Shala v Secretary of State for the Home Department

When removal interferes with family life, the court must assess whether a fair balance has been struck between the individual’s rights and effective immigration control. Immigration control attracts a significant area of judgment, but policy cannot be applied automatically.

Prolonged official delay may be an exceptional circumstance. Where a timely asylum decision would probably have given the applicant leave and enabled an in-country application based on family life, the decision-maker must give that lost opportunity proper weight. Requiring an application from abroad may otherwise be disproportionate, particularly where family life cannot realistically continue in the country of return.

The appellant, an ethnic Albanian from Kosovo, claimed asylum on arrival in the United Kingdom. The Home Office did not determine his claim for more than four years. During that period he formed a family relationship with a recognised refugee and assumed a parental role towards her two sons. They later married.

An adjudicator dismissed both the asylum appeal and the human-rights appeal under Section 65 of the Immigration and Asylum Act 1999. Although accepting that the family could not reasonably live together in Kosovo, the adjudicator considered that the appellant could return there and apply for entry on marriage grounds. The Immigration Appeal Tribunal dismissed his further appeal.

The Court of Appeal granted permission during the hearing. The central issue was whether removal was a proportionate interference with family life under Article 8 of the European Convention on Human Rights, given the Home Office’s delay and the immigration status the appellant would probably have obtained had his claim been determined promptly.

1. Appeal allowed unanimously. Keene LJ held that the Immigration Appeal Tribunal had erred in treating removal as proportionate. Schiemann LJ agreed and gave additional reasons. Rix LJ agreed with both judgments. The case was remitted to the Secretary of State.

2. Proportionality review in a human-rights case is more intensive than traditional Wednesbury review. The court may examine the balance struck and the relative weight given to competing interests. Its function nevertheless remains review rather than a fresh merits decision. The appropriate intensity depends on the subject matter. Immigration control falls particularly within the constitutional responsibility of the democratic authorities, so the Secretary of State enjoys a significant area of judgment.

3. That margin did not make immigration policy automatically decisive. The exceptional feature was the Home Office’s delay of more than four years. Had the asylum claim been handled with reasonable efficiency, the appellant would probably have obtained refugee status or at least exceptional leave to remain. He could then have applied from within the United Kingdom to vary that leave on marriage grounds. The delay had deprived him of that advantage through no fault of his own.

4. The usual policy requiring a person without leave to seek entry clearance abroad serves consistency and prevents applicants from evading proper screening or jumping the queue. Those reasons had limited force here. The appellant claimed asylum immediately upon arrival during the Kosovo conflict and was then a meritorious applicant for at least temporary permission to remain. Applying a policy designed for ordinary cases without considering why it existed was the wrong approach.

5. The formation of the relationship while the appellant’s status remained unresolved was a relevant and important consideration. It did not outweigh the unaddressed consequences of official delay. The family could not reasonably be expected to live in Kosovo, and there was no secure basis for treating separation during an overseas application as brief. Requiring the appellant to leave and apply from Kosovo was therefore clearly disproportionate, even allowing the Secretary of State a generous margin of discretion.

1. Court of Appeal (Civil Division): Permission to appeal was granted during the hearing. The appeal was allowed unanimously and the case was remitted to the Secretary of State.
2. Immigration Appeal Tribunal: The appellant’s appeal was dismissed. The Tribunal held that removal to Kosovo, followed by an application for entry clearance on marriage grounds, would not be a disproportionate interference with Article 8 family life.
3. Adjudicator: The asylum and human-rights appeals were dismissed. The adjudicator accepted that the family could not reasonably relocate to Kosovo but concluded that removal for an overseas entry-clearance application would not breach Article 8.