C4/2004/0394/0394(A) 
Neutral Citation Number: [2005] EWCA Civ 968
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL 
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 13th July 2005
 
B E F O R E:

THE MASTER OF THE ROLLS
(Lord Phillips) 
 
LORD JUSTICE BUXTON 
 
LORD JUSTICE SCOTT BAKER 
 
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RAM JAHA
Respondent/Appellant
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Appellant/Respondent 
- - - - - - - 
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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 - - - - - - -
MR R SCANNELL (instructed by Messrs Birnberg, Pierce & Partners) appeared on behalf of the Appellant
MS E LAING (instructed by Treasury Solicitor) appeared on behalf of the Respondent
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J U D G M E N T
Wednesday, 13th July 2005 
1.	LORD JUSTICE BUXTON:  The appellant, Mr Ram Jaha, is a citizen of the Federal Republic of Yugoslavia.  He was born in Kosovo.  He is an ethnic Albanian.  He left Kosovo in 1997 when the troubles of that country were at their height.  On 3rd December 1997 he claimed asylum in Germany.
2.	In circumstances that I at least am not wholly clear about, he then came to this country on or about 23rd December 1997.  He entered clandestinely but was apprehended.  On apprehension he claimed asylum on the basis of his Albanian ethnicity and the problems that that would cause him in his home country of Kosovo.  He did not, at that stage, reveal to the authorities that he had previously passed through, and indeed claimed asylum in, the Federal Republic of Germany, but the authorities in this country fairly rapidly identified that to be the case by the comparison of his fingerprints with those held in the Federal Republic.
3.	In March 1998, that is to say some three months after Mr Jaha's entry here, the Secretary of State for the Home Department issued what was described as a third country certificate; that is to say, a certificate under the provisions of the Dublin Convention.  It was not for this country but for the Federal Republic of Germany to consider Mr Jaha's claim, and it was proposed to remove him to Germany for that purpose.  He sought judicial review of that third country certificate, as indeed did a large number of his compatriots. 
4.	On 25th March 1999, in the case of Besnik Gashi, this court ordered the suspension of repatriation of Albanian Kosovans to Germany because it was not able to be satisfied that the authorities of the Federal Republic of Germany were, at that time, applying to those cases the requirements of the Geneva Convention.  
5.	The Secretary of State announced in July 1999 that it was his intention to enforce the provisions of the Dublin Convention in those cases since, after review of the matter and further study, he had concluded that the German practice was indeed acceptable, or had become so since June of 1999.  
6.	In June 2000 Collins J, in another Gashi case, but dealing with a different person, upheld the conclusion reached by the Secretary of State, and confirmed that the practice of the federal republic towards Kosovan Albanians was now acceptable in the jurisprudence of the Geneva Convention and of this country.
7.	Whilst those proceedings were in place it was, of course, not lawfully possible for the Secretary of State to act on his otherwise perfectly lawful intention to remove Mr Jaha to Germany without substantive consideration of his asylum claim.  
8.	In about January of the year 2000 Mr Jaha met a lady, Mrs McCarthy, who was a person who already had three children by a previous marriage.  They lived together from some date in about April 2000 and were civilly married according to the laws of this country on 29th September 2000.  
9.	On 13th October 2000 Mr Jaha's solicitors, who have advised him throughout and continue to advise him in this case, applied on his behalf for leave to remain in this country, upon the basis of that marriage.
10.	Before that claim had percolated within the Immigration Nationality Department to the appropriate recipient, or so it would appear, the Secretary of State issued a notice to Mr Jaha and to other persons in a similar position drawing attention to the decision of Collins J and to the intention of the Secretary of State thereafter to maintain his desire to remove persons to Kosovo.
11.	That letter was met by a prompt reply from Mr Jaha's solicitors who reminded the Secretary of State of the marriage application and said:
"...I believe that to remove Mr Ram Jaha to Germany to pursue his asylum claim would amount to a breach of Article 8 of the European Convention on Human Rights given he is married to a British citizen with 3 children, who maintain contact with their original father and family."
In November 2001 a daughter was born to the couple.  
12.	The Secretary of State was still not able to act on his intention to deport Kosovan Albanians to Germany because of other proceedings under the name of Zeqiri in which it was claimed that the decision of this court in Gashi had created a legitimate expectation that there would be substantive consideration by the Secretary of State of the cases already placed before him, and there would be no issue of a fresh certificate which, if valid, would enable the Secretary of State again to deport these people without substantive consideration of their asylum situation.
