E B (Kosovo) v Secretary of State for the Home Department

The House of Lords considered the effect of delay by immigration decision-makers on an appellant's Convention right under Article 8 (respect for private and family life). The court reaffirmed the established multi-stage approach to Article 8 challenges (as described in R (Razgar) v Secretary of State for the Home Department) and held that delay is not irrelevant: it may strengthen an applicant's Article 8 claim by allowing deeper family or private life ties to develop, may affect the quality of relationships entered into while immigration status is precarious, and may, where the delay results from a dysfunctional system, reduce the weight given to the public interest in firm and fair immigration control.

The House allowed the appeal because the adjudicator and the Asylum and Immigration Tribunal had not adequately addressed the human and proportionality problems raised by the long and mishandled delay in the appellant's case and remitted the matter to the AIT for fresh determination.

Background and facts:

• The appellant, a Kosovar, arrived in the United Kingdom on 2 September 1999 aged 13 and claimed asylum four days later. His application was badly mishandled by the Immigration and Nationality Directorate, including an erroneous refusal on non-compliance in October 2000 which was withdrawn only in September 2002; substantive consideration did not occur until April 2004. Because of delay he turned 18 in December 2003 and lost the protection available to unaccompanied minors under the policies then in force. He formed a relationship in 2003 with Latifa Quresh, who had exceptional leave to remain and later indefinite leave; the couple had a child and intended to remain together and marry.

Procedural posture:

• The adjudicator dismissed the appellant's asylum and Article 8 claims (13 September 2004). The Asylum and Immigration Tribunal dismissed the Article 8 appeal (27 January 2006). The Court of Appeal heard the case as one of several delay test cases but, applying binding authority as it then understood it, dismissed the appeal ([2006] EWCA Civ 1713). The case proceeded to the House of Lords.

Nature of claim and issues framed:

• The appellant sought to resist removal to Kosovo relying on Article 8 ECHR. The central legal issue was what bearing, if any, the delay of the decision-making authorities has on an applicant's Article 8 rights and on the proportionality assessment when removal is sought.

Court's reasoning:

• The House reiterated the step-by-step questions to be asked in Article 8 cases and emphasised that appellate immigration authorities must make their own judgment on proportionality (drawing on Razgar and Huang). The court identified three ways delay may be relevant: (1) the passage of time can create or strengthen private or family life ties thereby strengthening the Article 8 claim; (2) relationships entered into while an applicant's status is precarious may initially be tentative but become more settled if unreasonable delay leads parties to assume removal is unlikely; (3) where delay results from systemic dysfunction producing unpredictable and inconsistent outcomes, the weight ordinarily accorded to firm and fair immigration control may be reduced in the proportionality balancing exercise.
• Applying these principles, the House found that the adjudicator and AIT had inadequately addressed the effect of the prolonged and inexcusable handling of the appellant's claim and had not carried out the necessary balancing exercise. For those reasons the appeal was allowed and the matter remitted to the AIT for fresh consideration.

Appeal allowed. The House held that delay by immigration decision-makers can be relevant to an Article 8 proportionality assessment in three ways: it may strengthen family or private life ties; it may affect the quality and permanence of relationships entered into while status is precarious; and, where delay results from a dysfunctional system producing inconsistent outcomes, it may reduce the weight given to the public interest in firm and fair immigration control. The adjudicator and AIT had failed adequately to address these issues in this case, so the matter was remitted for fresh determination by the AIT.

Adjudicator decision dismissed asylum and Article 8 claims (13 September 2004). Appeal to the Asylum and Immigration Tribunal dismissed (27 January 2006). The Court of Appeal heard the case as one of several delay test cases and dismissed the appeal ([2006] EWCA Civ 1713). The House of Lords allowed the appeal ([2008] UKHL 41) and remitted the matter to the AIT.