Janosevic v Secretary of State for the Home Department

Where an appellant cannot succeed under the Immigration Rules, an appeal on Article 8 grounds can succeed only if the case is so exceptional on its particular facts that proportionality imperatively requires a favourable outcome. Administrative delay may be relevant where it is substantial and has broad consequences beyond the bare passage of time. Its effects must be very substantial before it can determine the result. Treating delay alone as outweighing effective immigration control, without identifying exceptional circumstances or specific prejudice, is an error of law.

Dusan Janosevic and his wife, Croatian Serbs, entered the United Kingdom in December 1998 after being refused asylum in Norway. The Secretary of State refused their asylum and humanitarian protection claims in June 2003. An adjudicator dismissed the asylum and Article 3 claims but allowed the Article 8 appeal, relying principally on administrative delay and family and private life in the United Kingdom.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. The appellant argued that the adjudicator had made no error of law within sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002, and that the Tribunal’s reasoning was procedurally unfair and legally flawed. The central issues were whether the adjudicator’s approach disclosed a material error of law and whether the Tribunal’s decision could stand.

1. The appeal was dismissed unanimously. The adjudicator’s decision disclosed errors of law, and the Immigration Appeal Tribunal therefore had jurisdiction to hear the Secretary of State’s appeal.
2. The statutory appeal regime under sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002 confined appeals to errors of law. The Tribunal could set aside the adjudicator’s decision for a material error and make any decision which the adjudicator could have made.
3. Where an appellant cannot succeed under the Immigration Rules, an adjudicator may allow an Article 8 appeal only where the case is so exceptional on its particular facts that the imperative of proportionality requires an outcome in the appellant’s favour. The court applied the approach stated in Huang [2005] EWCA Civ 105.
4. Administrative delay may be a relevant factor where it is substantial and produces broad consequences beyond the bare passage of time. Its effects must be very substantial before delay can drive the decision in the appellant’s favour. The adjudicator had identified no specific prejudice beyond the passage of time and had not applied the required exceptionality approach. The court relied on Strbac [2005] EWCA Civ 848 and considered that Akaeke [2005] EWCA Civ 947 cast no doubt on those principles.
5. The Tribunal was entitled, as a specialist tribunal, to rely on common knowledge that the volume of asylum cases contributed to delay. Its explanation was not determinative of the outcome and did not make the decision procedurally unfair. The Tribunal’s proportionality conclusion disclosed no further error of law. The restored application and permission to appeal on the other grounds were dismissed. Detailed assessment for the purposes of the Legal Services Commission was granted for the appellant’s costs.

• Court of Appeal (Civil Division): in [2005] EWCA Civ 1711, the appellant’s appeal against the Immigration Appeal Tribunal’s decision was dismissed. Permission to appeal on the other grounds was refused.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal from the adjudicator’s decision.
• Adjudicator: dismissed the appeals concerning asylum and Article 3 but allowed the Article 8 appeal, holding removal disproportionate in the circumstances.
• Secretary of State for the Home Department: refused the appellant’s claims for asylum and humanitarian protection.