13.	Those proceedings were not concluded until 24th January 2002 when the House of Lords reversed the decision of this court and held that there was no legitimate expectation that the Secretary of State would not issue a fresh certificate.
14.	Following upon that decision, the claimant's judicial review application (in respect, I think, of the proposed second certificate) was dismissed pro forma.   
15.	That being out of the way, the Secretary of State then wrote to Mr Jaha's solicitors in June 2002 dismissing or rejecting his alternative claim on grounds of marriage.  It is necessary to set out what the Secretary of State said: 
"5. Your client's marriage on 29 September 2000 does not pre-date by 2 years the service of notice of liability to removal and would not be grounds for allowing him to remain.  The Secretary of State has come to the conclusion in your client's case that there are not sufficient compassionate circumstances to justify a concession on the grounds of his marriage.  The Secretary of State considers that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain.
"6.  The Secretary of State has also had regard to Article 8 of the ECHR and does not accept that removing your client to Germany would amount to a breach of this article.  Article 8 does not extend to a general obligation on the United Kingdom to respect the choice by married couples of the country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom.  It will be open to your client to make an application at a British embassy in Germany for entry clearance to return to this country in the proper manner as the spouse of a person settled here.  The Secretary of State considers that your client should not benefit from his breach of immigration controls by avoiding the need to obtain an entry clearance.  To allow your client to remain here and thereby circumvent the need for entry clearance would benefit against those who comply with the law.  This view is supported by the Court of Appeal in the case of Mahmood..."
The Secretary of State then went on to say that interference with private life was justified in this case, not least because Mr Jaha's private life had been established whilst he was, as the Secretary of State put it, in this country unlawfully.
16.	Save for the last point which I shall have to return to, it is difficult to see why those reasons were not unexceptionable in the light of the general policy followed by the Secretary of State in marriage cases.
17.	Mr Jaha appealed to an adjudicator, putting forward a large series of grounds.  The adjudicator rejected all the grounds save that she thought that, because of difficulties of obtaining entry clearance from abroad that she perceived in Mr Jaha's particular case, to require him to go to Germany or possibly even Kosovo to obtain entry clearance, as the Secretary of State proposed, would separate him from his family to an extent that would be a disproportionate interference with his right to family life under Article 8.  
18.	It is appropriate to set out what the adjudicator said on that point, which is to be found in paragraph 23 to 26 of the adjudicator's determination:
"23. However, for a removal decision to be disproportionate under Article 8 it is not enough that a British spouse is not able for valid reasons to go and live with a claimant in his own country.  Obstacles can only be considered insurmountable if, in addition, there are exceptional circumstances justifying a claimant in not exercising the viable option of going abroad and applying for entry clearance.  These are the principles set out by the Court of Appeal in Mahmood and reinforced by the Tribunal in Baljit Singh.
"24. In general therefore, this appellant would have an effective remedy available to him by the simple act of returning to Germany or Kosovo and applying for entry clearance as a spouse there.  There is not a Visa issuing post within Kosovo itself: the nearest posts to Kosovo are Belgrade, Tirana, and Skopje.  In Belgrade the waiting time for an interview is about four weeks from receipt of application, in Tirana nine weeks and in Skopje, four weeks (although the appellant would also need to obtain an UNMIK travel document, which might delay the process by further two or three weeks).  In all cases, if the ECO is satisfied that immigration rules have been met, the visa is usually issued the same day.  I take the view that such delays ie approximately nine weeks, are not excessive.
"25. However, the appellant is the breadwinner in his family - his wife is unemployed.  As a result, his separation from his family is not likely to be as short-lived as the above information suggests.  Although his wife is optimistic that she will be able to obtain some part time employment, this would not generate sufficient income to maintain herself and her children without reliance on public funds. Consequently, it is more likely than not that the appellant would be unable to show that he could be maintained and accommodated in United Kingdom without recourse to public funds, with the result that he would be refused a visa and would be likely to encounter a lengthy delay before his wife were able to obtain suitable employment to satisfy the Immigration Rules.
"26. In light of the above, I take the view that this case can be distinguished from Mahmood and Baljit Singh on its facts.  I have weighed in balance the interests of the wider community in maintaining immigration control as against the factors in favour of the appellant remaining in the United Kingdom to continue with his family life.  However, in light of the lengthy delay that might well result before an entry clearance is issued, the detrimental effect that a delay might have on the future development of his relationship with his infant daughter, and the cessation of the appellant's financial support for his wife and children, I have no hesitation in concluding that the interference to the appellant's right to family life under Article 8 is not justified and is disproportionate."
