jh
Heard at Field House with video link to Birmingham

[2003] UKIAT 00074 L (Afghanistan)
On  4 August 2003

Dictated 4 August 2003 

IMMIGRATION APPEAL TRIBUNAL

                                                                             Date Determination notified:

                                                                                          16/09/2003

Before:

Mr A R Mackey (Chairman)
Mr D R Bremmer

Between

APPELLANT

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT 

Representation
For the appellant:	Mr M Uddin, Representative for Johar & Co Solicitors, Leicester
For the respondent:	Mr J Singh, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant, a citizen of Afghanistan, appeals with leave against the determination of an Adjudicator, Mr Malcolm Rothwell, promulgated 20 February 2003 wherein he dismissed an appeal against the decision of the respondent who had issued removal directions and refused asylum and human rights claims.  The Adjudicator had however made a recommendation at paragraph 7 of the determination in the following terms:

“I am concerned that the appellant’s in-laws have been granted ELR	at about the time that the appellant’s claim was refused.  They entered the country together and claimed asylum together.  I do not know whether the respondent was in a position to connect these applicants as part of the same family.  I strongly recommend, therefore, that the respondent takes into account the decisions made in respect of the appellant’s family members, the circumstances of the birth of the appellant’s two children in this country, and the poor humanitarian conditions that exist in Afghanistan before he makes any decision to remove the appellant to Afghanistan.”

2.	At the outset we made enquiries as to whether the recommendation had been followed through by the appellant’s representatives with the respondent or whether other applications had been made to the respondent that noted the apparent inconsistency between the grant of ELR to the in-laws but not to this family, when the extended family had lodged their applications for asylum at the same time. We were advised that in February 2003 the appellant’s solicitors had written to the respondent following up on the recommendation and asking for ELR to be granted to their clients.  Mr Singh reported that this had been received and was held in abeyance pending the outcome of the application for leave and this appeal.

3.	The grant of leave was given by the Vice President only in relation to paragraphs 3 and 4 of the grounds submitted.  These relate to the possible breach of Article 8 of the ECHR, the determination of the Adjudicator particularly taking into account that the appellant’s in-laws had been granted exceptional leave to remain until early 2005.

	The Adjudicator’s Determination
4.	The Adjudicator has noted in several places (paragraph 3.11, 5.2 and 5.5) that counsel acting for the appellant did not present submissions in relation to Article 8 and no other Articles from ECHR were referred to at the hearing.  For this reason therefore the Adjudicator has not given consideration to Article 8 issues in the determination.

	The Appellant’s Submissions
5.	Mr Uddin submitted to us a skeleton argument which we received on the day of hearing.  He claimed that there had been reference in the appellant’s own statement to Article 8 issues and that the failure by counsel representing him before the Adjudicator to argue issues of Article 8 was an oversight that should not be counted against the appellant as he did wish these issues to be put forward.

6.	He offered to present his client, other family members and a social worker to give evidence in support of the existence of family life between the appellant’s nuclear family and the extended family of his in-laws.  We decided that the matter should proceed before us on the issue of proportionality under Article 8(2) of the ECHR and if we considered after hearing those submissions that it was necessary to hear additional evidence on the establishment of family and/or family life we would allow the evidence to be called.  In the circumstances we advised at the end of the submissions on proportionality that it would not be necessary for evidence to be called.  We thus accepted that taking the matter at its highest family life had been established between the appellant’s family and his extended in-laws while in the United Kingdom, and apparently before that while they lived in Kabul.  

7.	Mr Uddin submitted that the starting point for this appeal was the Tribunal determination in Nhundu & Chiwera (01/TH00613) where the Tribunal set out the step-by-step approach that needed to be taken.  These steps are:

		“a)	Is there an existent private or family life?

		b)	Is there interference with that private or family life?

		c)	Does the interference pursue a legitimate aim?

		d)	Is it in accordance with the law?

		e)	Is the interference proportionate?

8.	It was submitted that the appellant and his wife had established a family life in the United Kingdom with his mother-in-law, brother-in-law and sister-in-law.  In addition two young children have been born while in the United Kingdom to the appellant and his wife.  In this situation he submitted that a decision to remove the family would interfere with family and private life established in this country.  It was conceded that the decision by the respondent would be in accordance with the law and did pursue a legitimate aim.  However it was submitted that in all the circumstances the Secretary of State’s decision would not be proportionate.

9.	We were referred to the Tribunal decision in Bakir [2002] UKIAT 01176 where the former President, after analysing the determination in Mahmood [2001] INLR1 stated:

“The test to be applied is whether in all the circumstances it is reasonable to require the family members to leave the country, that is to say, whether the interference is proportional.”

