MARTIN CEBEKHULA MTHOKOZISI v Secretary of State for the Home Department [2004] EWHC 2964 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2004] EWHC 2964 (Admin)Case No Case No: CO/2201/2004Venue Royal Courts of Justice, Strand,, London,, WC2A 2LL
Between
MARTIN CEBEKHULA MTHOKOZISIClaimantSecretary of State for the Home DepartmentDefendant
Before
Mr Justice OwenMr Patrick Lewis (instructed by Dare Emmanuel) for the ClaimantMiss Philippa Whipple (instructed by the Treasury Solicitor) for the DefendantHearing dates: 5 November 2004Date 20 December 2004
[1]Mr Justice OWEN : The claimant is a Ugandan national who was born on 10 October 1982. On 14 January 1996 he arrived unaccompanied in the United Kingdom. He was then 13 years of age. On arrival he claimed asylum; but his claim was not determined by the Secretary of State until 19 May 2000 when his application for asylum was refused.[2]The claimant then appealed under Section 69 (1) of the Immigration and Asylum Act 1999. By a decision promulgated on 9 April 2002, the Adjudicator dismissed the appeal, holding that the claimant had failed to establish a well founded fear of persecution and that his deportation would not amount to inhuman or degrading treatment under Article 3 of the ECHR. The Adjudicator declined an invitation to recommend that the claimant be granted exceptional leave to remain, observing that that was a matter that the Secretary of State might wish to consider.[3]Leave to appeal to the Immigration Appeal Tribunal was refused on 10 May 2002, the Tribunal observing that:
"It is certainly arguable that the Adjudicator has perhaps not given sufficient weight to the age of the applicant and the history of the case. Nevertheless accepting the applicant's case at its best, it is the view of the Tribunal that the conclusions of the Adjudicator were correct and reasonable."
[4]On 21 March 2003 the Refugee Legal Centre, acting on behalf of the claimant, wrote to the Home Office seeking leave for the claimant to remain in the UK on the basis that to return him to Uganda would amount to a breach of Article 8 of the ECHR. It took over a year for the Home Office to reply. By letter dated 22 April 2004 the claimant was informed that the letter of 21 March 2003 " . does not raise any new factors which would cause us to reverse our earlier decision of 2001, and that accordingly the decision to proceed with the claimant's removal from the UK would not breach Article 8."[5]On 26 April 2004 the Refugee Legal Centre wrote again requesting that the Home Office withdraw the refusal of leave to remain in the UK on Human Rights grounds, making express reference to the decision of the Court of Appeal in Arben Shala v Secretary of State for the Home Department [2003] EWCA Civ 233 in support of the request. On 27 April 2004 directions were issued for the removal of the claimant to Kenya. On 6 May 2004 the Home Office replied stating that the further representations had been considered on behalf of the Secretary of State, but were rejected. On 22 October 2004 there was a further letter from the Home Office to the Refugee Legal Centre stating that further consideration had been given to the claimant's Article 8 rights, but that it was still considered appropriate to remove him.[6]The claimant now seeks to challenge the decision to remove him from the UK on the ground that to do so would be a breach of Article 8. THE BACKGROUND TO THE APPLICATION[7]Before considering the grounds upon which the challenge to the decision to remove the claimant is mounted, it is necessary shortly to summarise the factual background. The claimant is an orphan. He told the Adjudicator that his family moved from Kenya to Uganda in 1982 shortly after he was born. His father was a soldier in the Ugandan National Liberation Army who was killed because he supported the Ugandan Government. His mother died of natural causes in 1987. After her death he was cared for by his grandparents who lived in the Soroti region of the Ateso district in Eastern Uganda. He told the Adjudicator that his grandparents were killed by soldiers in late 1995. He said that after the death of his grandparents he went to Kenya to an uncle called Michael. After about two weeks his uncle took him by plane to Paris where he put him on a flight to London; saying that he would follow on another flight. His uncle never appeared in London, and the claimant was spotted at Heathrow airport by an Immigration Officer to whom he told his story, and who advised him to apply for asylum. It is important to note at this point that the Adjudicator did not find the claimant's account of his experiences in Uganda to be readily credible.[8]In any event after his arrival in the UK he was initially placed in a children's home in Hayes where he stayed for three months. He began attending school in June 1996, and in December 1996 went to live with a foster mother, Mrs Joyce Croll, who sadly died in January 2000. His relationship with Mrs Croll and other members of her family including another foster son was described in the letter from the Refugee Legal Centre to the Immigration and Nationality Directorate dated 21 March 2003:
"Martin was extremely close to Mrs Croll and regarded her as his mother. He lived with Mrs Croll, Nigel Keeble (her nephew) and Emmanuel Niyitegeka (another foster son) from December 1996 until January 2000. The length of time spent together and their mutual love and respect has meant that the three boys regarded themselves as brothers . Anita Keeble ( Nigel's elder sister) visited the family frequently and also regards Martin as her brother Anita's son and Nigel's daughter regard Martin as their uncle. Mrs E. Gravestock, Mrs Croll's daughter, also thinks of Martin as family and indeed regards him as a 'last link to my mother' All of these people constitute Martin's immediate family regardless of the lack of blood ties."
