VP (Croatia) v Secretary of State for the Home Department

Administrative delay does not, by itself, usually make removal disproportionate under article 8. Delay may increase the period in which family or private life develops, but that is a question of fact. Immigration policy will ordinarily satisfy the justification requirement, and cases in which it is not conclusive are truly exceptional. Where an applicant has a potential route under the immigration rules, delay may matter especially if it has caused serious procedural unfairness or prevented reliance on that route. Relevant delay normally runs from the formulation of the article 8 claim, and the applicant must show that it was not acquiesced in by taking reasonable steps to pursue the application. On the facts, there was no real prospect that the relationship or delay would outweigh immigration control.

The applicant, a Croatian national, applied for asylum after arriving in the United Kingdom. That application was refused in 1999. A later human-rights application was made under article 3, and an article 8 claim based on his relationship with a woman settled in the United Kingdom was first formulated in November 2002. The Secretary of State refused the claim in July 2003.

An adjudicator dismissed the applicant’s appeal in October 2004. The Asylum and Immigration Tribunal dismissed his further appeal in a decision promulgated on 22 February 2006. The applicant sought permission to appeal, arguing that the tribunal had applied the wrong approach to administrative delay and had failed to take account of his potential fiancé route under the immigration rules. The central issue was whether the delay, considered with the relationship and the possible out-of-country application, gave the article 8 claim a real prospect of success.

1. Application refused. The Court of Appeal, on an application for permission to appeal, held that there was no real prospect of success.
2. Administrative delay may increase the time spent in the United Kingdom and therefore may affect whether family or private life exists for article 8(1). That is a question of fact. The application of immigration policy will usually satisfy article 8(2), and cases in which immigration policy is not conclusive are truly exceptional. This approach was reflected in HB & Others, although the relevant guidance there was obiter.
3. Where an applicant has a potential right under immigration policy, delay may have particular significance if burdensome procedural rules have been imposed in circumstances of extreme unfairness, national disgrace or systemic breakdown. The court regarded the strong statement in HB & Others as justified by the authorities, including Shala and Akeke. Delay alone was not treated as sufficient.
4. The material period was principally the period after the fresh article 8 claim was formulated. The earlier period concerned a materially different article 3 claim, before the relationship relied on under article 8 had arisen. Its relevance was therefore very limited.
5. The applicant also had to show that the delay had not been acquiesced in. Under MM, reasonable evidence of sustained pressure on the Home Office was likely to be required. The letters relied on did not amount to the necessary follow-up, and the tribunal had been unimpressed by the pursuit of the claim.
6. Even if the earlier delay were considered, the case lacked the exceptional features required for an article 8 claim to override immigration control. The relationship could be pursued by an application for entry clearance from outside the United Kingdom, and the parties’ possible life in Croatia remained relevant. Order: application refused.

• Court of Appeal (Civil Division) — permission to appeal refused: no real prospect of success.
• Asylum and Immigration Tribunal — appeal dismissed; decision promulgated 22 February 2006.
• Adjudicator — appeal dismissed on 13 October 2004.