19.	The Secretary of State appealed against that determination to the Immigration Appeal Tribunal.  The adjudicator had decided the matter before 9th June 2003 and therefore the appeal was to be determined on the basis of the jurisprudence recognised by this court in the case of Subesh, and not in the light of the jurisdiction, more limited as it is, that obtains since the coming into operation of the 2002 Act.
20.	The Immigration Appeal Tribunal criticised the decision of the adjudicator.  They held, in paragraph 17 of their determination, that she had misunderstood the policy that would be followed if the applicant should make a further application from abroad.  They thought that his good employment record and other aspects would cause there not to be an undue delay in obtaining entry clearance.  They therefore reversed, on that point, the adjudicator's determination.
21.	It is not now contested in this appeal that the Immigration Appeal Tribunal had jurisdiction to take that step and were entitled within that jurisdiction to take that view.  So the issue, and the only issue that was in dispute in the case of the adjudicator, has now disappeared.
22.	However, before the Immigration Appeal Tribunal Mr Jaha was represented by Mr Scannell who has appeared before us today.  Mr Scannell had not previously been engaged in the case.  Other counsel, though instructed by the same solicitors, had conducted it before the adjudicator.  Mr Scannell sought permission to file a respondent's notice based on the decision of this court in the case of Shala.  That somewhat surprisingly does not appear to have been reported, but it carries the neutral citation number [2003] EWCA, Civ 233.  
23.	The Immigration Appeal Tribunal fairly allowed that matter to be pursued albeit there had been no notice of it previous to the day of the hearing.  It is with that authority that this appeal has been concerned.  The facts of the Shala case are correctly summarised by the Immigration Appeal Tribunal in our case in paragraph 19 of its determination:
"In Shala the appellant arrived in the United Kingdom on 25 June 1997 and claimed asylum the same day.  Nothing was done about his claim for some time.  Eventually, after letters written by his solicitors, he was interviewed on 17 July 2001 and his claim was refused on 25 July 2001.  Meanwhile the appellant had met a Czech national who was also an asylum seeker.  They began living together in December 1998.  In May 2000 she was granted refugee status.  They married in October 2001.  The Court of Appeal were satisfied that the Tribunal had erred in law by equating the appellant's position with that of any normal applicant who sought to obtain leave to enter on marriage grounds.  His case had an exceptional feature: if his claim had been dealt with efficiently, he was likely to have obtained exceptional leave to remain which would have given him the ability to apply within the United Kingdom for a variation of that leave on the ground of his marriage.  When the appellant arrived in the United Kingdom he did have a legitimate claim to enter.  The subsequent delay by the Home Office deprived him of that advantage and that should be seen as an exceptional circumstance taking his case out of the normal run of cases when a person with no leave to enter seeks leave on the basis of marriage."
24.	The case was concerned with the proportionality balance between interference with a person's private life, under Article 8, or his married life, and the requirements of immigration control.  The way in which this court approached the matter is best set out, if I may respectfully say so, in paragraph 16 of the judgment of Keene LJ, with which Rix LJ agreed in full:
"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 undetermined.  This is a relevant factor, and not an unimportant one: see Abdulaziz 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 more 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."
25.	Schiemann LJ said this at paragraph 24:
"The present case however is distinguishable from the mass of cases because the applicant came here at a time and in circumstances where his failure to apply for a visa was accepted by the Home Office as wholly explicable and where he applied for permission on the day he arrived from Kosovo which was in the middle of a dreadful civil war.  He could not have done more.  In short he was, at the time that he came, a meritorious applicant for permission to remain here, at any rate for a while.  It was not until more than four years later that the Home Office, after chivvying by his solicitors, got round to arranging an interview to test the genuineness of his asylum application.  Automatically to apply to a person in his position a policy designed to discourage both meritorious and unmeritorious applicants from jumping the queue is a wrong approach to the difficult problem of deciding whether the interference with a person's rights under Article 8 is necessary in a democratic society." 
