Secretary of State for the Home Department v Alihajdaraj

In an Article 8 removal case, proportionality requires a fair balance between the individual’s protected family life and the substantial public interest in effective immigration control. Removal will ordinarily be proportionate save in a small minority of exceptional cases, assessed on their facts.

Family life based on regular contact with extended relatives may be engaged, but its tenuous character carries limited weight. Administrative delay assists an applicant only where its consequences materially affect the balancing exercise. A decision concerning a spouse and strong family unit does not govern materially different circumstances.

An appellate immigration tribunal must identify why an adjudicator’s reasoning or application of law requires a different conclusion. It may not simply substitute a preferred factual appraisal.

The claimant, an ethnic Albanian from Kosovo, arrived in the United Kingdom in 1998 and claimed asylum. His cousin, who travelled with him, later received indefinite leave to remain. The claimant’s asylum and Article 3 claims failed, but the adjudicator accepted that his regular contact with his cousin and other relatives amounted to family life and allowed his appeal under Article 8 of the European Convention on Human Rights.

The Immigration Appeal Tribunal accepted that family life existed but allowed the Secretary of State’s appeal on proportionality. The claimant appealed to the Court of Appeal. The central issues were whether the Tribunal could overturn the adjudicator’s proportionality assessment and whether Shala required the claimant’s removal to be treated as disproportionate.

1. Appeal dismissed unanimously. Jackson J, with whom Clarke and Tuckey LJJ agreed, held that the Tribunal had rightly concluded that removal was a proportionate interference with the claimant’s Article 8 family life.

2. The Tribunal’s reasons were sparse. It could not properly overturn an adjudicator merely by preferring its own appraisal of the facts. It had to identify why the adjudicator’s reasoning and application of the relevant law required a different result. However, the adjudicator’s proportionality reasoning was materially flawed, and the appeal to the Tribunal could only properly have resulted in removal.

3. Applying the questions in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 17, the parties accepted that removal interfered with family life, that the interference was sufficiently grave, lawful, and necessary for a legitimate aim. The only issue was proportionality under Article 8.2.

4. The claimant’s family life was real but tenuous. He did not live with his relatives and his principal contact was weekly contact with a cousin. He had no asylum claim or other right to remain, was a healthy young man, and could return to Kosovo, where his aunt remained. Those factors carried modest weight when balanced against the substantial public interest in effective immigration control and the Immigration Rules (HC 395).

5. The adjudicator gave undue weight to delay in processing the asylum claim, to the cousin’s earlier grant of status, and to irrelevant general considerations. Shala v Secretary of State for the Home Department [2003] EWCA Civ 233 was confined to its materially different facts, including prolonged delay, a strong marital family life, and a likely right to return as a spouse. It did not assist this claimant.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal and upheld the conclusion that removal was proportionate under Article 8: [2004] EWCA Civ 1084.
• Immigration Appeal Tribunal Accepted that family life existed, but allowed the Secretary of State’s appeal against the adjudicator on the ground that removal was proportionate.
• Adjudicator Dismissed the asylum and Article 3 claims but allowed the appeal under Article 8 of the European Convention on Human Rights.