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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HR (Proportionality) Serbia and Montenegro [2004] UKIAT 00088 (28 April 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00088.html Cite as: [2004] UKIAT 88, [2004] UKIAT 00088 |
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APPEAL No. HR (Proportionality) Serbia and Montenegro [2004] UKIAT 00088
Date of hearing: 24th June 2003
Date Determination notified: 28 April 2004
Secretary of State for the Home Department | APPELLANT |
and | |
HR | RESPONDENT |
"25. I find that if the Appellant [that is to say, the male Claimant] were returned to Kosovo there would be an interference with the right of himself, his wife and his only son to family life. I find that the UK Government's action in seeking to remove the Appellant is in accordance with the law and has the legitimate aim of the maintenance of immigration controls, which is an accepted element required for the prevention of disorder or crime. I have also considered whether removal by the UK Government is proportionate in a democratic society to the legitimate aim to be achieved. I have also taken into account all relevant factors including:
(a) the age of the Appellant and of his wife.
(b) the fact that Mr Gezim Rusi is their only son, that he has an established life in the United Kingdom, that he has employment, that at the time of the Respondent's decision he was in the process of buying a house (which he now owns (subject to mortgage) where he and his parents live and that he is able to support them without recourse to public funds).
(c) that the separation of four and a half years referred to in the letter of refusal was the result of Mr Gezim Rusi having good reasons for not returning to Kosovo rather than that he did not have close ties with his parents.
(d) that Mr Gezim Rusi did send money to his parents while they were in Kosovo and that he supports them now.
26. I have weighed these against the right and the need of the UK Government to control the entry of non-nationals onto its territory and I find on the facts as established and balancing all material factors that return is not proportionate to the legitimate aim to be achieved. Therefore the Appellant has established that by returning him, the UK Government would be in breach of its obligations under Article 8 of the 1950 Convention."
And, for that reason, he allowed the Claimant's appeal.
"9. In an appeal under section 65, therefore, there is no obligation to take into account claims made about the human rights of individuals other than the appellant or individuals who have not themselves been the subject of a decision which is under appeal. Such matters (save in so far as they relate to the human rights of the appellant himself) are irrelevant to the matter under consideration."
We have emphasised the words in brackets because our experience is that they are often ignored. There is no suggestion that the situation or the human rights of the Appellant should be taken in isolation. The Appellant's own position is the focus of the Adjudicator's determination, but in assessing the Appellant's own position, the Adjudicator will need to consider all the material before him. An Adjudicator could not have allowed an appeal such as the present simply on the basis that a non-Appellant's human rights would be affected by the decision. But the fact that a family member's human rights are affected may well be relevant to the determination of the Appellant's own human rights.
"The question for us is whether or not the Respondent's decision is lawful under s 6(1): that is to say, whether it is proportionate. It is not open to us to substitute our own decision if the decision was within the allowable area of discretion allowed to the Respondent."
"For my part, I find Moses J's analysis in Ala entirely convincing, and in the result conclude that in cases like the present where the essential facts are not in doubt or dispute, the Adjudicator's task on a human rights appeal under s 65 is to determine whether the decision under appeal, ex hypothesei a decision unfavourable to the Appellant, was properly one within the decision-maker's discretion ie was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in claim. If it was, then the Adjudicator cannot characterise it as a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently ie in the Appellant's favour, he cannot substitute his preference for the decision in fact taken."
We respectfully agree, and did not mean to say anything different in Noruwa.
C M G OCKELTON
DEPUTY PRESIDENT