10.	He went on to concede that it was established in Article 8 cases that the Secretary of State had a “margin of discretion” (Beqiri [2002] UKIAT 00725) and that the Tribunal should, when considering the balance of this type of case, take into account the provisions of paragraph 364 of the Immigration Rules (HC395).

11.	He submitted that the appellant and his family had been living together in the United Kingdom for over three and a half years.  The appellant and his wife and children formed part of a larger family unit which comprised the mother-in-law, brother-in-law and sister-in-law.  The ties were extremely strong and continuous during the time the group had been in this country.  He asked us to note that they had lived close together and if it had not been for the in-laws being granted ELR the family would most likely still be living in the same accommodation.

12.	We were also asked to note that the appellant’s wife had been attending college, although of late had been suffering from fainting fits.  The appellant’s mother-in-law provided support and there was a constant exchange of visits between the two households.  

13.	Finally he asked us to note that the appellant did not have a criminal record and given that the appellant’s wife was unwell and there were two children based in this country, compassionate considerations should be taken into account particularly noting conditions in Kabul which he submitted at this time were extremely bad.  

14.	The major point that he presented to us was that the Secretary of State’s decision to remove could be seen as disproportionate given that he had granted ELR to the appellant’s mother-in-law, brother-in-law and sister-in-law in an application based on extremely similar grounds in 2001.  The extended family had travelled to the United Kingdom together and had lodged their applications for asylum at the same time. They had always desired that their applications should be kept together and determined as a whole.  The fact that this had not happened was, in his submission, the fault of the Secretary of State and has led to the anomalous situation where part of the family had been given ELR and others had not.  In this situation he submitted that it was inconsistent and unfair and impacted on the proportionality issues related to this appellant and his immediate family.

15.	He further submitted to us that the fact that the exceptional leave to remain expired in some 18 months time could not be seen as an issue that counted against this appellant.  At that time the in-laws will have been in the United Kingdom for some four years and, although there is no Home Office policy in this regard, he submitted it was realistic to assume that they would be given indefinite leave to remain if an application was made by them at the time when the exceptional leave to remain was about to expire.

16.	Finally he submitted that this case could be considered in a similar fashion to the recent determination of the Court of Appeal in Arben Shala [2003] EWCA Civ 233.  The Court of Appeal there had noted a four year delay in the processing of an application for asylum and considered that in the assessment of proportionality the delay by the Secretary of State and the acceptance that the appellant had been legitimately in the United Kingdom for that lengthy period of some four years as a putative refugee indicated that proportionality had been wrongly concluded by the Tribunal where the applicant had married a British citizen.

17.	He agreed that the situation was not totally analogous but that the delay factor in this case was an element that had to be taken into account along with the inconsistency in the ultimate treatment of the appellant and his family with that of his in-laws.

	The Respondent’s Submissions
18.	Mr Singh submitted to us that at the hearing before the Adjudicator on 12 February 2003 counsel for the appellant had chosen not to make submissions on Article 8 and therefore the Adjudicator had correctly reached determinations on all matters that had been placed before him. There was thus no fault in his determination and thus no error of law.  In the alternative he submitted that the proportionality issue required consideration not only of the family unit in this country but also the appellant’s family unit in Kabul.  He asked us to note that the appellant and his wife had lived with the appellant’s father and brother in Kabul, and not with their in-laws, although they lived close by.  Thus if the appellant returned to Kabul he would be in fact going back to the family life situation he enjoyed prior to coming to this country.  In addition the two young children, together with the appellant and his wife, made up a family unit of their own.  The children were very young and therefore could easily adapt if they travelled with their parents to Kabul.

19.	He also asked us to take into account the Court of Appeal determination in Mahmood and that in this case the parties knew that the in-laws had limited exceptional leave to remain at the time when they made their application and it is not a situation where they could reasonably expect that indefinite leave would be granted to the in-laws.  He asked us to note that there was no policy by the respondent to “upgrade” ELR to ILR.  In the circumstances, given an improving situation in Afghanistan there was every possibility that the “in-law” family could be removed.  In this situation he submitted that it would not be disproportionate to the legitimate aims of immigration control for this appellant and his immediate family to be returned to Kabul.

20.	We reserved our determination.

	The Issues
21.	We found, after considering the proportionality issue, that it was unnecessary for us to hear evidence whether family or private life existed between the appellant, his wife and children and the in-laws, who have ELR in this country. 

22.	The first issue therefore was whether the decision of the Adjudicator was clearly wrong given that no argument on Article 8 issues had been put before him?  If the answer to that question was in the positive and the determination was sustainable then, strictly speaking, there would be no need for us to go on and consider Article 8 and proportionality issues ourselves.  However, we have decided that an alternative assessment should be made of the Article 8 issues in case we are wrong in our initial conclusion.

