The decision

HD (Long _ Unlawful _ Residence _ Proportionality) Croatia [2004] UKIAT00051


Date of Hearing: 9th December 2003
Date Determination notified:
23rd March 2004

The Honourable Mr Justice Ouseley (President)
Mr P R Moulden
Mr P R Lane




Secretary of State for the Home Department

For the Appellant: Mr P Nathan, instructed by Sutovic and Hartigan
For the Respondent: Mr G Phillips, Home Office Presenting Officer


1. This is an appeal against the decision of an Adjudicator, Mr W Hanbury, promulgated on 5th February 2003, whereby he dismissed the Appellant’s appeal against the decision of the Secretary of State in a letter dated 22nd November 2001 to refuse her permission to remain in the United Kingdom on the basis that her return to Croatia would be a breach of her Article 8 rights under the ECHR. The appeal to the Adjudicator was brought under section 65 of the Immigration and Asylum Act 1999.

2. The Appellant is a citizen of Croatia born on 27th November 1970. She arrived in the United Kingdom on 14th February 1992 as an au pair and was granted leave to remain until 14th February 1994. On 29th July 1993, she sought asylum but this was refused in a letter dated 20th January 1994 and a subsequent appeal was dismissed in July 1994. No appeal was brought to the Immigration Appeal Tribunal. On 30th November 1994, IND wrote to her solicitors saying that because there was no further appeal:

“Your client therefore has no basis of stay in this country and must now leave the
United Kingdom immediately.

If your client fails to embark, they will be liable to prosecution for an offence under
the Immigration Act 1971 … your client will also be liable to deportation … .”

3. In December 1994, the Appellant met the man who is now her husband, “Mr D”. According to the statement of 11th January 2003 placed before the Adjudicator, she had met him in December 1994 and “subsequently” moved in together and lived as common-law partners. She did not at that stage want to get married because she wanted to be sure that her potential husband would be committed to the marriage for life. In his statement, her husband said that they moved in together almost straight away in December 1994. Unlike his wife, he is a Serb from Croatia who obtained exceptional leave to remain in about 1997 and because a British citizen in 2001.

4. In March 1996, IND again wrote to the Appellant through her solicitors in the same terms in which they had written on 30th November 1994. In October 1996, the Appellant wrote to the Respondent seeking to rely upon her relationship with Mr D as a basis for deferring removal action while his asylum claim was considered. It was treated as an application for leave to enter. This matter was not dealt with by the Secretary of State until after he had received further communication from the Appellant stating, as indeed was the case, that on 1st March 1999 she had married Mr D. This had led to a further application to stay. In a letter of 16th August 2001, the application was refused. The Secretary of State said that she had remained unlawfully in the United Kingdom and had been served with the relevant notice to a person subject to administrative removal, which made her liable to detention and summary removal. It was said she had overstayed her permitted leave for seven years and five months. She did not fall within the Immigration Rules.

5. The Secretary of State referred to guidelines which he had laid down for dealing with marriage applications from overstayers in DP3/96. These guidelines say that grants of leave to remain exceptionally, on the basis of a marriage, can be made where the Secretary of State is satisfied that the marriage is genuine and subsisting, that it pre-dated the service of an enforcement notice by at least two years and that it would be unreasonable to expect the settled spouse to accompany his or her spouse on removal. This case was said not to meet the necessary criteria, although it was accepted that the marriage was genuine and subsisting. For the purposes of his policy, he said that the service of a notice warning a person of their liability to removal was deemed to be the initiation of enforcement action. Accordingly, the marriage in March 1999 did not pre-date by two years the service of the notice of liability to removal.

6. The Secretary of State’s decision then considered whether there were compassionate circumstances such as to allow a concession on the grounds of marriage. He said that it would be reasonable to have expected both husband and wife to have know of the Appellant’s unlawful status and that the existence of the marriage within the United Kingdom would be precarious. He concluded that any claimed interference with Article 8 would be entirely justified “in the pursuance of the legitimate aim of maintaining a firm immigration control”. He accepted that he could not expect the
husband to accompany her to Croatia as he was a refugee, although he could go to public expense should he wish. Alternatively, he could remain in the United Kingdom and support any application for her to return as the spouse of a person settled here. He accepted that she would have established a degree of what could qualify as private life in the United Kingdom, but did not consider that that was sufficient to be an exceptional factor justifying allowing her to remain further. Balancing all matters, he concluded that the action of removing the Appellant would be proportionate to the social need.

