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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gashi, R (on the application of) v Immigration Appeal Tribunal [2004] EWHC 680 (Admin) (08 March 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/B79.html Cite as: [2004] EWHC 680 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Monday 8th March 2004

1. MR JUSTICE KEITH: This is a claim for judicial review. The claimant is an asylum seeker from Kosovo. He arrived in the UK over 6 years ago but his claim for asylum has not yet been determined. That has not prevented his case from being considered by our courts in two sets of proceedings. Some people may say that it is the sort of case which lends support to those who advocate a streamlining of our asylum procedures.
2. The claimant is an ethnic Albanian. He claims that he was believed by his fellow Albanians to be collaborating with the Serbian authorities. Fearing that his family were about to be detained to ensure that he continued to collaborate with them, he escaped from Kosovo with his wife and four children on 3rd November 1997. They went to Greece via Macedonia, flying from there to the UK on 5th November 1997. The claimant claims that they had been in Greece for less than 24 hours. He had not claimed asylum there. He only claimed asylum on his arrival in the UK.
3. By a letter dated 5th December 1997 from the Immigration and Nationality Directorate of the Home Office, the Secretary of State for the Home Department ("the Secretary of State") certified that the conditions set out in section 2(2) of the Asylum and Immigration Act 1996 had been fulfilled. The claimant was therefore informed that he and his family were to be returned to Greece for his claim for asylum to be considered by the Greek authorities. On 14th January 1998 he applied for leave to apply for judicial review of that decision. He was given leave to apply for judicial review, but for reasons which do not appear on the documents which I have been provided with, the application (which by then had become known as a claim for judicial review) was not heard until July 2001. On 31st July 2001 Scott Baker J (as he then was) dismissed the claim. An application for permission to appeal to the Court of Appeal was refused by Keene LJ on a consideration of the relevant documents. The application was renewed but, following an oral hearing, it was refused by Butler-Sloss P and Keene LJ on 20th November 2001. Directions for the removal of the claimant and his family to Greece on 16th January 2002 were issued on 30th December 2001.
4. By then, over 4 years had elapsed since the claimant and his family had arrived in the UK. Not surprisingly, they had used the time to integrate into the community. They were living in accommodation in Ilford, provided for them by the London Borough of Redbridge, near to where at least one of Mrs Gashi's older brothers were living. The four children were going to local schools and were doing well there. Accordingly, representations were made to the Secretary of State by the claimant's then solicitors on 23rd November 2001, requesting the Secretary of State to grant exceptional leave to the claimant to remain in the UK on the basis that the removal of him and his family to Greece would be an interference with their human rights protected by Articles 3 and 8 of the Convention. The Secretary of State considered those representations but refused to grant exceptional leave to remain in the UK. The claimant was notified of that decision on 27th February 2002.
5. The claimant alleged that, in making that decision, the Secretary of State had acted in breach of the claimant's human rights, and in those circumstances he had the right of appeal against the Secretary of State's decision under section 65(1) of the Immigration and Asylum Act 1999. A notice of appeal was lodged on 25th April 2002, and the appeal was heard by the Adjudicator exactly a year later on 25th April 2003. The documents which I have been provided with do not indicate why it took so long for a hearing of the appeal to be convened, but it may simply have been the difficulty of arranging hearings quickly in view of the enormous number of appeals which Adjudicators hear.
6. By a determination promulgated on 19th May 2003, the Adjudicator dismissed the claimant's appeal. The claimant, who had not given evidence, had relied solely on Article 8, it having been argued on his behalf that the removal of him and his family to Greece would interfere with their private and family life. Two factors were relied upon. First, the claimant and his family would no longer be able to see Mrs Gashi's brothers, one of whom lived close by and had recently been granted indefinite leave to remain in the UK. Secondly, the children's schooling would be disrupted, and the children would be forced to face an uncertain future in Greece, and would be likely to experience difficulties in adapting to life there after so long in the UK.
7. The claimant applied for leave to appeal against the decision of the Adjudicator to the Immigration Appeal Tribunal ("the IAT"). Two grounds of appeal were advanced. First, the Adjudicator was said to have found that the effect on the claimant of the removal of his family was not a material factor when considering whether the claimant's right to respect for his private and family life under Article 8 had been infringed. Such an approach would have been contrary, so it is said, to what the IAT had said in Kehinde (01/TH/2668) and Beqiri [2002] UKIAT 00725. Secondly, the Adjudicator regarded the length of time which the claimant and his family had spent in the UK as equipping them better for life in Greece, initially at any rate. That was said to have been an irrelevant consideration.
8. The IAT refused the claimant leave to appeal, and it is that decision to which the current claim for judicial review relates. In his decision, one of the Vice-Presidents of the IAT said:

"I agree with the grounds of appeal to the extent that it is arguable that the Adjudicator did not consider how interfering with the family and private lives of his wife and children would impact on the claimant's human rights. However, I refuse permission to appeal because there is nothing in the material before me to show even an arguable case that the Adjudicator should have reached a different conclusion if he had considered the effects of the interference of the claimant's relatives' rights on the claimant's rights."