[9]When Mrs Croll died the claimant moved to live with another set of foster parents, Margaret and Allan Wainwright, with whom he stayed until July 2000 when he completed his A-levels and with whom he has remained in regular contact.[10]The Refugee Legal Centre's letter of 21 March 2003 was supported by no less than 33 letters from those whom he regards as his family, in particular Margaret Wainwright and Nigel Keeble, and from teachers and friends all of whom speak of the claimant in the most glowing terms. He is plainly a most impressive young man whose progress since arriving alone in this country as a 13 year old is greatly to his credit. His achievements were succinctly summarised in a letter from a social worker employed by the London Borough of Hillingdon who wrote in the following terms:
"Martin arrived in the United Kingdom as an Unaccompanied Minor in January 1996 from Uganda. Shortly after his arrival he was accommodated by London Borough of Hillingdon Social Services under Section 20 of the Children's Act 1989. Martin was initially placed with foster carers and moved to semi-independent living in summer 2001. Martin is close to his foster carers and does still keep in touch with them. Martin attended Uxbridge High School for 5 years. All of his school reports describe him as a very dedicated student who related well to his peers. Teachers described him as a model student, who was polite and well mannered. Martin achieved 11 GCSE's all at the C and above as well as being voted Sports Personality of the year. Martin remained at Uxbridge High School to study for 3 A levels. He was predicted good grades and a career in medicine. Martin's performance deteriorated in the last six months prior to his exam due to anxiety and worry regarding his asylum application. Furthermore the uncertainty of his asylum status has resulted in Martin not being able to plan his future, as partaking in higher education is dependent on immigration status. Martin achieved 3 A levels; chemistry D, biology E, and maths E. Although not being Martin's first choice he is currently doing a course in IT. Martin has lived in the United Kingdom for 7 years and is fully integrated into British society and lifestyles. Considering that Martin was only 13 years old when arriving in the United Kingdom, he has spent most of his teenage years here and identifies with British Culture and the British way of life. Martin used the International Red Cross tracing service to try to find relatives in Uganda, without any success. The prospect of moving back to a country, which is almost unknown to him, has caused Martin a great deal of distress. Martin is a very pleasant and intelligent young person who has a lot to offer to British Society."