7. On 7th and 21st September 2001, the Appellant’s present solicitors, Sutovic and Hartigan, made further representations on the basis of policy DP3/96, her husband’s citizenship and submitting that it would be a breach of Article 8 ECHR for the Appellant to be forced to leave the United Kingdom. Somewhat curiously, they say in the letter of 7th September 2001 in the IND that they had taken over the case from previous solicitors on 14th November 1995 but that the Appellant had told them that her previous solicitors had sought Judicial Review in February 1995 following the refusal by the Secretary of State in November 1994 to exercise his discretion in her favour as she had asked. The action was withdrawn on 2nd November 1995. In January 2002, the present appeal was launched against the refusal of 22nd November 2001.

8. Although it was said in the appeal that the Appellant was a refugee, the case essentially turned on breach of Article 8. No material was supplied to suggest that she was a refugee as a result of any change in circumstances following the refusal of her asylum claim in 1994. The Adjudicator was aware that she had a young child born on 24th July 2002, a factor which had not been before the Secretary of State when he made his decision. The child was six months old at the date of the appeal before the Adjudicator. She had told him that she could not return to Croatia to apply for entry clearance because of her child whom she had to look after, because both she and her husband had jobs, but that they had also been aware of her precarious immigration status when they married. She had parents and a sister in Croatia with whom she could stay.

9. It was submitted to the Adjudicator on behalf of the Appellant that nothing had been done about removing her until 2001 and that should benefit the Appellant. Enforcement action had not commenced until 16th August 2001 and so the Appellant fell within the guidance in DP3/96 because she had married her husband in March 1999. Removing her would be disproportionate and would place an excessive burden on her family life.

10. The Adjudicator said that the burden of proof upon the Appellant was to satisfy him to the standard of serious possibility or reasonable likelihood that her rights under the ECHR would be infringed by her return to Croatia. He said that it was not part of his duty to stand in the shoes of the Secretary of State and that the Secretary of State was entitled to take into account the need properly to enforce immigration control when dealing with an interference with an ECHR right. The Adjudicator concluded that there had been two attempts at enforcement of the Appellant’s removal: first by a
letter dated 30th November 1994 and secondly by the letter of 12th March 1996. Those proceeded the recent decision to issue removal directions. He rejected the claim that the Appellant fell within any of the guidance issued by the Secretary of State. Rather than blame the situation on the Secretary of State, the Adjudicator concluded that the fact that the Appellant had ignored requests for her to leave the United Kingdom if anything reflected badly on her. Resources might have inhibited her removal. She had married and had a child with full knowledge of the precariousness of her immigration status. He concluded that it was a proper, proportionate and reasonable step for her to be required to leave the United Kingdom to make an application for entry clearance from Croatia.

11. In conclusion, the Adjudicator said:

“The Appellant has established a private and family life in the United Kingdom which will be interfered with by her removal. However, her removal is likely to be short lived and she can be accommodated with relatives living in the country of nationality. I conclude that the decision of the Secretary of State was necessary and proportionate to the requirement for proper enforcement of immigration policy and therefore within the terms of Article 8(2) of the ECHR.”

12. Before the Tribunal the Appellant relied on a statement from her husband, which had not been before the Adjudicator. In it he described how she worked as the manager of a hotel earning a salary which he and she needed in order to pay the mortgage on their house, which they had bought in 2002 (this was the second house which they had bought to live in). The two of them worked in such a way that one could look after the child, while the other was at work. He referred to the impact which her being forced to leave the country would have on their ability to pay the mortgage and to look after the child. He said that they would not be able to pay the mortgage without her contribution and that he would have to give up his job in order to care for the child because he could not afford to pay for professional childcare. He also said that the Appellant’s brother had been granted asylum in 2002 and was living in the house with them. He had a job and could not return to Croatia as an ethnic Serb. The Appellant’s case was supported by references from her and her husband’s employers who commended their qualities in a number of respects.

