. Only the second criterion in DP 3/96, according to Mr Cooray, was not considered properly at all. That requires the marriage to pre-date the service of an enforcement notice by at least two years. Mr Cooray argued that no effective enforcement notice was served till 10 October 2002, the date of the decision now under appeal; so the marriage had been over two years before that.
6. We disagree. The point of DP 3/96 was to give full consideration to marriage relationships which were already well settled before any notice was given to the parties that one of them might have to leave this country. Though the notice of 1 October 2000 was no longer effective to bring about the appellant’s removal, once the Home Office had recognized they had wrongly refused him asylum on non-compliance grounds, and withdrawn that decision, it had most certainly given him notice that he was liable to removal. The Home Office were entitled to take the view, in their letter of 9 September 2002, that his marriage on 29 August 2000 did not pre-date such notice by at least two years.
7. That in our view means Shala cannot apply on our point b) [see 2 above]: there was no general policy in effect at the date of the appellant’s marriage application which should have resulted in its being granted; and Mr Cooray was unable to refer us to evidence of any such policy which would have been likely to result in his asylum claim leading to a grant of leave, if considered within a year of its making.
8. It follows that this appeal could only succeed on the basis that, on the facts of the individual case, no reasonable Home Secretary could have pursued the appellant’s removal: see 24 M* (referred to at 2). The only point put forward by Mr Cooray on that was that his wife has back trouble, and he is a help to her around the house. Admirable as such help would no doubt be, there is no medical evidence of the degree of any disability of the wife’s, and nothing to suggest that she and their child could not cope with ordinary life, if necessary with the help of this country’s social services, while the appellant was back in the Sudan getting a visa to rejoin them.
9. On the adjudicator’s findings (quite rightly not appealed by Mr Cooray on this point), there would be no real risk for the appellant in doing that; and we see no reason in the light of Mahmood why he should not be expected to do so. Whether the Home Office actually insist on it is up to them

John Freeman

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