[11]As the social worker pointed out the claimant has no family in Uganda. He has no family or social life outside the UK.[12]The claimant seeks to challenge the decision of the Secretary of State to remove him from the United Kingdom on the basis that he has established both a private and a family life in the United Kingdom, such as to engage Article 8 of the ECHR, and that he has established both a private and family life as a direct consequence of the failure of the Secretary of State to determine his application for asylum for a period of 4½ years. Mr Lewis, who appeared for the claimant, further submitted on his behalf that had his application been determined whilst he was still a minor, the Secretary of State would have followed his policy of granting exceptional leave to remain to minors, and that having been granted exceptional leave to remain, he would then have been entitled to apply for indefinite leave to remain, with the likelihood that it would have been granted. Accordingly it is submitted that he has been very seriously disadvantaged by the failure on the part of the Secretary of State to determine his application for asylum within a reasonable period. Mr Lewis submits that the extent and consequences of the delay on the part of the Secretary of State, both in terms of it having resulted in his establishing a private and family life and in terms of his having lost the opportunity to be granted indefinite leave to remain, amount to such exceptional circumstances that it would be wholly disproportionate for him now to be removed to Uganda where he would be a complete stranger.[13]It is accepted on behalf of the Secretary of State that the claimant has an established private life in the United Kingdom, but denied that he has a family life within the meaning of that term in the convention jurisprudence. Secondly it is submitted that notwithstanding the delay in determining the claimant's asylum application, the interference with his family life that will inevitably result from his removal from the United Kingdom is lawful and proportionate.[14]Thus the central issue on this application is whether the Secretary of State erred in his approach to the delay on his part in determining the claimant's asylum application and its consequences, in his decision to direct the claimant's removal. But it is first necessary to determine the preliminary issue of whether the claimant has an established family life within the meaning of Article 8, or whether his removal will simply result in interference with his private life. The 'family life' issue[15]The Secretary of State rejected the submission that the claimant has an established family life in his letter of 12 October 2004 in the following terms – "It is accepted that a relationship with foster parents is capable of amounting to family life, depending on the extent and existence of close personal ties. However your client is now 21 years old and is no longer living with foster parents. There is evidence that he remains in contact with members of his former foster families, but there is no dependency between him and any person(s) by whom he was formerly fostered. He no longer lives with his fosterers. Article 8 was in fact first raised on 21 st March 2003 (in the letter from the Refugee Legal Centre on your client's behalf), by which time your client was 20 years old, and had been out of foster care for almost two years. It is therefore not accepted that your client's relationship as an adult with his former foster families amounts to family life. The Court of Appeal in Kugathas said that:
"because there is no presumption of family life a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than the normal emotional ties ..." it is therefore only in exceptional cases that family life will be established between an adult child and his parents. Your client's evidence does not demonstrate anything more than normal emotional ties with his former foster families here."
[16]In Kugathas [2003] EWCA Civ 31 the Court of Appeal addressed the issue of what amounted to family life within the meaning of Article 8. In the course of his judgment

Lord Justice Sedley said:

"14. Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196 . At page 198 of the Report, the Commission said: "generally the protection of family life under Article 8 involves co-habiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency involving more than the normal emotional ties."
This, while it is not black-letter law, sets out what I would accept is a proper approach. 17. Mr Gill says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning 'support', in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, 'real' or 'committed' or 'effective' to the word 'support', then it represents in my view the irreducible minimum of what family life implies. 18. I would add, for completeness, that it is probable that the natural tie between parent and infant is a special case which may in some cases supersede any need for demonstrable measure of support: see Boughanemi v France [1996] 22 EHRR 228 at paragraph 35. 19. Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment, enough to constitute family life. Most of us have close relations with whom we are extremely fond and whom we visit or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8."[17]The issue was also addressed by

Lady Justice Arden at paragraphs 24 and 25 of the judgment:

"24. There is no presumption that a person has a family life, even with the members of a person's immediate family. The Court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with other members of the family with whom he claims to have a family life. 25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 . Such ties might exist if the appellant were dependent on his family or vice-versa "
