HB (Ethiopia) & Ors v Secretary of State for the Home Department

An applicant resisting removal must first establish that removal would interfere with family or private life protected by article 8(1). Delay is relevant to proportionality under article 8(2), but applicants without a potential right under immigration law must show that it produced very substantial effects. The loss of a hypothetical earlier grant of leave does not itself determine, and may not affect, an article 8 claim.

A different approach may apply where delay has deprived an applicant of a procedural advantage connected with a potential immigration-law right. In an extreme case, it may be inequitable to enforce a burdensome procedural requirement. An applicant relying on a former policy must also establish that a reasonably timely decision would have preceded the policy change and produced a favourable result.

Four appellants appealed from decisions of the Asylum and Immigration Tribunal. The appeals were listed as test cases concerning the effect of delay by the Secretary of State upon reliance on article 8 of the European Convention on Human Rights to resist removal.

HB, EB and JL contended that timely decisions on earlier asylum claims would probably have secured exceptional leave to remain under policies then in force. They argued that the lost opportunity affected the proportionality of their later removal. FI instead relied on delay in deciding her application to remain as her husband's dependant.

The central issues were when administrative delay can affect the article 8 balance, how substantive article 8 claims differ from claims involving procedural rights under immigration policy, and whether any appellant had established the necessary factual and procedural foundations for relying on delay.

1. Disposition. The Court of Appeal unanimously dismissed all four appeals. Although the cases had been selected to clarify the effect of delay, each failed on a ground which made the central delay issue non-dispositive.
2. An applicant must first establish protected family or private life under article 8(1) and an interference with that life. Only then does justification under article 8(2) arise. Lawful immigration control will ordinarily make removal proportionate. Departure from that position is confined to a small minority of truly exceptional cases: Razgar [2004] 2 AC 368 and Huang [2006] QB 1.
3. Delay may enable family or private life to develop and is then a factual consideration under article 8(1). Where an applicant has no potential entitlement under immigration law, delay affecting a previous asylum claim can influence proportionality only if it has produced very substantial effects. The mere loss of a hypothetical earlier grant of exceptional leave does not itself determine, and may not even be relevant to, a later substantive article 8 claim: Strbac [2005] EWCA Civ 828.
4. Cases involving potential immigration-law rights require separate treatment. Where delay has caused the loss of a procedural advantage, it may be inequitable in an extreme case to enforce a burdensome procedural requirement, such as requiring an applicant to leave the country before applying. Shala [2003] EWCA Civ 233 and Akaeke [2005] EWCA Civ 947 concerned that procedural situation. They did not establish substantive article 8 rights arising from administrative delay alone.
5. HB failed because the specialist tribunal was entitled to find that even a decision made within a reasonable time would not have produced a favourable asylum outcome. EB failed because the upheld finding that the couple could continue their family life in Kosovo meant that removal would not interfere with article 8(1). JL likewise failed to establish the necessary protected family or private life which removal would interfere with.
6. FI had not raised delay before either tribunal. The Court of Appeal lacked jurisdiction to entertain the new point because it was not Robinson-obvious. In any event, the delay had caused no lost right and could only have increased the period in which family life developed. The appeals were therefore dismissed.

1. Court of Appeal (Civil Division): Unanimously dismissed all four appeals from the Asylum and Immigration Tribunal: [2006] EWCA Civ 1713.
2. Asylum and Immigration Tribunal: In each case, upheld or declined to disturb the material adjudicator's decision. It rejected the appellants' challenges concerning article 8, delay or the factual findings underlying removal.
3. Adjudicators: Dismissed the appellants' material appeals or claims. Their findings included the absence of relevant family-life interference, the possibility of continuing family life abroad, and the proportionality of removal.