Lekstaka, R (on the application of) v Immigration Appeal Tribunal & Anor

On judicial review of an Immigration Appeal Tribunal refusal of permission to appeal, the reviewing court may intervene where there is a real chance that the appeal would succeed. In an Article 8 removal case, the adjudicator must assess proportionality afresh and examine the individual circumstances. Immigration control will ordinarily justify removal, but the exception is not confined by rigid categories. A case may be exceptional where removal would end the applicant’s only established family life and the circumstances fall within the spirit, though not the letter, of the Immigration Rules or policy. Sympathy alone is insufficient. The decision-maker must engage with the applicant’s particular family relationships, dependence, and the practical consequences of removal.

The claimant, a Kosovo Albanian, entered the United Kingdom aged 16 after his father was killed and his mother and sister disappeared. He was accepted as having established family life with his aunt, uncle and cousin, who treated him as a son. The Secretary of State refused asylum and set removal directions. The adjudicator dismissed his appeal, and the Immigration Appeal Tribunal refused permission to appeal, stating that there was no error of law.

The judicial review claim challenged the Tribunal’s approach to the Article 8 issue and was also met by an objection based on delay. The central questions were whether delay should bar the claim and whether the Tribunal should have granted permission where the adjudicator may have applied the wrong proportionality approach.

1. Delay. The claim was not refused for delay. Although the claim was lodged more than three months after the relevant decision, the claimant had acted reasonably promptly in obtaining replacement solicitors, legal aid and counsel. The court expressed the view that, in principle, time under Rule 54.5 runs from the date of the decision, rather than notification, although allowances may be made for the period before notification.
2. Article 8 approach. Following Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, the adjudicator had to consider proportionality for himself. A reviewing court examines whether the Tribunal’s refusal disclosed an error of law, but the Tribunal, when the appeal was at large, had itself to consider whether removal was proportionate rather than merely review the adjudicator.
3. The exceptional-case threshold is high. Legitimate immigration control will prevail in all but a small minority of cases, but the decision remains fact-sensitive. The Rules and policy command substantial respect without conclusively determining every Article 8 claim.
4. The adjudicator’s generalisation that many young men from Kosovo were in a similar position failed to analyse the claimant’s particular circumstances. He had no family in Kosovo or Macedonia, had been treated as a son by his aunt and uncle, and removal would effectively end his only family life. Although he did not qualify under the Rules or family policy, the case fell within their spirit and was capable of being exceptional.
5. The Strasbourg authorities provide guidance rather than factual precedents. The circumstances of returning a young person alone to a country recently affected by armed conflict, with no close relatives there, may require very weighty reasons. Illegal entry, followed by an immediate asylum claim and no subsequent offending, did not materially justify removal.
6. The Tribunal should therefore have granted permission to appeal. Its decision was quashed and the matter was returned for fresh consideration.

This was a first-instance judicial review. The adjudicator dismissed the claimant’s appeal on 8 May 2003. The Immigration Appeal Tribunal refused permission to appeal on 1 July 2003 and the refusal was notified on 25 July 2003. The High Court quashed that refusal and remitted the matter for fresh consideration.