BK (Kosovo – Subesh) Serbia and Montenegro [2005] UKIAT 00001                                	
																		
IMMIGRATION APPEAL TRIBUNAL

Date:  22 November 2004
	Date Determination notified:
	11 January 2005

Before:

The Honourable Mr Justice Ouseley (President)
Mr J Barnes (Vice President)
Mrs E Hurst JP

Between:

SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

	RESPONDENT

Appearances:	
For the Appellant:	Mr D Wantumi, Home Office Presenting Officer
For the Respondent:	Mr J Walsh, instructed by Birnberg Peirce & Partners 

DETERMINATION AND REASONS

1.	This is an appeal by the Secretary of State against the determination of an Adjudicator, Mr R A Miller, promulgated on 21 March 2003.  The Tribunal had allowed the Secretary of State’s appeal on 23 October 2003 but when permission to appeal was granted by the Court of Appeal in May 2004, its decision was quashed and remitted by the consent of the parties on 3 September 2004.  It was remitted on the basis of a particular point made by Sedley LJ in granting permission.

2.	The Claimant is a Muslim Kosovar from Pristina, born in 1972.  He arrived in the United Kingdom in April 1998 and claimed asylum.  He was granted Exceptional Leave to Remain until 1 August 2000.  He was refused permission to vary that leave to enter or remain, from which decision he appealed to the Secretary of State in 2002.  No asylum claim could be pursued before the Adjudicator and it was conceded that he had no family life engaging Article 8.  The case was argued exclusively on the right to a private life under Article 8.  This claim was based on the work which he had done and continued to do in the United Kingdom.  He had worked in doctor’s surgeries and, when funded, for the local NHS Trust as an interpreter for Albanian-speaking patients and translating hospital leaflets for them.  He had then started working with a local authority youth service and studied to obtain further relevant diplomas.  He was, at the time of the Adjudicator’s decision, a keyworker for behaviour improvement programmes.  This involved working with unaccompanied immigrant minors, assisting asylum teams and educational units.

3.	The Secretary of State submitted to the Adjudicator that the grant of Exceptional Leave to Remain was not to be seen as a lever to the development of a private life.  His private life had developed while his status was precarious;  his skills could be used in Kosovo;  there was nothing exceptional about the case.  Mr Walsh, for the Claimant, submitted that he was a resilient immigrant, who had behaved in an exemplary manner, without exaggerating his claim.  The private life he had developed was beneficial to the community.  Its need to retain his skills could not be over-emphasised.  He could not apply for entry clearance if he left and he would not be entitled to a work permit.  Indeed, the evidence actually was that the Claimant had been refused a work permit in April 2002 because he lacked the necessary qualifications and did not fulfil the evidential requirements for the work permit;  (that does not mean he was working illegally).

4.	The Adjudicator’s conclusions start in paragraph 16, as follows:

“16.	This Appellant has established a right to private life.  That right would be interfered with if he were removed.  The issue however resolves as to whether he can show that such an interference would be disproportionate to the legitimate needs of immigration policy. … It has been established that for interference to be disproportionate there must be circumstances exceptional to the Appellant’s position.  Yet the interference must still be necessary within one of the factors in sub-section 2.  Reality and common sense are not displaced by sub-section 2 but indeed are brought into the equation.  In this individual case the community’s safety and well-being, the prevention of disorder and crime and the protection of health and morals require that the Appellant remain in this country.  Therefore it is not possible to say that the legitimate application of immigration control necessitates his removal.  It does not.

17.	I therefore find that the Appellant on the low standard of proof establishes that he has exceptional circumstances in the development of his private life, namely his right to develop a life involving service and contribution to the community, an interference with which would be disproportionate to the legitimate requirements of effective immigration control.”

5.	The Adjudicator went on to say that he would have made a strong recommendation for the Claimant to stay because of the advantage of the work he did assisting the integration of young immigrants had he not allowed the Claimant’s appeal.  He allowed the appeal only on human rights grounds.

