BL (Serbia) v Secretary of State for the Home Department [2007] EWCA Civ 1458

Case No C5/2007/1553[2007] EWCA Civ 1458
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/00138/2005]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 5 th November 2007
Before
LORD JUSTICE WARDLORD JUSTICE LAWS
Between
BL (SERBIA)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr N Moloney (instructed by Messrs Ikie LLP) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal against the decision of the Asylum and Immigration Tribunal (the AIT) promulgated on 23 April 2007 given on what under the current legislative regime is called a second stage reconsideration. On that occasion the AIT dismissed the applicant’s appeal against the refusal by the Secretary of State on 4 April 2005 to grant indefinite leave to remain in the United Kingdom. Permission to appeal to this court was refused on consideration of the papers by Keene LJ on 8 October 2007.[2]The applicant is an ethnic Albanian from Kosovo born on 5 May 1973. She arrived in the United Kingdom on 22 June 1999 with her sister-in-law and her niece. She and her sister-in-law claimed asylum. The applicant’s asylum claim was refused by letter dated 26 February 2000. She appealed against that decision but on 28 June 2001 her appeal was dismissed. On 8 August 2001 she made a further application to the Secretary of State for leave to enter based on rights which she claimed to enjoy under the European Convention on Human Rights. On 18 September 2001 that application was refused. The Secretary of State rejected the submission that the applicant’s removal to Kosovo would violate her rights under Article 3 or 8 of the ECHR. The applicant appealed. Her appeal was dismissed by an adjudicator on 1 May 2002. She appealed further with leave to the Immigration Appeal Tribunal (the IAT). The IAT allowed her appeal by a determination promulgated on 26 November 2002. In paragraph 22 of its decision, the IAT stated: “We are of the opinion that, in the special circumstances of the instant appeal where, not alone [they mean ‘not only’] was there a family life between the appellant and her sister in law, while they were living in Kosovo, and as the family life continued in the United Kingdom, and as the status of the appellant’s sister in law had been settled only three days after the decision in the case of the appellant, we find that, interpreting Article 8 in its broadest sense, as suggested by Collins J in Arman Ali [2000] INLR 89, the return of the appellant to Kosovo would be a disproportionate interference with her family life in the United Kingdom”.[3]There was no appeal by the Secretary of State against that decision. In consequence of the IAT decision on 11 February 2003 the applicant was granted leave to remain until 10 January 2004. I should say that the sister-in-law and niece were granted exceptional leave to remain on 3 December 2002 for a period of four years. In 2004 they were granted indefinite leave to remain and in December 2006, as I understand it, they became British citizens[4]On 17 December 2003 the applicant by her solicitors applied to the Secretary of State for indefinite leave to remain. On 4 April 2005 that application was refused. The decision letter is very detailed. I make no complaint of that. It is summarised in the AIT determination sought to be challenged in these proceedings, namely that of 23 April 2007 as follows:
“16. These reasons may be summarised as follows: (a) It was not considered that the appellant’s relationship with her sister in law was of sufficient proximity to give rise to family life for the purpose of Article 8. Such relationship could be maintained from overseas. (b) Although she was participating in further education and employment in this country, those were not reasons for granting further leave to remain.”
[5]So the Secretary of State refused the application for indefinite leave. The applicant lodged an appeal against that decision of 4 April 2005. It came before an Immigration Judge (not of course an adjudicator, because by now the current legislative system was in force). That was on 22 June 2005 and in his determination promulgated on 13 July 2005 the Immigration Judge allowed the appeal. Again it is convenient to set out the summary of this decision given by the IAT in their determination on 23 April 2007:
“19. …In this determination the Immigration Judge made the following findings: (a) Since no evidence had been produced to disturb the findings made by the IAT that there was a family life between the appellant and her sister in law, she had an established private and family life. (b) There were no insurmountable obstacles to the family returning together to Kosovo. (c) The appellant’s vulnerability as a single woman was ‘a truly exceptional feature’ and the decision to refuse the appellant a variation of her leave was disproportionate.”
[6]On 18 July 2005 the Secretary of State applied for a reconsideration of that decision by the Immigration Judge. On 21 July 2005 a Senior Immigration Judge ordered a reconsideration, essentially on the basis that the Immigration Judge’s decision could not sit with this court’s decision in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105. At a first stage reconsideration hearing the Immigration Judge held on 14 February 2007 that there was indeed a material error of law in the adjudicator’s earlier determination and directed a full rehearing before an Immigration Judge. In his determination of 23 April 2007 now sought to be challenged, Immigration Judge Trethowan noted (paragraphs 32 and 45) that it was conceded for the Secretary of State that it would not be reasonable to expect the applicant’s sister-in-law and niece, by now British citizens, to return to Kosovo. The Immigration Judge referred to the earlier conclusions of the IAT in November 2002. He said this:
“43. …In November 2002 there was a finding by the Immigration Appeal Tribunal that there was family life between the appellant and her sister in law and that removal would amount to a disproportionate interference with that family life. The respondent did not appeal that decision, and I cannot go behind it. I have to look at the situation as it is at the time of the hearing and assess the nature of the relationship between the appellant on the one hand and her sister in law and niece on the other in deciding whether or not there is a family life between them. On the basis of the evidence before me it is clear that not only has there been no change in the nature of their family life since the decision of the Tribunal in 2002, but it is probable that the relationship has strengthened in the period of over four years since that decision. Further, the level of private life the appellant has in this country has also increased as a result of the time that has elapsed. She has been able to continue her education and obtained employment. I therefore find that the appellant has a protective right to a private and family life. I further find that the proposed removal would be an interference with that right and that such interference would have consequences of such gravity as potentially to engage Article 8. It has not been argued that it is not in accordance with the law or necessary. The issue therefore is whether or not it [he means, of course, removal] is proportionate.”
[7]The Immigration Judge proceeded (paragraph 44) to indicate that in assessing proportionality he had borne in mind the earlier findings of the IAT on proportionality. He said:
“I am not bound by them as the decision was based on the situation of the applicant at the time of the Tribunal’s decision.”
[8]He proceeded to hold for factual reasons essentially given in paragraph 45 that although the applicant’s right to family life would be interfered with by her removal to Kosovo such removal would not be disproportionate.[9]Now it might very well be said that this conclusion taken on its own is wholly justifiable. My difficulty is with its relation to the earlier IAT decision of November 2002. The applicant, by counsel, relies on various passages from Devaseelan v Secretary of State for the Home Department [2002] UKIAT 007-02 as showing that an earlier determination should be regarded as settling issues that arise in a later appeal in the absence of new evidence or different facts. Now here it may well be said that on the AIT’s own findings in April 2007 the applicant’s claims to family life in the United Kingdom were if anything stronger than in 2002 and there is nothing to suggest that removal would be proportionate now if it was not proportionate then. For my part I would accordingly give leave on the footing that the applicant is entitled to have the full court consider the impact as a matter of law of the 2002 decision on the decision making process in 2007. I do so essentially because I cannot find in the determination of April 2007 any reasoning that justifies the Immigration Judge in taking a different view of proportionality by comparison with that taken in 2002. He may have been entitled to do that, but he has not said that he disagrees with the 2002 decision. He has not deployed new facts adverse to the applicant. In those circumstances it seems to me that the reason here is arguably faulty and as I have said I would grant permission.[10]So would I. I agree with my Lord and his reasons for giving permission and so you may have it.

Order

Application granted.