26.	As I have said, the court had jurisdiction to consider the balance between Article 8 interference and the requirements of immigration control.  It is not irrelevant to observe that that balance has now been restated by the House of Lords in terms somewhat more stringent from those that were adopted in Shala.  That is to be found in the case of Razgar v Secretary of State for the Home Department [2004] 2 AC 368 in the speech of Lord Bingham of Cornhill in paragraphs 19 and 20.  Lord Bingham had, in paragraph 17, posed a series of questions that a court or an adjudicator must ask itself, question (4) being: is the interference necessary in the democratic society for the interests of national security? (and, I would add, the other matters envisaged by Article 8); and question 5: if so, is such interference proportionate to the legitimate public end sought to be achieved? 
27.	Lord Bingham said this in his paragraph 19:
"Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively.  This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence... and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state.  In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively."
28.	Lord Bingham then went on to question (5), pointing out that that question always involved the striking of a fair balance between the rights of an individual and the interests of the community.  He reviewed the position of an adjudicator, mentioned some criticism that had been directed at the decision of the Immigration Appeal Tribunal, and then said this in his last sentence in paragraph 20:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
29.	In the light of that guidance as to the relationship between Article 8 and immigration control, it would be unlikely indeed that the case of Shala in this court laid down any general principle, or, if it did do so, unlikely now that it would be appropriate for this court to adopt any such principle.  That Shala in fact lays down no guiding principle is now established by at least two decisions of this court.  The most recent and most, if may respectfully say so, comprehensive being the decision delivered only on Monday of this week in the case of Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, a case that was fully before the court and known to both of the parties, in which Laws LJ, giving a decision agreed in full by both the other Lords Justices, said this:
"Shala, then, establishes no particular, free-standing principle.  It was a case on its own facts.  [Counsel's] argument distorts its effect.  I acknowledge that in this area the line between fact and law can be elusive.  The court, more particularly the appellate authorities, have to deal with broad issues which are given by firm principles of the law relating to human rights but require what can be a fine and difficult balance of judgment.  No conceptual difficulty, however, as to the edge of law and fact can justify an argument which seeks to transform a judicial decision driven by the case's particular circumstances into something approaching a rule-book."
30.	Mr Scannell very properly accepted that he could not draw any broad principle, much less a principle that constrained either the court below or this court, from the totality of the jurisprudence that is followed in Shala.  He restricted himself to saying that the judgment of Laws LJ in Strbac confirmed what had been said in Shala, that delay on the part of the authorities is capable of being a factor in determining the proportionality of a decision.
31.	That analysis of the case leaves this appeal in very serious difficulty when it is put against the way in which the Immigration Appeal Tribunal dealt with this part of the appeal to it.  It is necessary to set out paragraphs 20 to 22 of the determination and also paragraph 26:
"20. In the present appeal the application was dealt with on Third Country grounds.  Germany accepted responsibility for assessing his claim.  The applicant sought to challenge the Secretary of State's decision to remove him to Germany: he was fully entitled to take that course but the fact remains that his claim was finally dismissed by the Court of Appeal in March 2002.  Whatever the position in 1997 or 1998 by 2002 it was safe for the appellant to be returned to Germany and indeed to Kosovo.  Even assuming that the appellant was fully justified in the light of the situation in Kosovo in coming to the United Kingdom rather than remaining in Germany in 1997, the situation in Kosovo significantly changed in 1999 and had certainly changed completely by March/April 2000 when he first met his wife.  In our judgment the facts in this appeal are properly distinguishable from the facts in Shala.
"21. In our view it is invidious when assessing proportionality to attach too much weight to an assessment of what the position might have been if a claim had been assessed at an earlier date.  The policy of the Secretary of State has been to grant indefinite leave to those entitled to refugee status.  He has chosen to go beyond the requirements of the Convention which only require protection to be given when there is a current well-founded fear of persecution.  The Tribunal are not saying that when assessing proportionality the circumstances in which an applicant arrived in the United Kingdom and any delay in dealing with a proper claim should not be taken into account.  Clearly they are relevant factors.  In Shala, the Court of Appeal were satisfied that the Tribunal left out of account these relevant factors: the circumstances of the appellant's arrival and the delay in determining his claim.  When assessing proportionality these factors must be assessed together with all other relevant factors including the reasons that the applicant is seeking to remain in the United Kingdom and, when the application is based on marriage, the situation when the relationship formed and the situation then in the applicant's home country.
"22. When this applicant arrived in the United Kingdom he would have been in considerable danger if he had remained in Kosovo.  He cannot be categorised as someone who did not have a properly arguable legitimate claim to enter and remain in the United Kingdom at that time.  However, by the time of his marriage the situation had changed for the better in Kosovo." 