I read the IAT as having found that, had the Adjudicator not erred in his approach to the claimant's case, and taking the claimant's case at its highest, it would not have been open to the Adjudicator to conclude that the removal of the claimant and his family to Greece would have interfered with their right to respect for their private and family life under Article 8. Permission for the claim for judicial review to proceed was originally refused by Richards J. But it was subsequently granted at an oral hearing by Harrison J, who is said to have expressed concern "that the IAT had not specifically referred to the social worker's report in refusing leave to appeal." That was a report dated 2nd November 2000 from Ms Judy Hyde, a retired social worker, about the welfare needs of the claimant's four children.

9. For the purpose of this claim, the Secretary of State does not seek to go behind the finding of the IAT that it was arguable that the Adjudicator had erred in his approach to the claimant's case. Accordingly, it is submitted on behalf of the Secretary of State that the only remaining question is whether it was reasonably open to the IAT to conclude that, had the Adjudicator not erred in his approach to the claimant's case, and taking the claimant's case at its highest, it would not have been open to the Adjudicator to conclude that the removal of the claimant and his family to Greece would have interfered with their right to respect for their private and family life under Article 8.
10. Mr Satvinder Juss for the claimant criticises this approach. He submits that the flaws in the Adjudicator's reasoning were such that the Adjudicator had failed to perform his judicial function. He had failed to consider properly, or at all, whether the disruption to the close ties which existed with the claimant's wife's brother, and the disruption to the claimant's children's schooling and settled life in the UK, was disproportionate to, and outweighed by, the need to maintain the integrity of immigration control and consistency in its application. Accordingly, the only legitimate course for the IAT to have taken, so it is said, was to have granted leave to appeal, so that in due course the appeal could have been allowed, and the claimant's appeal from the Secretary of State's decision to refuse him exceptional leave to remain in the UK could be considered afresh by a different Adjudicator.
11. I cannot go along with this approach. It is well established in the jurisdiction of the IAT that an appeal will be dismissed, even if there were flaws in the approach of the Adjudicator, if the outcome of the appeal would inevitably have been the same in the absence of such flaws. It may be that if Article 8 is indeed engaged, and if therefore the removal of the claimant and his family would amount to an interference with their right to respect for their private and family life, it would not have been easy to determine what the Adjudicator would have found if he had approached what Mr Juss described as the "balancing exercise" required by Article 8(2) correctly. But leave to appeal to the IAT will properly have been refused if, taking the claimant's case at its highest, an Adjudicator, applying the law correctly to the facts of the case, would inevitably have concluded either that Article 8 had not been engaged at all, or that any interference with the right of the claimant and his family to respect for their private and family life would have been justified by Article 8(2).
12. Against that background, I deal first with whether, on the claimant's case at its highest, the removal of the claimant and his family to Greece could amount to an infringement of their rights to respect for their family life. That focuses on the claimant's family's need to be near Mrs Gashi's brothers. The brother who had been granted indefinite leave to remain in the UK was a married man with three children, who lived only a few minutes' walk away from the claimant and his family. The claimant and his family saw them every day. The status of Mrs Gashi's other brother had not been determined by the date of the hearing before the Adjudicator, but the evidence was that he had a disabled child and Mrs Gashi would provide help from time to time.
13. The relevant law as to what constitutes family life is summarised in MacDonald's Immigration Law and Practice, 5th edition, paragraph 8.57:

"Although the most important 'family' relationships are those between husband and wife and parent and child, relationships between siblings, between grandparents and grandchildren, and uncle and nephew, are all potentially within the scope of 'family life', depending on the strength of the emotional ties. But the Commission has held that Article 8 of the ECHR was not engaged by the deportation of a woman with her children from a country where her parents and sisters lived, on the ground that she and her family formed an independent family unit, so that the relationship with the extended family unit did not constitute family life (A and family v Sweden (1994) 18 EHRR CD 209). Generally, relationships between adult siblings or adult children and their parents will not fall within the scope of Article 8 (Advic v UK (1995) 20 EHRR CD 125), but in each case it is a question of fact whether there exist ties strong enough to constitute family life within the meaning of the Article."

