GX v Secretary of State for the Home Department (Kosovo) [2002] UKIAT 03352 (31 July 2002) [2002] UKIAT 03352

UKIAT
GX v Secretary of State for the Home Department (Kosovo) [2002] UKIAT 03352 (31 July 2002)
[2002] UKIAT 03352 · 2002-07-31
[1]APPEAL No . GX v Secretary of State for the Home Department (Kosovo) [2002] UKIAT 03352 HX 43854/2001 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 11 July 2002 Date Determination notified: 31 July 2002 Before The Honourable Mr Justice Collins (President) Dr A U Chaudhry Mr D R Bremmer Between GX APPELLANT and Secretary of State for the Home Department RESPONDENT Represented by: Ms V Easty, Van-Arkadie & Co Solicitors for the Appellant Ms M Banwait, Home Office Presenting Officer for the Respondent DETERMINATION AND REASONS The appellant, an ethnic Albanian from Kosovo was born on 5 December 1981. He arrived in this country on 11 October 1998, hidden in the back of a lorry when he was still 16. He made his claim for asylum on 13 October 1998. Nothing was done by the Home Office to process his application until 4 May 2001 when they wrote a letter which contained this sentence:
"As your client is an unaccompanied minor we are anxious to give this application the priority it deserves."
That is a strange observation since by May 2001 some two and a half years had already passed since the applicant, an unaccompanied minor, had arrived in this country. The refusal letter which was eventually dispatched was in the usual form indicating that although he had suffered under the Serbs the situation had now changed. Indeed at paragraph 6 of the letter the author said:
"The Secretary of State does accept that you may have suffered persecution in the Federal Republic of Yugoslavia. You say that the Serbian authorities would constantly harass you and your family."
[2]But he then went on to say rightly that the situation had changed and that therefore there was no present well-founded fear of persecution. That was accepted. The appeal was based not on the rejection of the asylum claim but on the rejection of a claim under Article 8 because the appellant has married. He met his present wife in September 1999 and as the Adjudicator has decided the marriage is one which is wholly genuine and is nothing to do with any attempt to obtain residence in this country. As he put it:
"The appellant has clearly established family life with Vinnette Powell. The directions for his removal to Kosovo would infringe his right to that family life."
He then went on to decide that as a result of the decision of the Court of Appeal in Mahmood, despite the hardship there were no insurmountable obstacles to the family living together in Kosovo or to the applicant going back to Kosovo and seeking an entry clearance within the terms of Rule 281 of the relevant Immigration Rules. But the Adjudicator did go on to say this:
"However I must say that the appellant's wife was very moving when she gave her evidence. Taking into account what I assess as the fairly good chances of success of an application made under paragraph 281 by the appellant in Kosovo, his age, the loss of his family and the persecution endured and witnessed by him in Kosovo, I recommend that the Secretary of State grants this appellant indefinite leave to remain obviating the need for an application under paragraph 281."
[3]In our judgment the Adjudicator could and should in the circumstances of this case have gone further and allowed the appeal under Article 8. He cites extensively from the relevant part of the decision in Mahmood, but the court there made it plain that if a person had no other legitimate claim to enter then in the absence of exceptional circumstances which would justify the waiver of the normal rules which were established to obtain consistency in dealing with marriage cases, the application would not succeed. In the circumstances of this case, the fact is that the appellant did have a legitimate claim to enter, namely that he was at that time a refugee, and that coupled with the delay in dealing with his claim as an unaccompanied minor until the situation changed, is capable of amounting to exceptional circumstances and does in the circumstances of this case justify a decision that he is entitled to remain here because to remove him would be a breach of Article 8 of the European Convention on Human Rights.[4]We emphasise that this is a decision which depends entirely upon the facts of this case and must not and cannot be taken as a precedent to be relied on in any other case at all. Each will depend upon its own facts. In those circumstances we allow this appeal and we should say in fairness to Ms Banwait when she was aware of the full circumstances, in particular the letter to which we referred of May 2001, she recognised that this was a case which ought to be conceded and she indicated that she would concede it. Nonetheless we thought it right to give her our reasons for reaching the conclusion that we have. MR JUSTICE COLLINS

Cited in 2 later judgments