EB Kosovo (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

An immigration authority determining whether removal is compatible with article 8 of the European Convention on Human Rights must make its own broad, fact-sensitive proportionality assessment. It must not impose an additional requirement that the case be exceptional.

Administrative delay does not require the claim to be decided hypothetically by reference to earlier facts or policies. Delay may nevertheless strengthen private or family life, diminish the precarious quality of relationships formed while immigration status is unresolved and, where caused by a dysfunctional system producing inconsistent or unfair outcomes, reduce the weight accorded to firm immigration control. The decision-maker must assess those matters in the round, including the practical consequences of separation or relocation.

The appellant arrived from Kosovo aged 13 as an unaccompanied minor and promptly claimed asylum. The Secretary of State mishandled the application and did not decide it substantively for more than four and a half years. By then the appellant had become an adult and had formed substantial personal and family ties in the United Kingdom.

An adjudicator rejected his asylum and human-rights appeals. The Asylum and Immigration Tribunal upheld that decision. The Court of Appeal dismissed his further appeal in EB (Kosovo) v Secretary of State for the Home Department [2006] EWCA Civ 1713, [2007] Imm AR 396.

The central issue before the House was how delay by the immigration authorities bears upon the proportionality of removal under article 8 of the European Convention on Human Rights.

1. Disposition. The House unanimously allowed the appeal. Lord Bingham delivered the leading speech. Lord Hope and Baroness Hale expressly agreed with it, and Lord Brown agreed with the proposed disposal. By a majority of four to one, the case was remitted to the Asylum and Immigration Tribunal for a fresh hearing.

2. Article 8 assessment. Per Lord Bingham, the appellate immigration authority must decide the Convention issue for itself. It must make a careful and informed assessment of the particular facts and must not require an exceptional or truly exceptional case. The structured questions stated in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 remain applicable, with necessity and proportionality commonly considered together.

3. No retrospective decision. Per Lord Bingham, delay does not entitle an applicant to have the claim determined as if a decision had been made earlier. There is no fixed period within which an immigration decision must be made. The decision-maker must apply the facts and policy existing when the decision is actually taken.

4. Three effects of delay. Per Lord Bingham, delay may be relevant because:

   • the applicant may acquire stronger personal and social ties and deeper roots in the community;
   • the initial impermanence of relationships formed during precarious immigration status may fade as prolonged official inaction creates an expectation of permanence; and
   • blameworthy delay caused by a dysfunctional system producing unpredictable, inconsistent or unfair outcomes may reduce the weight otherwise given to firm and fair immigration control.
   Lord Hope and Baroness Hale specifically endorsed the third principle. Baroness Hale emphasised that immigration control normally carries great weight, but that its weight may be diminished where the system has failed markedly. All relevant matters must still be weighed together.

5. Errors below. Per Lord Bingham, neither the adjudicator nor the Tribunal adequately assessed the appellant’s family circumstances. The adjudicator appeared at points to require harm approaching articles 2 or 3, failed properly to examine the consequences of separating the family, and did not assess whether relocation to Kosovo could reasonably be expected. The Court of Appeal also proceeded upon an exceptionality requirement subsequently rejected by the House. The required judgment in the round had therefore never been made.

6. Separate opinions. Lord Scott would have held immediately that no reasonable and proportionate decision-maker could remove the appellant, because the mishandling had deprived him of the policy applied to an otherwise comparable cousin. He therefore would not have remitted the case. Lord Brown agreed that elapsed time could strengthen relationships and weaken reliance on precarious status, but rejected the majority’s conclusion that the blameworthy or dysfunctional cause of delay could itself reduce the public-interest weight of immigration control.

1. House of Lords: In [2008] UKHL 41, the appeal was allowed unanimously. By a majority of four to one, the matter was remitted to the Asylum and Immigration Tribunal for a fresh hearing.
2. Court of Appeal: In [2006] EWCA Civ 1713, [2007] Imm AR 396, the appeal was dismissed. The court proceeded on the then-binding premise that an article 8 claim required an exceptional or truly exceptional case.
3. Asylum and Immigration Tribunal: On 27 January 2006, the Tribunal found no error of law in the adjudicator’s decision and upheld it.
4. Adjudicator: On 13 September 2004, the appellant’s asylum and human-rights appeals were dismissed.