House of Lords

Published June 30, 2008

EB (Kosovo) v Secretary of State for the Home Department

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

Speeches June 25, 2008

Delay in decision-making enabling an asylum-seeker to establish a family life might be a relevant factor in considering an appeal against refusal of asylum.

The House of Lords (Lord Scott and Lord Brown dissenting in part) allowed an appeal by EB from the dismissal by the Court of Appeal (Lord Justice Buxton, Lord Justice Latham and Lord Justice Longmore) ([2007] Imm AR 396) of his appeal from the dismissal by the Asylum and Immigration Tribunal of his appeal from an adjudicator.

Mr Richard Drabble, QC and Mr Duran Seddon for EB; Mr Philip Sales, QC and Mr Parishil Patel for the Home Secretary.

LORD BINGHAM said that EB, a Koso-var, had entered the country on September 2, 1999, aged 13, and claimed asylum. It had been refused on April 27, 2004, a delay of over four-and-a-half years.

Conditions in Kosovo having changed, he now had no ground for claiming asylum, but had his application been decided before December 10, 2003, when he had become 18 and so ceased to be an unaccompanied minor, he would, depending on the date of the decision, under the policies in force from time to time, have been granted exceptional leave to remain for four years or until 18, with at least the chance of obtaining indefinite leave to remain thereafter.

The Secretary of State for the Home Department now sought to remove him to Kosovo. He resisted removal, relying on his rights under article 8 of the European Convention on Human Rights to respect for his private and family life with his uncle and girlfriend.

Delay in the decision-making process might 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.

Second, any relationship into which an immigrant without leave to enter or remain entered was likely to be, initially, tentative. With time, however, that sense of impermanence would fade and the expectation would grow that if the authorities had intended to remove him they would have taken steps to do so.

Third, delay might be relevant in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control if it was shown to be the result of a dysfunctional system that yielded unpredictable, inconsistent and unfair outcomes. EB’s cousin, who had entered the country and applied for asylum at the same time, had been granted exceptional leave to remain.

Consideration of an appeal under article 8 called for a broad and informed judgment that was not to be constrained by a series of prescriptive rules.

His Lordship could not accept that the adjudicator had accurately or adequately addressed the human problem raised by EB’s appeal. The tribunal’s judgment had done nothing to make good that deficiency. Plainly, the secretary of state’s delay in resolving EB’s application was relevant in the first way that his Lordship had indicated.

Whether, and to what extent, the delay, and the manner of the handling of his claim, were relevant when considering the overall proportionality of ordering his removal had yet to be considered. That required a judgment in the round. The matter should be remitted for a fresh hearing by the tribunal.

Lord Hope delivered an opinion agreeing with Lord Bingham.

LORD SCOTT, agreeing with the result but not the remedy, said that no decision-maker acting reasonably and proportionately could order EB’s return to Kosovo. The unfairness of depriving him of the benefit of the unaccompanied minors policy was overwhelming and he would not remit the case to the tribunal.

Lady Hale agreed with Lord Bingham and Lord Hope.

LORD BROWN agreeing with Lord Bingham’s disposal of the appeal, said it was imperative that there was consistency of treatment between applicants, but he could not accept that delay might be relevant in reducing the weight to be accorded to the requirements of fair and firm immigration control.

Solicitors: Immigration Advisory Service; Treasury Solicitor.

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