14. It is important to note that the claimant and his family do not live with either of his wife's brothers' families and that they did not come to the UK together. Indeed, there was no suggestion that they had been living together in Kosovo which was a factor highlighted as important in Advic. Even though the claimant and his family see one of his wife's brothers and his family on a very regular basis, it would, in my opinion, not have been open to the Adjudicator to conclude, taking a view of the facts most benevolent to the claimant, that the families together constituted a single family unit. The only finding which could have been made was that the claimant's family for the purpose of Article 8 was his wife and children, and that his wife's extended family represented independent family units of their own.
15. I turn to whether, on the claimant's case at its highest, the removal of the claimant and his family to Greece would amount to an interference with their right to respect for their private life. That focuses on the need not to disrupt the children's schooling, and on the fact that they face an uncertain future in Greece, with difficulties in adapting to life after living so long in the UK.
16. The majority of the cases which have considered the right to respect for one's private life relate to persons with serious health problems, whether physical or mental. But the Court of Appeal recently had to consider the case of a family with four children whose case bore superficial similarities to the present case. The case is R (on the application of YA) v Secretary of State for the Home Department [2003] EWCA Civ 1012. In that case the claimant, a Turkish national, had arrived in the UK in 1999 with her husband and her four children aged 14, 13, 12 and 8, having had her claim for asylum rejected in Greece and Germany. The Secretary of State issued directions for her removal to Germany. It was claimed that the removal of the claimant and her family to Germany would interfere with their right to respect for their private life. The claimant relied on independent medical reports on her children. One of them concluded that the "removal from the UK to Germany would constitute a serious stressor for the four children, in particular [the second and third children]. This stressor would have a significant physical and psychological impact on their development and would constitute an event seriously detrimental to their well-being." Another doctor wrote:

"[The three older children] show evidence of considerable distres and unhappiness. There is evidence for lowered mood state and it is my opinion that they are at a very high risk of depressive disorder in the near future . . . It is my opinion that the combination of change, insecurity and sustained anxiety puts these children at high risk of future disturbance. That disturbance includes depression, anxiety and relationship problems."

17. Despite those concerns, the Court of Appeal held that any appeal which the family would have had to an Adjudicator would have been bound to fail since their removal to Germany would inevitably have been found to have been justified under Article 8(2). Indeed, at first instance Hooper J had said that it had not even been arguable that the claimants had shown a real risk of serious damage to the mental health of the children such that the removal would constitute an interference with their right to respect for their private life under Article 8(1). The Court of Appeal neither agreed nor disagreed with that conclusion, contenting itself to decide the appeal on the basis of Article 8(2).
18. Hooper J's conclusion shows that the threshold to establish interference with the right to respect for one's private life under Article 8(1) is a high one. In Djali v Immigration Appeal Tribunal [2003] EWCA Civ 1371, Simon Brown LJ (as he then was) at paragraph 16 described the effect of the Court of Appeal's decision in Razgar and others v Secretary of State for the Home Department [2003] EWCA Civ 840 as follows:

"Razgar establishes that, in cases of this sort, an Article 8(1) claim is capable of being engaged only if there are 'substantial grounds for believing that the claimant . . . would face a real risk' (Razgar paragraph 24) of 'serious harm to [his or her] mental health . . . caused or materially contributed to by the difference between the treatment and support that [he or she] is enjoying in the deporting country and that which would be available to [him or her] in the receiving country' (Razgar paragraph 22), that harm constituting 'a sufficiently adverse effect on physical and mental integrity, and not merely on health' as to engage Article 8 (Razgar paragraph 23)."

19. Of the claimant's four children, the two eldest, girls now aged 19 and 18, have both left school. The two younger children are both boys. They are now aged 16 and 11, so it is only their schooling which can now be disrupted, though the removal of the family now would disrupt the girls' further education. Ms Hyde's report, therefore, which was written over three years ago, has to be seen in that context. The concluding section of her report reads as follows:

"Under English Law (Children Act 1989) a guideline set by the UNCHR for refugees, the welfare of the child is paramount. For a child to become a competent and confident adult they must have stability and security. The Gashi children have experienced the trauma of living in a war zone and are still suffering anxiety, fear and dread but because they feel safe in England and have worked very hard at school they are beginning to come to terms with their past experiences. However, their fear of moving again to another country is palpable even from Rrezarta the most stable of the children. All the older children told me of their fear of having to learn another language, of having to fit into another educational system and of knowing nothing about Greece or anybody there. The role of their extended family in England has been very important.

