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

On judicial review of a refusal of leave to appeal, the court may intervene only where it is clearly arguable that the adjudicator’s proportionality conclusion fell outside the legally permissible discretionary area of judgment.

Where the Secretary of State has not considered Article 8, the adjudicator must reach an independent conclusion on proportionality. Immigration control remains a weighty consideration. Delay is ordinarily relevant, but will rarely be decisive in a private-life case without special circumstances and particular prejudice. The adjudication must be read as a whole. A failure to mention every factor in the concluding paragraph does not establish an error of law where the relevant matters were considered in the hearing and determination.

The claimant, an ethnic Albanian from Kosovo, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s dismissal of his asylum and Article 8 claims.

The adjudicator accepted that the claimant had established a private life in the United Kingdom, but found removal proportionate. The claimant argued that the adjudicator had failed adequately to consider his initially legitimate claim, Home Office delay, and the Court of Appeal’s decision in Arben Shala v Secretary of State for the Home Department, [2003] EWCA Civ 233.

The central issue was whether the Tribunal erred in law in concluding that the adjudicator’s proportionality assessment was legally open to him.

1. The application for judicial review was dismissed. Permission to appeal was refused, with no order as to costs.

2. The court could not intervene merely because it might have struck the proportionality balance differently. Intervention required a clearly arguable case that the adjudicator’s conclusion was outside the discretionary area of judgment available to him, so that the Immigration Appeal Tribunal had erred in refusing leave.

3. Where the Secretary of State has not considered Article 8, the adjudicator must reach his own conclusion on whether removal would be disproportionate. The appellate tribunal does not acquire a power to substitute its own independent conclusion at every successive stage. Immigration control will usually carry very considerable weight.

4. Delay is relevant to proportionality. The guidance concerning the Shala point, as summarised in J, 2004 UKIAT 16, requires special or exceptional circumstances, an initially legitimate claim, a likelihood that efficient handling would have led to exceptional leave to remain, and private or family life significantly established as a result of the delay. Even then, delay will rarely be decisive in a private-life case without particular prejudice.

5. The adjudicator’s determination had to be read as a whole. It recorded the claimant’s private life, the Home Office delay and its responsibility for that delay, the Shala authority, the Article 8 framework, and the relevant circumstances on return. The adjudicator then carried out the required balancing exercise. His conclusion that removal was proportionate was legally open to him.

• Adjudicator: The claimant’s appeal was dismissed, including on Article 8 grounds.
• Immigration Appeal Tribunal: Leave to appeal was refused on 25 July 2003. The Tribunal considered the adjudicator entitled to conclude that removal was proportionate.
• High Court (Administrative Court): The judicial review claim was dismissed. Permission to appeal was refused.