E B Kosovo (FC) v Secretary of State for the Home Department [2008] UKHL 41, [2008] All ER (D) 334 (Jun)
House of Lords
Lord Bingham, Lord Hope, Lord Scott, Baroness Hale and Lord Brown
24 June 2008
There is no specified period within which an immigration decision has to be made; the facts, and with them government policy, may change over a period; and the duty of the decision-maker is to have regard to the facts, and any policy in force, when the decision is made. It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision.
Richard Drabble QC and Duran Seddon (instructed by Immigration Advisory Services) for the claimant. Philip Sales QC and Parishil Patel (instructed by the Treasury Solicitor) for the defendant.
The claimant arrived in the UK from Kosovo in September 1999, when aged 13. He claimed asylum four days later. Numerous delays ensued, however, and the claimant was not interviewed until April 2004, after more than four and a half years.
His application was refused and he appealed. The adjudicator dismissed the appeal. The claimant appealed to the Asylum and Immigration Appeal Tribunal on the ground that his removal would amount to a breach of his right to respect for his private and family life under Art 8 of the European Convention on Human Rights (the Convention). That appeal was dismissed in January 2006 and he appealed to the Court of Appeal. His case was chosen as one of four test cases to clarify the law on the effect of delay by the secretary of state on claims that relied on Art 8 to resist removal from the UK.
It was held that the effect in law of such delay was well settled by binding authority, and the claimant’s action would fail in any event on unrelated grounds. The claimant appealed to the House of Lords. The issue concerned what bearing delay by the decision-making authorities should have on a non-national’s rights under Art 8 of the Convention.
LORD BINGHAM:
His lordship considered Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] All ER (D) 338 (Mar). He ruled that there was no specified period within which, or at which, an immigration decision had to be made; the facts, and with them government policy, might change over a period, as it had in this case; and the duty of the decision-maker was to have regard to the facts, and any policy in force, when the decision was made.
It did not, however, follow that delay in the decision-making process was necessarily irrelevant to the decision. It might, depending on the facts, be relevant in any one of three ways. First, the applicant might during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the more likely that was to be true. To the extent that it was true, the applicant’s claim under Art 8 would necessarily be strengthened.
Expectation
Delay might be relevant in a second, less obvious, way. An immigrant without leave to enter or remain was in a precarious situation, liable to be removed at any time. Any relationship into which such an applicant entered was likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. A relationship so entered into might well be imbued with a sense of impermanence. But if months passed without a decision to remove being made, and months became years, and year succeeded year, it was to be expected that that sense of impermanence would fade and the expectation would grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depended on no legal doctrine but on an understanding of how, in some cases, minds might work and it might affect the proportionality of removal.
Delay might be relevant, third, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay was shown to be the result of a dysfunctional system which yielded unpredictable, inconsistent and unfair outcomes.
A system so operating could not be said to be predictable, consistent and fair as between one applicant and another or as yielding consistency of treatment between one aspiring immigrant and another. To the extent that was shown to be so, it might have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. As Carnwath LJ said in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] All ER (D) 409 (Jul) para 25: “Once it is accepted that unreasonable delay on the part of the secretary of state is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal.”
His lordship turned to the facts of this case. The adjudicator had not accurately or adequately addressed the human problem raised by the claimant’s appeal. The judgment of the appeal tribunal had done nothing to make good that deficiency. Plainly, the delay was relevant but whether, and to what extent, it was relevant when considering the overall proportionality of ordering the removal of the claimant had yet to be considered.
The case would accordingly be remitted for a fresh hearing by the appeal tribunal.
Lord Hope, Lord Scott, Baroness Hale and Lord Brown delivered concurring opinions.
