SH (Serbia) v Secretary of State for the Home Department

The proportionality of requiring an immigration applicant to return abroad and seek entry clearance must be assessed in the circumstances of the individual case. A long and unjustified delay by the Secretary of State may contribute to a breakdown of the system and may make the procedural burden disproportionate, but it does not produce that result automatically. The tribunal must examine the practical difficulties of obtaining documents and making the application, together with the effect of return on relevant personal relationships. An immigration judge need not repeat every piece of evidence in each part of the decision if the decision read as a whole shows that the evidence was considered. Different conclusions in other delayed cases do not, without more, demonstrate an error of law.

The appellant, a Roma from Kosovo and citizen of Serbia and Montenegro, applied for asylum in March 2000. The Secretary of State later required him to return to Kosovo and apply for entry clearance. An Immigration Judge recorded unexplained delay after April 2001, but concluded that return would not present grave difficulty and that the delay had not made the requirement disproportionate. The appellant sought permission to appeal, relying on the delay, his relationship with his fiancée, and the judge’s treatment of evidence about difficulties faced by Roma applicants. The Court of Appeal considered whether the decision disclosed an error of law and refused permission.

Application refused. Moses LJ held that the Immigration Judge’s decision disclosed no arguable error of law.

1. The applicable principles were those summarised in HB (Ethiopia) v SSHD [2006] EWCA Civ 1713. Where the Secretary of State’s prolonged and unjustified failure to determine an application has contributed to a breakdown of the system, the tribunal must assess whether the burdens and procedural rules of requiring return and an out-of-country entry-clearance application are proportionate.
2. The Immigration Judge’s comment that the delay had not been material was ambiguous. Read as a whole, particularly the reasoning at paragraphs 32 to 39, the judge had considered whether return was proportionate in light of the relationship formed with the appellant’s fiancée. The ground therefore had no reasonable prospect of success.
3. The judge had recorded the evidence concerning prejudice and violence towards Roma, and referred to the appellant’s Roma status in the following paragraph. He had also considered evidence from an entry-clearance officer that applications were made by persons within Kosovo, including Roma applicants. The judge was entitled to find that the appellant would not face such grave difficulty in obtaining the necessary documents as to make return disproportionate.
4. Substantial unjustified delay does not automatically determine proportionality. Different outcomes in other cases involving delay do not establish an error of law. In Akaeke, the court had merely upheld an AIT decision describing the delay as a national disgrace; that case provided no rule requiring the same conclusion in every delayed case.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division) — Moses LJ refused the application for permission to appeal on 20 February 2007: [2007] EWCA Civ 314.
• Asylum and Immigration Tribunal — In AIT No. HX/19285/2004, an Immigration Judge considered the prolonged delay, the proposed travel to obtain entry-clearance documents, and the appellant’s relationship, but found no grave difficulty making return disproportionate.