Zeqaj, R (on the application of) v Immigration Appeal Tribunal

Judicial review of an Immigration Appeal Tribunal decision is not a general rehearing. A new ground may be raised only where it has both a strong prospect of success and was readily discernible from the material before the Adjudicator and Tribunal. Rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000 must retain practical effect.

Where genuinely new circumstances arise after the Tribunal proceedings, the proper course is to make representations to the Secretary of State, whose refusal to treat them as a fresh claim may itself be reviewed. In an Article 8 proportionality assessment, delay is relevant only according to its proved consequences. The exceptional approach in Shala v Secretary of State for the Home Department was fact-specific and did not apply where it was uncertain that prompt consideration would have produced a beneficial immigration status.

The claimant, an ethnic Albanian from Kosovo, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The Tribunal had upheld an Adjudicator’s dismissal of his asylum and human-rights appeal against the Secretary of State’s refusal of asylum.

The claimant did not challenge the conclusion that he lacked a well-founded fear of persecution. His principal complaint concerned the Article 8 assessment, including family life, medical circumstances and the Secretary of State’s delay in deciding his asylum claim. The delay argument and several other grounds had not been raised before the Adjudicator or Tribunal. The central issues were whether those grounds were “Robinson obvious” and whether the removal decision was disproportionate.

1. The application was dismissed. The Tribunal’s decision disclosed no error of law. Judicial review could not be used as a free-standing appeal or rehearing on new facts and arguments.
2. Under rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000, the Tribunal was not required to consider grounds omitted from the application. Applying R v Immigration Appeal Tribunal ex parte Robinson, [1998] QB 929, as explained in R v Immigration Appeal Tribunal ex parte Shen, [2000] INLR 389, an unraised ground must both have a strong prospect of success and have been readily discernible before the Adjudicator and Tribunal. The delay ground satisfied neither requirement.
3. The Adjudicator had considered the delay insofar as it affected the claimant’s family life and had noted that the appellate delay was not attributable to him. The evidence did not establish that prompt consideration of the asylum claim would have resulted in asylum, indefinite leave to remain or a later extension of exceptional leave. Shala v Secretary of State for the Home Department, [2003] INLR 349, was distinguishable because it turned on the particular delay, policy and marriage-related immigration consequences in that case.
4. The Adjudicator had considered the claimant’s family as a whole, his partner, medical condition and the claimed obstacles to family life in Kosovo. The Tribunal was not required to search the evidence for arguments which had not been advanced.
5. Applying R v Secretary of State for the Home Department ex parte Razgar, [2004] UKHL 27, the proportionality question required a fair balance between individual rights and community interests. Lawful immigration-control decisions would be proportionate except in a small minority of exceptional cases. This was not such a case. Permission to appeal was refused.

• Adjudicator: dismissed the claimant’s asylum and human-rights appeal on 7 March 2003.
• Immigration Appeal Tribunal: refused leave to appeal on 10 April 2003.
• High Court (Administrative Court): dismissed the judicial review application and refused permission to appeal.