6.	Neither before the Adjudicator nor before the Tribunal did Mr Walsh rely on any Article 8 family life argument based on the Claimant’s developing friendship with a woman with whom he worked, but with whom he did not live.  It did not form part of the Adjudicator’s conclusions either.  We did not understand Mr Walsh to say that that deepening friendship, which still continued, was irrelevant to the private life of the Claimant, but the real factor upon which he relied was the fact of the Claimant’s employment and, more strongly, its particular nature.

7.	The Secretary of State appealed to the Tribunal on the grounds that the Adjudicator had no real basis for his conclusion on Article 8.  The Adjudicator had focused on compassionate grounds and good works and the lack of a false exaggeration.  Mr Wantumi, for the Secretary of State, referred to Beqiri [2002] UKIAT 00725, in which the Tribunal said:

“Adjudicators should not equate Article 8 deliberation with a subjective assessment of the value of an individual to the community or with the exercise to compassion or of some additional discretion.  Rather they should conduct the Article 8 ‘balancing exercise’ by reference to the principles as set out by the Court of Appeal in Mahmood.”

8.	We were also referred to the approach to proportionality issues in Edore [2003] EWCA Civ 716, [2003] INLR 361, as developed by this Tribunal in M* (Croatia) [2004] UKIAT 00024.  He pointed out that the Secretary of State in a supplementary reasons letter of 28 October 2002 had considered the work position of the Claimant and had said that the work had been undertaken whilst the Claimant knew that his immigration status was uncertain.  The Secretary of State considered other issues not now raised and concluded that the Claimant should be returned.  He did not have before him information as to the particular friendship which the Claimant had.

9.	Before us, Mr Walsh contended that the real issue was whether the Tribunal was entitled to interfere on the appropriate test and it was insufficient merely for there to be disagreement about the relative weight to be accorded to the material elements.  In his submissions, he drew upon paragraph 3 of Sedley LJ’s comments in granting leave, comments expressed in terms of arguability alone.  Mr Walsh submitted that the correct approach to the assessment of proportionality was not that in Edore and M* (Croatia) and that neither authority could now be regarded as good law in the light of the decisions of the House of Lords in Ullah and Razgar [2004] UKHL 26 and 27.

10.	In Razgar, paragraph 20, Lord Bingham dealt with whether interference with Article 8 rights in pursuance of a lawful immigration policy was proportionate to that legitimate end.  He said that a decision on proportionality involved striking a fair balance between the rights of the individual and the interests of the community.  He continued:

“The Secretary of State must exercise his judgments in the first instance.  On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may or may not have been before the Secretary of State.  A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal.  In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr Freeman) observed that:

‘although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.’

In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position.  I respectfully consider the element of overstatement to be small.  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.”

11.	The difference from Edore and M* (Croatia) relied on by Mr Walsh is the reference to the Adjudicator exercising his or her own judgment.  This showed, he said, that the Adjudicator should not be exercising simply a review jurisdiction.

12.	Mr Walsh then relied on Ullah at paragraph 15 to contend that there was a crucial distinction between the approach in “foreign” cases and “domestic” cases, and that this case was a domestic case.  Paragraph 15 of Ullah, so far as material, said:

“The crucial issue dividing the parties is, therefore, whether, in a foreign case, reliance may be placed on any article of the Convention other than article 3, and in particular whether reliance may be placed on article 9.”

13.	It is, however, necessary to look at other paragraphs in Ullah in order to understand the distinction that Lord Bingham was drawing.  At paragraph 9, he explained what he meant by his distinction.  A domestic case in relation to Article 8 was exemplified by Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471.  The Applicants were complaining in that case of a breach of Article 8 arising out of the refusal of leave to enter or remain to their husbands.  But the Applicants, who were the wives, were already settled here.  That was what made it a domestic case because the Applicants were complaining of an interference here with family life.  

“9.	Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant’s Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights in that other territory.  I call these ‘foreign cases’, acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory.  The question was bound to arise whether the Convention could be relied on to resist expulsion or extradition in a foreign case.”

