The decision

Heard at Field House

QN (Delay - Not Within Shala) Serbia and Montenegro [2004] UKIAT 00015
On 20 January 2004


Corrected transcript of decision given at hearing
Signed: 20.01.2004
Issued: 06/02/2004


Mr J Freeman (chairman)
Mr D J Parkes (acting vice-president)
Mrs W Jordan






For the claimant: Mr M Shamim, counsel instructed by K Zaman Ali & Co
For the respondent: Miss J Sigley


This is an appeal by an Albanian citizen of Kosovo against the decision of an adjudicator, Mr K St.J Wiseman sitting at Epsom on 12 May 2003. The claimant arrived here on 31 August 1999 and claimed asylum the next day. He did not receive a decision from the Home Office until 2 January 2002 and, for no good reason that we can see, the appeal bundle was not sent to the appellate authorities by the Home Office until 19 February 2003. The adjudicator’s decision eventually went out on 18 June 2003, so could only be challenged on a point of law. Leave was given on the Article 8 grounds only and specifically on the point of the delay by the Home Office. We shall be considering that issue on the whole of the evidence before us.

2. The adjudicator dealt as follows with the leading decision on this kind of point which is Shala [2003] EWCA Civ 233:

11.5 It is an important case but it still does stress the balancing exercise that has to be carried out under Article 8(2) particularly in a case where there has been a marriage and perhaps a family created during the long period of delay.
11.6 It may perhaps be arbitrary but the appellant in this case has simply got on quietly with his life and has obviously worked responsibly. He has not however entered into a fresh relationship let alone marriage or urged anything in particular upon me in respect of Article 8 through his representatives. Of course in the light of Arben Shala there are going to be clearly arguments put forward in different cases as to what constitutes unreasonable delay in the case of a hard pressed government department. I perhaps only need say that the delay is quite considerable in this case but it has had only modest repercussions.

3. The case put forward for the claimant by Mr Shamim revolves around his private rather than family life. It is essentially set out in the letters before us from the managing directors of two building firms for which he has worked, who speak about him in glowing terms, clearly regarding him as entirely trustworthy and someone who fits in well with his fellow workers and with customers. They make the point that his employment has been entirely legal throughout. As the adjudicator pointed out, this claimant has not acquired a family in this country, but has simply got on with his life. We are entirely prepared to assume that he has made the usual social as well as work contacts.
4. It does not require any reference to authority to show that may amount to a private life in this country, interference with which by removal does need to be considered in terms of article 8. The question is whether such interference would be justifiable in light of what the Court of Appeal has (in Djali [2003] EWCA Civ 1371) called “the imperative and overriding interest of immigration control”. So we return to Shala. That was a case where the claimant had arrived and claimed asylum in June 1997, been refused in July 2001 and his appeal dismissed in November that year. He had started living with the lady in his life some time in 1998; so there had been considerable delay even after that had happened.
5. The crucial difference in our view between this case and that of Shala turns on the time when the claim was made in the two cases. In Shala the claim was made when, as the Court of Appeal note at paragraph 9 of their decision, the Home Office policy was such that someone from Kosovo would have been granted refugee status, or at least exceptional leave to remain. This policy came to an end, as they say there, in mid-1999, after the NATO intervention in June that year. If the Home Office had decided this claimant’s case within a reasonable time after he made his claim, which is to say towards the end of 1999, then no such policy would have applied.
6. The ratio of Shala can be seen at the end of paragraph 15,
The appellant did have a legitimate claim to enter at a time when on any reasonable basis his claim should have been determined. Put another way the fact that delay by the Home Office has deprived him that advantage should be seen as an exceptional circumstance which takes the appellant’s case out of the normal run of cases where a person with no leave to enter seeks such leave on the basis of marriage.

7. This claimant got on with his life in an extremely sensible way, which does him a great deal of credit, and we also regard it as to his credit that he has not sought to put forward any factitious family-type relationship. However, the Home Office delay has not been to his detriment in the same way as it was in Shala. He can certainly complain about a gross delay by the Home Office in terms of simple maladministration: what he cannot say, as Shala could, is that he would have been granted even exceptional leave to remain, and so been in a significantly better position (in that case, to pursue an in-country marriage appeal), if his case had been dealt with when it should have been.
8. It follows, in our view, that the principle stated in Shala does not apply in this case. The Court of Appeal said themselves that Shala, and we quote here from the judgment of Lord Justice Schiemann at paragraph 24, was “distinguishable from the mass of cases” because of the time when that claimant arrived. We have every sympathy for this claimant; but in our view the adjudicator was entirely justified in coming to the decision that his removal would not be disproportionate to the legitimate purpose of immigration control in terms of article 8, and it follows that the appeal is dismissed.

John Freeman