13. Mr Nathan, for the Appellant, made it clear that he was not taking issue with the decision of the Tribunal in SK [2002] UKIAT 056132 or indeed with the Tribunal’s later decision on the return of Serbs to Croatia in DK [2003] UKIAT 00153K Croatia. Nonetheless, he said that the problems which it was recognised that Serbs would face upon return formed a background to the consideration of this case. That was because the husband was a Serb, although the Appellant herself was not. He relied in particular upon Article 8, and in reality it was the question of the proportionality of the interference with the Appellant’s family and private life which was at issue. He referred to Boultif v Switzerland [2001] 33 EHRR 50, in which in paragraph 48 the ECtHR referred to a number of matters which were relevant, particularly in the context of the removal of criminals. He also referred to the decision in Razgar [2003] EWCA Civ 840.

14. He replied, in his submissions on proportionality, upon the length of the Appellant’s stay in the United Kingdom, the Respondent’s delays in determining her marriage application, the obstacles to her husband’s return with her to Croatia, their work records, the potential loss of the family home and the Respondent’s own policy. He contended that the Respondent had been aware of the relationship and ought to have applied to it the policy DP2/93 which considered the position of those who were in a common-law partnership akin to a marriage. The Secretary of State had considered the position only in relation to his policy on marriage. DP3/96 did not deal with all the relevant circumstances as covered by DP2/93 and could not be regarded as wholly superseded.

15. Mr Nathan referred to an extract from Butterworths Immigration Law Service page D63, paragraph 501, footnote, which referred to the case of Wilby 8th April 1999 in which the Tribunal had held that DP2/93 had not been totally revoked by DP3/96 to the extent that DP2/93 dealt with relationships outside marriage. The footnote also referred to statements of Government Ministers of 22nd February 1996 and October 1997 and 11th March 1998. The latter was said to have stated that common-law relationships brought to his attention prior to the coming into force of DP2/96 should be dealt with under DP2/93 notwithstanding the silence upon this point of the transitional provisions in paragraph 10 of the DP3/96. The footnote suggested that Wilby was inconsistent with other Tribunal jurisprudence and ought to have concluded that the Secretary of State did not err in failing to consider an application under DP2/93.

16. Mr Nathan also put reliance on decisions such as Shala v SSHD [2003] EWCA Civ 233, in relation to delay and failure of the Secretary of State to take steps to give effect to the enforcement action which had apparently decided upon. Essentially, Mr Nathan submitted that because the strength of the case for the grant of entry clearance to the Appellant was so strong, there was no benefit in compelling the Appellant to leave the country for what would be a fairly short space of time, but one which would be potentially sufficient to cause the loss of her job and home and to disrupt the life of a young child, who was now of the order of sixteen months old.

17. Mr Phillips, for the Respondent, said that it was clear that the Secretary of State was entitled to apply DP3/96 and that the Appellant did not fall within it. He had not supposed that the husband would or could go to Croatia. He said that it was for the Tribunal to determine proportionality for ourselves because of the change of circumstances.


18. It is clear that the Appellant does not come within the terms of policy DP3/96 because the couple had not been living together continuously since their marriage for at least two years before the commencement of enforcement action. Enforcement action includes a specific instruction to leave with a warning of liability to deportation if the subject fails to do so. Both the letters of 30th November 1994 and 12th March 1996 constitute such enforcement action.
19. Secondly, even if the common-law relationship was to be equiparated with marriage for these purposes, which it was not, the common-law relationship had not subsisted for two years before the enforcement action. It started after the first enforcement action of November 1994 and would have only run for fifteen months by the time of the second enforcement action in March 1996. Even if DP2/93 had been in force at the time of their application, they would not have fallen within it.

20. We have examined the Ministerial statements referred to in the Butterworth’s footnote at D63. The statement of 22nd February 1996 is uncompromising in its terms. Foreign nationals applying to remain on the basis of common-law relationship could expect, with immediate effect, that their applications would be refused. ILPA was told that they would all be refused. DP 2/93 was completely superseded and Wilby is wrong, as has been said in other Tribunal decisions, in treating it as having lived a half-life; common-law relationships were deliberately excluded from the scope of the relationships, by a concession outside the Immigration Rules. However, none of the terms of that concession apply or were suggested to apply to this Appellant. The provisions of DP 2/93 clearly do not survive the various provisions in the concession, and its subsequent variations.