14.	Lord Bingham further commented, in paragraph 18:

“As observed in paragraph 8 above, Abdulaziz was not a foreign case since the applicants’ complaint related not to the violation of their Conventions rights under article 8 which would occur if they were removed to another country but to the violation of those rights which they would suffer here if their husbands were refused entry or leave to remain.  Several authorities cited fell into the same category.  But some did not, and were of a hybrid nature.  The removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B.”

15.	After consideration of other cases for the purposes of considering whether in a “foreign” case Article 8 was available at all, Lord Bingham concluded that:

“… reliance may be placed on article 8 in a foreign case where the applicant can show that removal will seriously interfere with his rights guaranteed by article 8 and such interference is not shown to be justified.”

16.	Boultif v Switzerland [2001] 33 EHRR 1179, to which Lord Bingham made specific reference, concerned a non-Swiss applicant, married to a Swiss, facing removal, who was able to rely on Article 8.

17.	Mr Walsh then submitted that the approach of the Tribunal should be governed by Subesh and others v SSHD [2004] EWCA Civ 56, and paragraph 44 in particular.  That paragraph dealt with the position where the Tribunal, as here, has a jurisdiction over errors of fact and errors of law.  The appeal was not to be a re-run of the first instance hearing and it was insufficient merely for an Appellant to persuade the Tribunal to disagree with the Adjudicator on a factual issue.  Laws LJ said:

“An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one.  The divide between these position is not caught by the supposed difference between a perceived error and a disagreement.  In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms.  The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.”

18.	It is to be noted that the actual issues before the Tribunal upon which the Court of Appeal was ruling were not credibility issues but the weighing of the risk assessment factors for persons of a particular profile in the light of relevant Tribunal decisions on general country conditions.

19.	Mr Walsh further submitted that Beqiri was wrong insofar as it could be read as saying that a contribution to the welfare of the community was irrelevant to an Article 8 decision, although he recognised that purely compassionate factors were not relevant.  If the Adjudicator had gone too far in saying that the benefits of the work “require” that the Claimant remain in the United Kingdom, nonetheless the factors were relevant.  They were factors specifically referred to in Article 8(2).  Insofar as the Adjudicator had erred in paragraph 17 in referring to the “low standard of proof”, that error had played no part in the decision.  There was very little new material after the 28 October 2002 letter from the Secretary of State.  The later personal relationship was not relied on by the Adjudicator.  The relationship had deepened, but not into family life.  The essential features of the job remained the same.  There had been the continuation of the same sort of beneficial work and additional voluntary work.

20.	We now turn to our conclusions.  It is clear to our minds, in the light of the more extensive citations from Ullah which we have set out, that this Claimant’s case is a foreign and not a domestic case within those very broad and imperfect categories.  We were not entirely clear as to the significance which Mr Walsh sought to attach to this supposedly crucial distinction in view of the arguments about proportionality which he naturally addressed.  But it is a foreign case, like Boultif, because it concerns a claim to stay by someone who has no other entitlement to stay in the United Kingdom and it is not a claim by someone who is settled in the United Kingdom.

21.	Edore and M* (Croatia) raise a number of issues on proportionality which are not directly considered in Razgar.  The relevance of changed circumstances at the various stages of the appeal process and the interaction between what is lawful and the review jurisdiction are matters for another case.  We are not clear how far a different result was intended from the well-established Court of Appeal authorities in the absence of explicit reasoning from the House of Lords.  So far as M* (Croatia) is concerned, it specifically deals with how an Adjudicator should approach the issue of proportionality on the very assumption that in certain circumstances, the Adjudicator is exercising his or her own judgment.  We do not see that Razgar shows it to be wrong.  It simply sets out the question to be asked for the exercise of that judgment, as a means of attributing consistent and due weight to the legitimate interests of immigration control.  For present purposes, assuming that what Lord Bingham said in paragraph 20 of Razgar represents a different approach, in practice there may be very little difference in the result from that which would have been arrived at under Edore and M* (Croatia).  We emphasise the last sentence of paragraph 20.