[18]It is clear from the evidence before the Secretary of State that the claimant has a very close relationship with those whom he treats as his surrogate family, in particular his former foster parents, Mr and Mrs Wainwright, and Nigel and Anita Keeble, Emmanuel Niyitegeka and Mrs Gravestock. But in my judgment the Secretary of State was fully justified in his decision that the claimant does not have a family life in the UK for Article 8 purposes, given that he is a grown man who left his last foster family in July 2001 when he was 18. To adopt the phraseology of Lady Justice Arden, what exists between the claimant and those whom he regards as his family are the normal emotional ties. There is no evidence of dependency. I was informed in the course of the hearing that following his release from custody while awaiting the outcome of this application, the claimant has returned to live with his former foster parents, but in my judgment that was clearly a matter of convenience that does not affect the position.[19]Accordingly the claimant has not demonstrated that the defendant erred in law in his conclusion that the claimant does not have a family life within the meaning of Article 8. The Issue of Delay[20]The claimant claimed asylum on his arrival in the United Kingdom in January 1996. His application was refused 4½ years later on 19 May 2000. No reason or explanation for that delay has ever been given, but the claimant bears no responsibility for it.[21]It is conceded on behalf of the Secretary of State that had the application been determined before the claimant reached his 18 th birthday on 10 October 2000, then in accordance with the Secretary of State's policy with regard to unaccompanied minors, he would have been granted exceptional leave to remain. The relevant policy is to be found in the Asylum Policy Instructions Chapter 2, Section 5 under the heading ' Children '. "3.3. Consideration of applications Applications involving unaccompanied children should be handled sensitively and cautiously at all stages it will rarely be acceptable to hold an application from an unaccompanied child without any action being taken on it for longer than six months. 3.5. Reception arrangements and return ability Ministers have agreed that no unaccompanied child will be removed from the UK unless we are satisfied that adequate reception and care arrangements are in place in the country to which s/he is to be removed . If the asylum application is to be refused and it is impossible to make satisfactory reception arrangements for an applicant who is still under 18 the presumption should generally be to grant exceptional leave to enter or remain."[22]Secondly it is accepted on behalf of the Secretary of State that had the claimant been granted exceptional leave to remain, " the probability is that the claimant would in due course have become eligible for indefinite leave to remain (ILR) because of the time elapsed in the UK with ELR"[23]Thus the consequence of the unexplained and apparently inexplicable delay in determining the claimant's application is that he was not granted exceptional leave to remain, and lost the opportunity to apply for indefinite leave to remain, which would probably have been granted.[24]It is submitted on behalf of the claimant that in such exceptional circumstances his removal to Uganda would be disproportionate, and therefore not justified under Article 8(2).[25]Mr Lewis sought to rely on the decision of the Court of Appeal in Shala , a decision that it is necessary to consider in some detail. The claim raised the issue of whether the Immigration Appeal Tribunal was entitled to reject an appeal brought under section 65 of the Immigration and Asylum Act 1999 on the ground that the interference with the appellant's right to respect for his family life was proportionate and justified under Article 8(2). The appellant was an ethnic Albanian from Kosovo who had sought asylum on his arrival in the UK in June 1997. His application was not dealt with until June 2001, when he was informed that it was refused. It was common ground that had the application been determined within a reasonable time, the appellant, as a refugee from Kosovo, would have been granted refugee status or at least exceptional leave to remain, that being the Secretary of State's policy up until mid-1999. In the period that had elapsed since his arrival in the UK, the appellant had established a family life within the meaning of Article 8, having been living as man and wife with a woman with two young children to whom he behaved as a father. The principal judgment was given by Keene LJ. Paragraphs 11-13 and 16 are in the following terms -"11. It will be clear from what I have said earlier in this judgment that this case turns on the human rights issue. The asylum arguments have been overtaken by events. It is equally clear that the removal of the appellant from this country would give rise to an interference with his right to respect for family life under Article 8. That, of course, does not mean that there is necessarily a breach of that Article. Such an interference may be justified by the public authority in question, as provided for by paragraph 2 of the Article. There is no issue as to the decision in the present case being one taken in accordance with the law and in pursuance of a legitimate objective, namely the maintenance of control over immigration. But what is in issue is whether the decision met the requirement of proportionality, so that it struck a fair balance between that legitimate objective and the appellant's right under Article 8.12. The legal principles concerning the approach to be adopted by the Courts on proportionality on cases such as this have been considered on a number of occasions. The House of Lords in R (Daly) v Secretary of State for the Home Department [2001] UKHL26 ; [2001] 2AC532 has made it clear that proportionality requires the Court to do more than merely apply the traditional Wednesbury test. While its task is still that of review, rather than one of remaking the decision on its merits, the review will, when Human Rights issues are involved, be a more intensive one. As Lord Steyn said at paragraph 27 of Daly:
"First, the doctrine of proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in so much as it may require attention to be directed to the relevant weight accorded to interests and considerations"
. But it needs to be borne in mind that what both Lord Steyn (at para.28) and Lord Cooke of Thornton (at para. 32) emphasised was that the intensity of review depends on the subject matter. In some areas of decision-making, the Courts will allow the decision-maker a greater degree of deference or discretion than in others. I myself would endorse the principles enunciated by Laws LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 ; [2002] 3 WLR 44 at paras. 83 – 87, where he sought to give guidance on how the degree of deference was to be determined in various situations. His third principle (para. 85) was that:
"greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the Constitutional responsibility of the Courts."