21. Accordingly, neither the Immigration Rules nor any extra-statutory concessions assist this Appellant.

22. However, although the position under the Rules and the Government’s policy is very important, the question of Article 8 and of proportionality needs to be considered. It is clear that the Appellant has over time established her family and private life in the United Kingdom with her husband and now her child. Her removal to Croatia would be a very significant interference with it, even on the assumption that she would take the child to look after it rather than leave the husband to do so. The removal would probably be temporary, although not made easier by the possible financial implications. How long it would take to obtain entry clearance was unknown but it is unlikely to be less than several months.

23. It is necessary then to consider whether the interference is proportionate to the public interest in the maintenance of the system of immigration control, bearing in mind the importance of that system. In such an analysis, the existence of Rules and concessions which deal with relationships of the type involved here, even though this case does not fall within their scope is relevant to the proportionality of the decision. They can properly be regarded at the view of the legislature and the executive as to what is proportionate, though they do not cover every eventuality. They indicate what factors are important including enforcement. Accordingly, it would require a strong case for a decision to fall outside the Rules and concessions and yet for removal to be held disproportionate.

24. The approach to proportionality has been considered by the Court of Appeal in Edore v SSHD [2003] EWCA Civ 716 INLR 361, Razgar v SSHD [2003] EWCA Civ 840, [2003] INLR 543, Shala [2003] EWCA Civ 233. The issue
normally is whether the Secretary of State’s decision is within the limits of the decisions reasonably available to him. Where he had made no decision on proportionality or the facts relied on have been appraised differently or have changed, it is for the Adjudicator and Tribunal to consider the issue. The Tribunal considers, for the reasons set out in [2004] UKIAT 00024 M (Croatia) Starred, paragraph 28. This says:

“The starting point should be that if 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. However, where the Secretary of State, eg through a consistent decision-making pattern or through decisions in relation to members of the same family, had clearly shown where within the range of reasonable response his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise 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 of proportionality. We cannot think of one at the present; it is simply that we cannot rule it out.”

25. The Secretary of State reached a view on proportionality, but at the time when he did so he did not know that the Appellant would become the mother of a child. Nor did he know the impact which her removal might have on the home life of the Appellant and her husband in the way now set out for the Tribunal.

26. The Adjudicator made his decision knowing of the birth of the child, but perhaps not having all the financial information which we have, though it is fairly nebulous and the implications of the Appellant’s removal do not appear to have been investigated with the mortgage lender. Indeed, it is almost inevitable given the time which cases take on appeal from the Home Office to the Adjudicator and from the Adjudicator to the Immigration Appeal Tribunal that there will be changes in circumstances which the Secretary of State does not directly consider. His position is reflected, if properly reflected at all, in the continued resistance of his representatives to the allowing of the appeal.

27. The husband might now be able to return to Croatia to live with the Appellant but no such case has been put forward by the Respondent. He has instead accepted that his refugee status and now British citizenship means that the husband cannot be expected to return to Croatia with his wife. Whilst the situation for a Serb returning to Croatia is not in general such that they should be returned, it is nonetheless sufficiently tough for it to be unsurprising that a Serb would not return, if he had refugee status and British citizenship. Accordingly, there would be an interference in the family life of the Appellant and a separation one way or the other of the child from one or other parent. The Appellant does have some family in Croatia, although will not have had much contact with them for some time.

28. The expectation of the Respondent is that upon such return by the Appellant she will be able to make an application for entry clearance and that it would be granted. The Respondent does not deny the genuineness of the marriage and he has raised no objection by way of suggesting that the couple would be unable to maintain themselves if they were to stay, although the impact of removal might make it more difficult for them to maintain themselves. They would be potentially disadvantaged by the fact of removal in pursuing the application for entry clearance. Her husband, as sponsor, might find himself less well-placed to support her entry. The possible loss of their home, which clearance is an important factor, as is the potential loss of job and of contact between the child and one or other of its parents. It is now a child of some sixteen to eighteen months.