22.	As to Subesh, it is worth making a few points.  We see paragraphs 46 and 47 as recognising that the nature of the factual issue which is being appealed, whether it is credibility based on oral evidence or background conditions based on documentary or oral evidence, may affect the ease or difficulty with which the Tribunal should be persuaded that it ought to adopt a different view from the Adjudicator.  For example, risk assessment may involve the ascertainment of factors based on a Claimant’s oral evidence.  It may involve the weighing of factors peculiar to that case, but it may involve the assessment of conditions in a country for someone of the particular profile of a Claimant.  We also point out that the test or approach required by the Court of Appeal is explicitly stated to be a general one and not one requiring sophistication.  It is plainly not as stringent a test as requiring irrationality or unreasonableness to be shown, as understood in the public law Wednesbury sense, for that would suffice to demonstrate an error of law.  It is necessarily a lesser test, best applied by asking, without undue sophistication, whether the Tribunal simply would prefer a different result as opposed to concluding that a different view is required.  It is only in the latter circumstances that it should allow an appeal on an error of fact.  “Unsustainability” is not the test and suggests that too restrictive an approach is being adopted.  We add that we would normally regard a decision departing from Tribunal guidance on the assessment of conditions in a country, in the absence of adequate and expressed reasons for such a departure, as involving an error of law through a failure to understand the guidance or to take it into account or to give legally adequate reasons for the departure.  It would not be just an error of fact.

23.	We take the view that the Adjudicator’s decision is clearly wrong, both applying the Subesh test, and indeed in law, although it is not necessary to go so far as to find an error of law here.  Far from the Adjudicator being required, as he said, to come to the conclusion which he did, he has given far too little weight to the interests of immigration control and a manifestly disproportionate weight to the limited content of the Claimant’s Article 8 claim.  He has also ignored what is a crucial factor, in the light of the weight he gave to the work done by the Claimant, namely that he was refused a work permit.  It is not necessary to conclude that the decision was irrational, though it may be.  This is because before applying Subesh to the weighing of factors, it is necessary to see whether an Adjudicator has asked the right question, or adopted the right approach.  His approach here does not reflect the tests in Edore or M* (Croatia).  Razgar is clear that decisions in the legitimate interests of immigration control will almost always be proportionate.  That indicates the real weight of the countervailing factors which must exist before the conclusion can be reached that the interests of immigration control should be set aside.  As we have said, we consider that, insofar as there is a conceptual difference between Edore, M* (Croatia) and Razgar, it would be rare for it to lead to a practical difference in its effect in any given case.  Adjudicators are not free simply to appraise matters as they see fit.  It is very difficult to see from the Adjudicator’s decision here, how in substance the Razgar approach can have been applied.  The factors relied on, namely that a person with Exceptional Leave to Remain, but no work permit and no other basis for staying, has been in beneficial employment for three years, are far too flimsy to mean that return is a disproportionate enforcement of immigration control.

24.	Although the Adjudicator referred to these circumstances as being “exceptional”, there is very little that is unusual about anyone with Exceptional Leave to Remain working and having friendships, providing a degree of benefit to the community.  Insofar as that reference to exceptional circumstances was said to show an accord with the approach of the House of Lords in Razgar, by reference to the last part of paragraph 20, we disagree.  It is perfectly clear that the content of the Article 8(1) claim here cannot fall within that small minority of exceptional cases to which Lord Bingham referred.  It would be to create a significant category of persons who would be entitled to some sort of leave, which could not be confined to those identical to the Claimant, and would extend to many analogous cases.  It is a mistake that the test in Razgar as satisfied merely because a case is unusual in some way or other, such that an unusual feature suffices for the interests of immigration control to be outweighed.  That is to substitute a less stringent test of exceptionality for what is, in truth, the recognition by the House of Lords that the interests of immigration control will nearly always outweigh the Article 8 claim.