The role of the parents in helping the children to settle in England has been crucial, but I am afraid that Mr and Mrs Gashi will not be able to cope with a further change and are just about 'at the end of their tether'.

I fully support the opinions of the children's school that being forced to leave England will cause great psychological damage and trauma and most importantly permanently affect their education -- this is particularly crucial in view of the fact that the Gashi children are all such promising scholars.

In my professional opinion forcing the Gashi children to leave England where they have spent three years learning to feel safe, stable and secure and are making excellent progress would permanently damage their future potential to become useful and productive adults."

20. Ms Hyde's report was based on one interview of the family at her home, not theirs. Her experience and academic expertise is in social work, not in psychiatry. I rather doubt whether she was qualified to say that being forced to leave England would cause the children psychological damage and trauma, and great psychological damage and trauma at that. Indeed, children adapt to changes in their lives in different ways and one might have expected to see different conclusions for each of the children rather than one which covers them all, irrespective of their age and characteristics. If there is force in the contention that they will experience great psychological damage and trauma as a result of being forced to leave the UK, I would have expected there to have been some medical support for that view. There is not.
21. Moreover, the thrust of the report plainly relates to the children's education. Paragraph 11 of the report describes the impact of their forced removal from the United Kingdom on their education as the most important of the factors which Ms Hyde identifies. She asserts in paragraph 12 that the removal of the children would permanently damage their future potential to become useful and productive adults; but it is difficult to see how that is anything more than an understandable concern that the disruption to their secondary education, which now only applies to the two younger children, will put them back academically. I do not wish to minimise the impact which that disruption might have, but to say that it would permanently damage their future potential to become useful and productive adults appears unduly pessimistic.
22. Bearing in mind the high threshold for establishing an interference with the right to respect for one's private life under Article 8(1), I have reached the conclusion that had the Adjudicator directed himself properly according to the law, and taking the claimant's case at its highest, it would not have been open to him to conclude that the removal of the claimant and his family to Greece would have amounted to an interference with the claimant's right to respect for his private life. But in any event, I have reached the further conclusion that had the Adjudicator directed himself properly according to the law and, taking the claimant's case at its highest, it would not have been open to the Adjudicator to conclude that such interference with his right to respect for his private and family life as his removal to Greece with his family would have resulted in would not have been disproportionate to, and outweighed by, the Secretary of State's need to maintain the integrity of immigration control and consistency in its application.
23. That is not to say that I do not have considerable sympathy for the claimant and his family. It will, no doubt, be a wrench for them to uproot themselves from the UK which has been their home for the last six years. But I have concluded that there is no basis for saying that their removal from the UK would be unlawful. It follows that this claim for judicial review must be dismissed.
24. MR JUSS: My Lord, your Lordship will forgive me, I heard your Lordship say that the claimant had chosen not to give evidence. In fact, both Mrs Gashi and others had given evidence.
25. MR JUSTICE KEITH: I said the claimant. Mr Gashi, who was the claimant, has not given evidence. I appreciate that before the tribunal were his witness statements. He did not give oral evidence. I know that his witness statement was before the tribunal, I know that his wife gave oral evidence, and I know that his daughter's witness statement was before the tribunal and that she gave evidence.
26. MR JUSS: I apologise, my Lord. I am instructed to apply for permission to appeal to the Court of Appeal.
27. MR JUSTICE KEITH: Yes, well, I refuse that application. In my view it does not have a sufficient chance of success to warrant the granting of leave to appeal.
28. MR PAYNE: My Lord, before I make an application for costs, you mentioned when giving judgment the cases of Kehinde and Beqiri. As I understand it, Kehinde was the IAT's decision that caused the confusion as to whether or not you looked at the wider rights, and Beqiri was, in fact, the decision which said you do look at the wider rights of dependants. That was subsequently confirmed by Jack J in AC. In so far as your decision, you put both of those cases together.
29. MR JUSTICE KEITH: I was summarising the grounds of appeal. I was saying that such an approach would have been contrary, so it is said, to those cases and that is the way it is put in the grounds of appeal.
