Jaha v Secretary of State for the Home Department

In an Article 8 removal case, proportionality requires a direct assessment of the fair balance between individual rights and immigration control. The inquiry is not confined to whether the Secretary of State’s decision fell within a Wednesbury range of responses. Circumstances of arrival and administrative delay may be relevant, but must be weighed with all material factors, including the reasons for remaining, the circumstances when a relationship formed and conditions in the country of return. A fact-specific decision does not establish a free-standing exception or checklist. An error in stating the test need not require remittal where it could not have affected the outcome.

Mr Ram Jaha, an ethnic Albanian from Kosovo, entered the United Kingdom in 1997 after claiming asylum in Germany. The Secretary of State issued a third-country certificate under the Dublin Convention and proposed removal to Germany. Legal proceedings delayed removal. Mr Jaha later married a British citizen with children and applied for leave to remain on the basis of the marriage.

The Secretary of State rejected the application. An adjudicator found removal disproportionate under Article 8 because obtaining entry clearance abroad might cause lengthy separation and financial hardship. The Immigration Appeal Tribunal reversed that decision, considering the changed situation in Kosovo and the likely entry-clearance process. Mr Jaha appealed, relying principally on Shala and challenging the Tribunal’s treatment of delay, his original basis for being in the United Kingdom and the proportionality test.

Appeal dismissed unanimously. The Immigration Appeal Tribunal was entitled to reverse the adjudicator on the factual issue concerning the likely delay in obtaining entry clearance. The remaining challenge concerned the effect of Shala.

1. Article 8 and immigration control. The guidance in Razgar required a fair balance between Convention rights and the community’s interest in a lawful immigration policy. Where removal pursued such a policy, necessity would almost always be established, subject to bad faith, an ulterior motive or deliberate abuse of power. Proportionality remained a direct assessment by the decision-maker or adjudicator.
2. Effect of delay and changed circumstances. Shala established no free-standing principle. It was a decision on its own facts. Delay in determining a proper claim, and the circumstances in which an applicant arrived, were relevant factors, but had to be assessed with all other relevant matters. These included the reasons for seeking to remain, the circumstances when the relationship was formed and the position in the country of return. It was rational to consider that conditions in Kosovo had materially improved by the time of Mr Jaha’s marriage.
3. Original basis for presence. Mr Jaha’s position was materially different from that in Shala. He had, at most, a claim to remain temporarily until it was safe to return him to Germany. The procedural obstacles which prevented removal until 2002 did not give him a substantive right to remain in the United Kingdom. The Tribunal’s description of his original claim as legitimate was, if anything, favourable to him.
4. Error in the Tribunal’s formulation. The Tribunal expressed the test in paragraph 26 as whether the Secretary of State’s decision fell outside the range of responses open to him. In light of Huang, that was an error of law. Remittal was unnecessary because the Tribunal had in substance balanced the relevant factors, and the Court was satisfied that the correct approach would produce the same result.

The appeal was dismissed, with costs to the respondent.

• Court of Appeal (Civil Division) [2005] EWCA Civ 968: dismissed Mr Jaha’s appeal and ordered costs for the respondent.
• Immigration Appeal Tribunal: reversed the adjudicator’s finding on Article 8 and held that the Secretary of State’s decision was within the range of responses open to him.
• Adjudicator: rejected the other grounds but found removal disproportionate because obtaining entry clearance abroad could cause lengthy family separation and financial difficulty.