	Decision
23.	On the first issue of whether the determination of the Adjudicator was clearly wrong, given the failure of counsel for the appellant to present any arguments or submissions on Article 8, we are satisfied that the submission of Mr Singh has merit in this regard. The Adjudicator clearly could not make the appellant’s case for him and although there is brief mention of Article 8 rights in the appellant’s statement that was before the Adjudicator, it is clear that counsel acting for the appellant did not make any submissions relating to Article 8.  As stated, the Adjudicator in fact refers to this in three places in the determination.  It is also clear that this has not meant the Adjudicator completely ignored the family situation or the anomalous situation that apparently existed between this appellant and his in-laws as he went on to make a recommendation at the end of the determination.  We are satisfied that the determination of the Adjudicator was not clearly wrong or unsustainable as the Adjudicator had listened to the arguments, assessed all the issues that had been placed before him and reached sustainable conclusions.

24.	Turning to the second issue, assessment of Article 8 as an alternative, we have initially accepted the family and/or private life has been established by this appellant in the United Kingdom during the almost four years that he has been in the country.  An extended family unit existed for some time in Kabul before the group came to this country and during the time that they have been here, while not living together the whole of the time, there is clearly a close family nexus in existence and no doubt this has strengthened during the time the whole extended family has been in this country.  In this situation therefore the provisions of Article 8(2) on proportionality, become relevant.  We have taken into account, at the outset, the findings in Mahmood, Nhundu & Chiwera, and Bakir and have also noted carefully the determination of the Court of Appeal in Arben Shala.  We have taken into the balance the family life existing in the United Kingdom, the fact that the in-laws have extended leave to remain for a period of some 18 months and at that time(early 2005) their continuation of leave to remain in this country is speculative, although it is possible that they could obtain indefinite leave.  We also noted that the appellant and his family lived in Kabul with his father and that there was an existing family unit at that time.  Since the appellant has been in this country he and his wife have had two young children.  There is no evidence to suggest that the appellant and his nuclear family could not return to live with his father and brother in Kabul and resume the family life that existed in the past.

25.	Finally and importantly we have taken into account the fact that, for whatever reasons, the respondent chose to process the asylum applications for these two families separately. The appellant’s application for asylum was initially rejected on the basis that he was not accepted as being a national of Afghanistan while however his in-laws were accepted as Afghani citizens.  This alone demonstrates the problems and anomalous situations that can arise through failure to process family units, particularly those who arrive at the same time, all together.
26.	Even though that situation is regrettable, given the sheer volume of casework and the fact that clearly they have differing names there is perhaps some explanation as to why they were not processed together.  In addition we do not know whether those representing the appellant and the in-laws took all steps to ensure that they were processed together.  

27.	The appellant’s situation however differs from that set out in Arben Shala.  The Court of Appeal there noted that the application was a putative refugee at the time when he arrived from Kosovo in 1999 and the failure by the Home Office to process his application for some four years needed to be taken into account.This was particularly so ,given refugee status is declaratory and, as at least in international law terms, he had been legitimately in this country for the whole period of time and thus validly exercised his rights to establish family and private life.  This situation however differs from that because neither family were in fact found to be refugees and whether or not they were putative refugees at the time when they arrived in 2001 is a matter of far greater conjecture than was the case in Arben Shala, where it was quite clear cut.(At least in 1998 at the time of arrival, if not possibly soon thereafter following the Kosovan war, when arguably, in international law terms, cessation under Article 1C was applicable ).  

28.	This delay and the anomalous situation is a factor that has to be taken into account, we consider, but has nowhere near the same weight as was the case in the Arben Shala decision.

29.	We have thus balanced all of the items relating to this family and their extended in-laws both here and in Afghanistan and reached the conclusion that it would not be disproportionate for this family to be removed to Kabul where family life can be continued by the nuclear family and there can be resumption of family life with the appellant’s father and brother.  We have noted particularly the fact the in-laws in this country have extended leave to remain for only a period of another 18 months and that their predicament after that is speculative and that while the living conditions in Kabul are not good, this appellant will, it appears be returning to his own family home and appears to have come from a reasonably prosperous background.

30.	For these reasons therefore we consider that it would not be a breach of Article 8 of the ECHR should this appellant and his family be returned to Afghanistan.
31.	  We agree however that a recommendation for ELR, as put forward by the Adjudicator, has considerable logic.  In the current situation however we would only recommend that exceptional leave to remain be granted to coincide in its termination with that of the in-laws.  At that time the total extended family would be in a position to return and there would be a minimisation of the disruption to the family.  We make this recommendation principally because of the anomalous situation that has arisen in the past.

31.	The appeal however is dismissed.

A R Mackey
Vice President