30. MR PAYNE: I apologise. I was not trying to aggravate my Lord.
31. MR JUSTICE KEITH: No, you are absolutely right to seek to correct any mistake there was in the judgment. I do not think it was a mistake because I was merely quoting the grounds of appeal rather than saying whether or not they were correct.
32. MR PAYNE: My Lord, I understand the claimant in this case is privately funded and in those circumstances I will ask for an order of costs.
33. MR JUSS: My Lord, the normal course of events is that a costs order is not made. The conduct of this case, whatever shortcomings there might have been on the side of the lawyers, ought not to be visited on the claimants who are not working. Part of the difficulty in the evidence has been precisely because there is no legal funding in this case. The conventional rule should apply which is that there is no order for costs.
34. MR JUSTICE KEITH: The conventional rule is each side pays its own costs?
35. MR JUSS: Yes.
36. MR JUSTICE KEITH: But that is in a case in which the claimant are you talking about claims for judicial review in asylum cases?
37. MR JUSS: Yes, my Lord.
38. MR JUSTICE KEITH: That presumably only applies to cases where the claimant is publicly funded? You had better show me the passage in the white book.
39. MR JUSS: My Lord, I cannot remember the precise paragraph.
40. MR JUSTICE KEITH: Approximately where would I find it?
41. MR JUSS: Eighty-six, if I am not mistaken.
42. MR JUSTICE KEITH: Alright then.
43. MR PAYNE: My Lord, the passage I was going to refer you to, at page 1366, 54.16.7, and it says that costs in judicial review generally follow the event and the unsuccessful party are generally ordered to pay the costs of the successful party.
44. MR JUSTICE KEITH: Yes. Do you want to show that passage to Mr Juss and see whether it is the passage that he had in mind?
45. MR JUSS: The court has a discretion but it says the courts do not generally order an unsuccessful claimant to pay two sets of costs.
46. MR JUSTICE KEITH: The IAT, the defendant, has not incurred any costs on this claim for judicial review. All the costs have been incurred by the interested party, the Secretary of State. That is right, is it not?
47. MR PAYNE: My Lord, that is correct.
48. MR JUSS: It does say defence costs and the costs of the interested party.
49. MR JUSTICE KEITH: There is no application by the IAT for costs. The only application for costs is by the Secretary of State.
50. MR JUSS: The interested party. That is specifically referred to in the paragraph.
51. MR JUSTICE KEITH: That is right. It does not order an unsuccessful claimant to pay two sets of costs, ie, the defendant's costs and the costs of the interested party.
52. MR JUSS: Well, my Lord, it catches me somewhat unawares. I wish my learned friend had indicated to me he was minded to make that order for costs. I must confess, and it is new to me --
53. MR JUSTICE KEITH: You are right in saying it is unusual. The Secretary of State does not normally ask for his costs in a claim of this kind but that is because the claimant, invariably, is publicly funded and it is really, at the end of the day, a question of costs moving from one department to another. However, this is not that case. This is a case in which he tells me, and you have not disputed, that your clients are not publicly funded. They have, at any rate found sufficient money, maybe by borrowing from family and friends, to pay for their own legal representatives.
54. MR JUSS: Well, my Lord, I am not at liberty to disclose precisely on what basis I appear. All I say is in the circumstances of this case, plainly costs can not only be punitive in its impact on the claimant but, quite frankly, if you would be so minded, meditate against any further application to the Court of Appeal. Really, there are matters of some substance that have been gone into in today's hearing. Surely in the public interest that where one has a person, a vulnerable asylum seeker, make an application to this court to be visited with costs is going to dramatically alter the way in which cases are advanced. The claimant has difficulty because if the order is made they will have to find the money.
55. MR JUSTICE KEITH: If the order is enforced.
56. MR JUSS: Yes, my Lord. Even in my limited judicial lifetime, one gets costs even against counsel. It does dramatically alter the practice. That is all I would say. It would be unfortunate, that is all I say. Really, I know your Lordship has reached a different view, but there are matters of some importance that needed going into.
57. MR JUSTICE KEITH: I do not say for one moment that the outcome of this case is not anything but of the greatest possible importance to your clients. That does not mean that the issues in this case raised questions of legal importance.
58. Mr Payne, is the Secretary of State prepared to undertake, if an order for costs were made in his favour, that he would not enforce those without leave of the court?
59. MR PAYNE: My Lord, yes.
60. MR JUSS: I am very grateful.
61. MR JUSTICE KEITH: That is probably the best you can hope for. That is the order I shall make. Upon the Secretary of State undertaking not to enforce the order for costs without leave of the court, the order for costs which I make is that the claimant must pay to the Secretary of State his costs of this claim, to be the subject of detailed assessment if not agreed. Thank you very much.