Strbac & Anor v Secretary of State for the Home Department

An Article 8 removal decision requires an overall, fact-sensitive proportionality assessment. Administrative delay in deciding an immigration or asylum application may be relevant, but it is not determinative. It must have substantial consequential effects before it can materially affect the balance.

Shala created no free-standing rule requiring a person to be treated as though leave had been granted earlier. An Article 3 risk assessment is prospective. Past discrimination may evidence future risk, but cannot itself form part of an anticipated future breach. Article 14 cannot convert treatment below the Article 3 threshold into a breach of Article 3.

The appellants were Croatian ethnic Serbs. The Secretary of State refused the first appellant’s asylum claim and leave to enter. An Adjudicator dismissed his appeal on 23 December 2002. The Immigration Appeal Tribunal dismissed a further appeal on 15 June 2004.

Before the Court of Appeal, the appellants relied on delay in determining the asylum claim and the approach in Shala [2003] EWCA Civ 233. They also contended that the first appellant’s age, loss of his flat, difficulty obtaining work and discrimination against Serbs in Croatia distinguished the country guidance in S & K and DK. The central issues were whether removal would be disproportionate under Article 8, and whether return created a viable asylum or human-rights claim.

1. Permission to appeal was granted, but the appeal was dismissed. Laws LJ gave the reasons. Longmore and Scott Baker LJJ agreed.

2. Shala [2003] EWCA Civ 233 was a decision on its exceptional facts, not a source of a separate legal rule. Delay may be relevant to Article 8 proportionality where it is substantial and has consequential effects beyond time alone. It cannot require a decision-maker to assume that an applicant would have obtained leave had the claim been decided earlier. The decisive feature in Shala was the loss of a procedural right to seek an in-country variation of leave after marriage. No comparable feature existed here.

3. The correct Article 8 approach, stated in Huang [2005] EWCA Civ 105, required the adjudicator to make his own proportionality judgment. Departure from the balance generally struck by the Immigration Rules required truly exceptional facts. There was no interference with the first appellant’s family life because his wife had arrived with him and could return with him. The asserted private life was slight. The delay and the possibility of a more favourable asylum outcome in 1999 did not make removal disproportionate.

4. An Article 3 claim concerns the real risk of future treatment. Past ethnic discrimination, including the seizure of a home, may illuminate the future assessment but cannot itself be part of an anticipated continuing breach. The appellant’s circumstances did not disclose the requisite severity of future ill-treatment, persecution, or an Article 3 breach.

5. Article 14 is adjectival. It could not turn conduct falling below the Article 3 threshold into an Article 3 violation merely because it was discriminatory. Racial hatred might increase ill-treatment to the Article 3 threshold, but that would be an Article 3 breach directly. Article 8 did not confer a right to a home, a particular home, or employment. An Article 8 claim combined with Article 14 required close examination of the actual effect on the substantive Article 8 interest.

6. The appellant’s age and inability to recover his former flat did not materially distinguish his case from the country guidance in S & K [2002] UKIAT 05613 and DK [2004] UKIAT 00153. The Tribunal’s reasons were sparse, but it had addressed the housing issue and was entitled to find that other accommodation would be available. The omitted matters could not have altered the outcome.

• Court of Appeal (Civil Division) — Granted permission and dismissed the appeal in [2005] EWCA Civ 848.
• Immigration Appeal Tribunal — On 15 June 2004, dismissed the appeal from the Adjudicator.
• Adjudicator — On 23 December 2002, dismissed the appeal against the Secretary of State’s refusal of asylum and leave to enter.