He went on to express the view, with which I concur, that the former category includes the security of the State's orders, including immigration control, para. 86. 13. That is a standpoint which had been adopted by this Court in a number of cases involving immigration control, such as Mahmood and Isiko . In short, therefore, in deciding whether or not the Secretary of State has struck the balance fairly between this appellant's right to respect for his family life and the proper maintenance of immigration control, this Court will recognise that the Secretary of State is to be allowed a significant area of judgment. He is entitled to a significant margin of discretion before the Court will conclude that he has gone wrong in the relative weight which he has attached to the conflicting interests. I therefore approach the facts of this case and the IAT decision with those principles in mind. 16. I fully accept that some weight was to be attached in the decision-making process to the fact that the appellant began his relationship with BF and married her while his status in this country was underdetermined. This is a relevant factor, and not an unimportant one: see Abdul Aziz v United Kingdom [1985] 7 EHRR 471 . But the whole balancing exercise was conducted without any weight being attached to the fact that the policy being put into one side of the scales would not have been applicable at all but for the delay on the part of the Home Office. While it may be uncertain when the appellant would normally have been granted refugee status or exceptional leave to remain, it is unfair that he should suffer because of an uncertainty arising from the Home Office's failings. Nor can it be said that allowing him to apply in-country would encourage others to exploit the established procedures. To require the appellant now to leave the United Kingdom and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent, who does not appear to have reflected adequately, if at all, the significance of his department's delay in the present case."[26]It is clear from the decision letters of 6 May 2004 and 22 October 2004 that the Secretary of State rejected the claimant's submission as to the delay in determining his application and its consequences solely by reference to the decision in Shala , deciding that Shala was based upon a specific set of facts that were not applicable to Mr Mthokozisi. Having arrived at the conclusion that Shala did not apply, the Secretary of State took no further account of the delay and its consequences in carrying out the necessary balancing exercise.[27]There are unquestionably a number of features that distinguish this case from that of Shala . In Shala , the appellant, an ethnic Albanian from Kosovo, had a legitimate claim to enter as a refugee at the time when his claim should have been determined; but the situation in Kosovo had changed by the time that his claim was considered and rejected. Mr Lewis submitted on behalf of the claimant that he too had a legitimate claim to enter at the time when his application should have been determined on the basis of the policy to which I have already made reference. I do not agree. Whilst he would have been the beneficiary of such a policy, he did not at any time have a legitimate claim to enter the UK. The outcome of his claim to asylum would not have been different had it been determined at an earlier stage.[28]Secondly in Shala the appellant had established a family life within the meaning of Article 8 in the United Kingdom. Miss Whipple argued, and I accept, that in general interference with private life will not weigh as heavily in the balance as interference with an established family life, although of course all will turn on the facts of the individual case.[29]But in my judgment the Secretary of State adopted too narrow an approach to the decision in Shala . Shala is authority for the wider proposition that when striking the balance between an applicant's rights under Article 8 and the legitimate objective of the proper maintenance of immigration control, the decision maker must have regard to delay in determining an application for asylum and its consequences.[30]Keene LJ observed in Shala that " it is unfair that he (the appellant) should suffer because of an uncertainty arising from the Home Office failures". Similarly in this case there is obvious unfairness to the claimant in losing both exceptional leave to remain and the likelihood of obtaining indefinite leave to remain as a result of the failure on the part of the Secretary of State to determine his application for over four years. That was a factor that ought to have been taken into account by the Secretary of State when considering the Article 8 claim. In my judgment the Secretary of State erred in applying the decision in Shala in too narrow and restrictive a manner, and in consequence failed to take any or any proper account of the delay on his part and its consequences for the claimant.[31]It follows that this application succeeds, and the decisions embodied in the letters of 6 May 2004 and 22 October 2004 will be set aside.

Cited in 3 later judgments