29. We do not give a great deal of weight to the length of time which the Appellant has been in this country, since 1992, even though for her it is almost all her adult life and one third of her life so far. This is because both in November 1994 and in March 1996 she was clearly required to leave the country, but remained unlawfully in circumstances where she was liable to prosecution. These circumstances are very different from those in Shala where the delay in Home Office decision-making and the development of relationships in the meantime combined to deprive the Appellant of the right to an in-country application for variation of leave.

30. Greater weight has to be given however to the genuineness and duration of her relationship with a man who is now her husband. He is settled in this country, first as a refugee and then as a British citizen from 2001. The relationship which in its early years might have been thought uncertain because, as the Appellant put it,, she did not want to get married until she was sure that the relationship would endure, has now blossomed into marriage without there having been, by March 1999, any further enforcement action taken by the Secretary of State. It is true that the child was conceived after the refusal letter of 16th August 2001, for he was born on 24th July 2002. But timing which in other cases might give rise to suspicions has to be seen here as the natural consequence of a relationship which had, by that time, lasted six or so years and by which time the Appellant was over thirty.

31. Nonetheless, through all its development from living together, to marriage, parenthood, mortgages and financial interdependency, the Appellant’s position has been known to her and her husband to be precarious. Indeed, it has been more precarious than most, because her position was not so much uncertain as positively determined against her and she was liable to removal at any time.

32. The troubling feature in this case has been the failure of the Appellant to accept the law in relation to immigration control and the way in which she has stayed in defiance of it. The Adjudicator right gave significant weight to that factor. It is the factor which has caused us the greatest anxiety in considering this matter. The duration of the Appellant’s stay in the United Kingdom in defiance of immigration control does her no credit, although she
never absconded and her details, so far as we can tell, have always been available to the Home Office, and the Home Office has taken no active steps to bring about her removal. There are resource implications for the Secretary of State, and in examining proportionality, the lack of action for so many years is relevant in judging whether the full rigour of the maintenance of the system of immigration control should be visited upon this family in this instance. We do not consider that, in general, Appellants should be able to advance their cause by relying on their unlawful presence in this country and their unwillingness to comply with its laws.

33. Edore shows that even flagrant and deliberate breaches of immigration control do not themselves always override the provisions of Article 8(1). But the decision of Mahmood v Secretary of State for the Home Department [2001] Imm AR 299, paragraphs 23 and 26 per Laws LJ, and paragraphs 55, 65 and 66 per the Master of the Rolls, underlines the significance of adherence to the system of entry clearance, of the precariousness of the position of one party to a relationship and that a requirement which would cause a break in contact with husband or young child is not for that reason a basis for holding a decision as disproportionate. Nor is the fact that the later application might be successful.

34. This is another case in which two views can be taken about proportionality, depending on the weight given to the interests of the family and the disruption for this family inherent in even a relatively short separation, or the weight given to the enforcement action which in effect the Appellant defied, and the precariousness of the her position as the relationship developed in that light. She has never come within the scope of any Rule or concession. It has never been thought appropriate that they should cover her, because she has refused to comply with enforcement action.

35. We have concluded that the Respondent cannot be expected to have to undertake physical removal in order to avoid the argument that family life has become established and would be disrupted if removal now were physically enforced. That would be to give too great an advantage to flouting a law where inadequate resources to enforce it physically in each case were available. It would have to be a very much stronger case for someone to be able to rely on his or her defiance of the law as the basis of a claim to stay. Edore was one such case. Here, closer to Mahmood, the Appellant is not likely permanently to lose contact with her husband, or to be unable to take the child with her. She had family in Croatia and is a Croat, not a Serb. It is to be hoped that any application for entry clearance will be processed rapidly.

36. However, notwithstanding the significant disruption to her family life, we do not consider that the decision to remove is outside the range of proportionate actions open to the Secretary of State, whatever view we might have come to. It is not unlawful therefore for her to be removed. We also give considerable weight in that context to the Adjudicator’s assessment on not very different material.
37. This appeal is dismissed.