Janjanin v Secretary Of State For Home Department

In an Article 8 proportionality assessment, administrative delay in deciding an asylum claim is relevant but is not ordinarily decisive. It may carry decisive weight where the delay deprived the applicant of a likely grant of status which would have materially changed the Article 8 position. A claimant must establish that causal prejudice on the evidence. A prospect of success during only a short and uncertain part of a proposed decision period does not suffice. Length of residence and valuable work in the United Kingdom remain relevant circumstances, but do not themselves make removal disproportionate to the legitimate aim of immigration control.

Two ethnic Serbs from Croatia appealed Immigration Appeal Tribunal decisions dismissing their challenges to removal. Both had made unsuccessful asylum claims and relied principally on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom.

Mr Musanovic and his wife had undertaken valued work for a head-injury charity. Miss Janjanin worked in a responsible National Health Service role and had received an adjudicator’s recommendation for exceptional leave to remain. Each contended that delay in deciding the asylum claim had deprived them of likely protection and brought their cases within the reasoning in Shala.

The central issue was whether delay, together with their private or family life in the United Kingdom, made removal disproportionate.

1. The appeals were dismissed unanimously. Kay LJ held that neither appellant had established the factual basis for a Shala-type Article 8 claim. Wall LJ agreed and gave additional reasons. Thorpe LJ agreed.

2. The reasoning in Shala v Secretary of State for the Home Department [2003] EWCA Civ 233 was fact-specific. In that case, administrative delay had deprived the claimant of a likely grant of refugee status or exceptional leave to remain. That status would have enabled an in-country application founded on the family life formed during the delay. The resulting requirement to leave the United Kingdom was therefore disproportionate.

3. Delay is a relevant factor in the Article 8(2) balance, but it is not determinative merely because it extends residence and permits private or family life to develop. The claimant must show, on the available evidence, that a reasonably prompt decision would probably have produced leave or another status materially affecting the Article 8 position.

4. Miss Janjanin could not show that she would likely have received asylum or exceptional leave to remain within the proposed six-month period. The applicable policy did not create the asserted likelihood, she was not from the specified war-affected area, and the explained statistics did not assist her. Mr Musanovic could show no more than a possible favourable period of limited duration. His argument had not been advanced before the adjudicator or Tribunal, so there were no findings capable of establishing the necessary likelihood. A temporary prospect of success did not require a later decision to be favourable after country conditions had changed.

5. The court left open whether Shala could assist a person with no basis for remaining other than Article 8. Valuable work and a recommendation for exceptional leave were relevant circumstances, but questions of exceptional-leave policy were for the Secretary of State.

• Court of Appeal (Civil Division): Dismissed both appeals from the Immigration Appeal Tribunal: [2004] EWCA Civ 448.
• Immigration Appeal Tribunal: Dismissed Mr Musanovic’s asylum appeal and rejected his Article 8 claim on the merits. It also dismissed Miss Janjanin’s asylum, Article 3 and Article 8 challenges.
• High Court: In Miss Janjanin’s case, quashed the refusal of permission to appeal to the Immigration Appeal Tribunal. Permission was subsequently granted.
• Adjudicator: Rejected both asylum claims. The adjudicator considered the appellants’ valued work and made recommendations concerning exceptional leave to remain.