25.	But, in any event, even if there was no error of law, we are compelled to a different conclusion from that arrived at by the Adjudicator.  It is necessary to point out how limited was the content of the private life.  There was, of course, no family life.  The content of the private life was the work undertaken by the Claimant and the benefit to the community which that brought.  No weight was given by the Adjudicator to the relationship which the Claimant had and, on Mr Walsh’s own case, it is not something which could be given more than very little weight.  It cannot be very important at all that the Claimant was an honest, failed asylum seeker, who had not exaggerated his case.  The Claimant had engaged in the beneficial work he had done, while he only had Exceptional Leave to Remain and knew that his immigration status was precarious.  The same is true of his relationship.  The Claimant had been refused a work permit in relation to that work because he was not qualified for it and could not provide the necessary evidence.  If the beneficial nature of the work is important, it is difficult to see how real weight could be given to that in the light of the refusal of the work permit.  There was no evidence either that others would not be able to take his place.  The substantive content of his private life is effectively no more than employment of a nature beneficial to the community whilst his immigration status was precarious, plus the sort of friendship which is likely to develop for anyone with a certain amount of time in a country.  It is plainly wrong to see that as a basis for outweighing the interests of immigration control.  The Secretary of State’s view appears to have been ignored or given little weight.  Taking Razgar at its most favourable to the Claimant, the Secretary of State’s view as to the weighing of factors is very important.  It appears to have been ignored.

26.	There are a whole range of subjective, value judgments which can be made about whether a job is beneficial to the community, or why it needs to be beneficial to the community in this sense as opposed to enabling a family to survive without state benefits and paying taxes, or eg enabling building work to be done more cheaply and quickly than would otherwise be the case.  The refusal of a work permit is of relevance here, as we have said.  Beqiri should not be seen as saying that such benefits to the community are irrelevant, but they are not by their nature circumstances which can be given much weight and the weight given here to the nature of the work was wholly disproportionate.  The Adjudicator treated it as a matter arising under Article 8(2) as a countervailing interest of the state.  It is possible to conceive of instances where that might be so, but it is difficult to see that the nature of the work done here properly fits into a state interest of the sort Article 8(2) is dealing with.  The possible benefit to the community from the nature of the work done is probably better seen as an aspect under Article 8(1) of the private life of the Claimant.

27.	We add two further comments on Mr Walsh’s submissions.  The suggestion that it would be disproportionate for the Claimant to be returned because he would be unable to obtain entry clearance is an illogical submission which the Adjudicator did not adopt.  The Immigration Rules should be regarded as a generally proportionate response to the various family and personal circumstances which arise in immigration control.  To permit someone to remain in the country on the basis that they would not be entitled to succeed in an application for entry clearance would be perverse.  It would give greater weight to those who could not succeed in an application for entry clearance, but were nonetheless in the United Kingdom, than to those who were potentially able to obtain entry clearance but had not come to the United Kingdom.  It is difficult to see why the significance of the Immigration Rules did not weigh heavily in the Adjudicator’s determination.

28.	Whilst we accept Mr Walsh’s point that there is no clear line in private life that can be drawn between compassionate circumstances and other circumstances, with the former being irrelevant to Article 8, nonetheless Beqiri is correct to point out that Article 8 is not to be the vehicle for the exercise of a sympathetic or compassionate judgment by reference to circumstances which are not relevant or weighty in relation to the content of an Article 8 private life claim, or to the degree of interference with it or to the proportionality of the removal decision.  Article 8 is not an all-embracing compassionate fallback for cases which may fail in other respects, in particular failures in relation to Article 3.  One can understand why the Adjudicator felt sympathy for the Claimant who was working hard in a useful job.  But that, which was virtually all the content of his Article 8 claim, could not outweigh the proper interests of immigration control, applying the approach in Razgar.

29.	We are by no means clear that the Adjudicator’s phrase about the low standard of proof did not lead him to err in the ease with which he thought that the proper interests of immigration control could be outweighed.  It is difficult, however, to see the scope for a standard of proof in the proportionality assessment itself.  In finding the facts, in a non-risk assessment case, it is difficult to see why the standard of proof should be other than the normal civil standard of the balance of probabilities.

30.	Accordingly, the appeal is allowed.  The case is reported for what we say about Subesh.

MR JUSTICE OUSELEY
PRESIDENT