...
"26. Looking at the facts of the present case, the Tribunal are unable to say that the Secretary of State's decision fell outside the range of responses open to him on the basis of the facts which are not substantially in dispute.  When all the circumstances are taken into account it cannot be said that this decision was so disproportionate that it fell outside the area of decision properly open to the Secretary of State."
32.	It will be apparent from what is said in paragraph 21 that the Immigration Appeal Tribunal have taken good note of the warning in Shala, that delay was a potential aspect to be considered when considering proportionality, and emphasised that they had taken it into account and had not made the error, made by the Secretary of State in Shala, of not taking any account of delay at all.
33.	When therefore asked what was the complaint about paragraphs 20 to 22, and indeed what the error of law was in those paragraphs, Mr Scannell said that his objection was to the reference to the fact that by the time of Mr Jaha's marriage the situation had changed for the better in Kosovo.  That, he said, was an irrelevant consideration.  The relevant consideration in the light of the guidance given in Shala and also by Laws LJ in Mahmood, was whether or not Mr Jaha had a right to come here in the first place; and, secondly, that despite the change in the situation in Kosovo, Mr Jaha could not in fact have been lawfully removed from this country by the Secretary of State until the House of Lords' pronouncement in Zeqiri in 2002.
34.	The latter point is no doubt so, but the basis of Mr Jaha's assertion that he had a right to be here in 1998 was the then situation in Kosovo, and not anything to do with the complications connected with the Dublin Convention and Germany's application of it.  As the Immigration Appeal Tribunal identified, it was that position, the position in Kosovo, that was the whole foundation of Mr Jaha's assertion that he had a right to be here.  That had changed by the date of the marriage.  It was perfectly rational for the Immigration Appeal Tribunal to put that consideration into the balance.  The fact that he could not be returned to Germany under a Dublin Convention argument until 2002 seems to me to be nothing to the point.  
35.	It is also necessary to say that the analysis by the Immigration Appeal Tribunal in paragraph 22 was, in my judgement, in fact unduly favourable to Mr Jaha.  He did not in fact have a legitimate claim to enter and remain in the United Kingdom, in the sense in which that concept was used in Jaha.  He had a claim only to stay here until it was safe to return him to Germany.  He was unlike the situation of Mr Shala, who if the claim had been processed as it should have been, would, in the estimation of this court, have obtained or probably have obtained exceptional leave to remain.
36.	That, I have to say, is not merely a technical point.  The emphasis on the original legitimate reason for being here is heavily based upon the exposition by Laws LJ in Mahmood of the reasons for the present rule.  I do not think that Laws LJ in any way intended what he said to be used as some sort of check-list, or that if the elements of it were fulfilled that led to the policy not being applied in that particular case.  But, since this case has been argued on that basis, it is legitimate to point out that the element in Laws LJ's exposition that is relied on, that is to say a right to be here in the first place, is certainly, to put it at its lowest, heavily qualified in the case of Mr Jaha.  
37.	The essential element in all this is that the tribunal properly directed itself in the light of Shala and of other authorities in this court, and it is impossible to say that they struck the wrong balance between Article 8 and the interests of immigration control.
38.	True it is to say, and it is conceded, that in paragraph 26, already set out, the Immigration Appeal Tribunal put the test on the wrong basis.  We now know from paragraph 54 and other paragraphs of the decision of this court in Huang [2005] EWCA Civ 105 that the test is not that of a Wednesbury type approach as to whether the Secretary of State's decision fell outside the range of the responses open to him, but more directly rests on the assessment of the decision-maker or adjudicator himself.  It is agreed on both sides that that was an error of law.  It does not affect the outcome of this appeal, because I am entirely satisfied that if, as Mr Scannell urges, this claim ought to be remitted on the basis of that error, either this tribunal or any other, bearing in mind the terms of the judgment that this court has just delivered, would come to exactly the same conclusion as this tribunal in fact did.  That is because, although they recite paragraphs 26 in the terms that I have set out, it is quite clear (and I venture to think that in that the tribunal would be fortified by this court's judgment) that their view also, balancing the relevant factors, was as they set out.  
39.	I therefore see no ground for criticising the judgment of the Immigration Appeal Tribunal.  I would dismiss this appeal. 
40.	LORD JUSTICE SCOTT BAKER:  I agree.
41.	LORD PHILLIPS:  I also agree. 
ORDER: appeal dismissed; costs for the respondent.