The decision

KS (Length of Stay – Proportionality) Sri Lanka [2004] UKIAT 00245

Date of Hearing:
Date Signed:
Determination Notified:

19 August 2004
19 August 2004
06 September2004


Mr J Perkins
(Vice President)
Mr Hamilton
Mr P Rogers, JP




For the Appellant:
Mr J McGirr, Senior Home Office Presenting Officer
For the Respondent:
Mr V P Lingajothy, Legal Representative
From Linga & Co, Solicitors


1. The respondent, hereinafter “the claimant”, is a citizen of Sri Lanka. He was born on 4 December 1976 and so is now 28 years old. In a determination promulgated on 15 September 2003 an Adjudicator, Mrs M M Shanahan, allowed his appeal against the decision of the Secretary of State that removal to Sri Lanka was not contrary to his rights under Article 8(1) of the European Convention on Human Rights. It is against that decision that the appellant, hereinafter “the Secretary of State” now appeals.
2. The claimant arrived in the United Kingdom on 27 February 1995 and claimed asylum two days later on 1 March 1995. Although the immigration authorities knew of his presence in the United Kingdom he was not asked to respond to a SEF questionnaire until November 1999 and again in January 2000. He did not respond. He said that he did not know that questionnaires had been sent. The Secretary of State refused his claim by a letter dated 13 June 2000. That decision came to the attention of the claimant towards the end of 2000 when he attended the Home Office to give details of his change of address. An appeal against that decision would, prima facie, have been hopelessly out of time and he did not seek to appeal it.
3. On 25 June 2001 his solicitors wrote to the Secretary of State setting out a “human rights claim”. That was refused by a letter dated 28 November 2001 and it is against that decision that the Adjudicator allowed an appeal.
4. It is most regrettable that the Secretary of State took no action on this application between March 1995 and the middle of November 1999, that is some 4½ years after he introduced himself to the Secretary of State and claimed asylum. Without making any comment on the claimant’s failure to respond to a SEF it is very hard to see how he can be criticised for the long delay between his arrival and the initial decision of the Secretary of State. As the Adjudicator noted at paragraph 11 of her determination for the greater part of this time, and since his application was refused, the appellant has lived industriously and has paid his taxes and national insurance. Additionally he has made friends and remains in contact with his relatives in the United Kingdom. There is no suggestion that he has married or otherwise formed a very close relationship with someone but it might be though to his credit that he has not taken such a step at a time that his own immigration status is precarious.
5. Mr Lingajothy, quite rightly, reminded us that this claimant is a young man has been in the United Kingdom for almost all of his adult life. He has lost contact with any family he might have in Sri Lanka and, as far as we know, has not behaved in any way to his discredit in the United Kingdom. Mr Lingajothy was right to remind us of the importance of this decision to this claimant. If he does have to return to Sri Lanka, whatever his circumstances there may be, there will be a big change in his style of living. The claimant is entitled to have his case considered carefully.
6. It may be with these things in mind that Mr McGirr accepted that the appellant had established a “private and family life” of the kind protected by Article 8(1) of the European Convention on Human Rights. We recognise that the Secretary of State’s grounds of appeal argue that the adjudicator was wrong to find that the claimant had established a protected family life. His relatives in the United Kingdom are too distant for that to be the case unless there are special circumstances of a kind not suggested here. That may well be right but it is immaterial given the concession that a protected “private and family life” has been established.
7. It was the Secretary of State’s main point that the Adjudicator had misdirected herself because she had decided for herself whether removal was proportionate. The Adjudicator did not have the benefit of the starred decision of the Tribunal in [2004] UKIAT 00024 M (Croatia)*. If she had then she would probably have decided the case differently.
8. At paragraph 23 of M (Croatia)* the President, Ouseley J, said:
“The real question, regardless of whether the Secretary of State considered proportionality or whether the relevant facts have been appraised differently or have changed, is whether, at the date of hearing, the decision that the appellant can be removed is lawful. That means asking whether or not the decision that the appellant should be removed falls outside the range of reasonable responses as to whether removal would be proportionate to the interference with family life”.

9. The President went on to explain that it is well settled law that the proportionality of removal is essentially a matter for the Secretary of State within the limits of individually defined reasonableness and it was not for the judiciary to determine how to go about enforcing immigration control. The Courts had to recognise that immigration control was usually “a very weighty consideration indeed” and he said at paragraph 28 that the judiciary “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 is clear to us that this is not a case where the decision to remove is outside the scope of decisions open to a reasonable Secretary of State concerned with enforcing immigration control.
10. In reaching this conclusion we bear in mind that the Secretary of State recognises that a person’s prolonged stay in the United Kingdom, including an unlawful stay, should sometimes result in that person being permitted to remain even though he or she is not qualified under the immigration rules. There are well known policy concessions to deal with such events. It was not suggested that this claimant came within the terms of any such policy and there is no reason to think that he does. He has not been in the United Kingdom for long enough for them to apply.
11. In the absence of special circumstances it seems to us most unlikely that a person who does not qualify under the concessions to remain will ever be able to show that a decision to remove him is unlawful unless it can be shown that the concessions themselves are unlawful. This was not argued before us and is not a submission that we would expect to succeed.
12. It follows that, although we have considerable sympathy for the claimant, the Adjudicator was wrong and we allow the Secretary of State’s appeal.

Jonathan Perkins
Vice President
19 August 2004