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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AZ (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 158 (28 January 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/158.html Cite as: [2009] EWCA Civ 158 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/06597/2007]
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SCOTT BAKER
and
LADY JUSTICE SMITH
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AZ (Bangladesh) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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Ms L Busch (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
____________________
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Lord Justice Scott Baker:
"He entered the United Kingdom in June 1995 at the age of 15 [we now know that that was fourteen and a half]. He is unable to provide any documentary evidence confirming how he arrived and also when he arrived in the United Kingdom. He claims that he did not come to the United Kingdom on his own free will and that it was with members of his family who decided to send him to the United Kingdom for a better life. He claims that when he first arrived he was not fully aware of the circumstances which he was now in and he was advised by the family members around him to stay away from the authorities, in particular the family who brought him to the United Kingdom. He never attended the British High Commission in Bangladesh for any visa. He noted that there were many Indian Bangladeshi restaurants in the United Kingdom run by Bengali-speaking people. He did not have any language difficulties and was able to secure accommodation in one of these restaurants in return for his labour and pocket money. In 1995 through a friend he made an application for a Bangladeshi passport and this was issued to him on 6 November 1995. Using this passport and his address he was able to open a bank account at the beginning of 1996. He then also began attending college from 2001 and he continued to work at the Indian restaurant whenever he was able to find employment. The appellant claims that he has been resident in the United Kingdom from 1995. The [respondent] disagrees with this and [the appellant] contends that the fact that he has produced his original passport and bank book is sufficient evidence of him being in the United Kingdom since 1995. He has never been out of the United Kingdom and he has never made any claims on public funds or committed any act against the state
8. He purchased property in Birmingham in 2001 from his savings and he was able to put down a deposit of £3,000. When he left his country his parents were already aged and they have subsequently died. He had a younger brother who is now living in Dubai. He does have occasional contact with him. The basis of his appeal is therefore that he has lived in the United Kingdom since the age of [14 and a half], and that he has established ties in the United Kingdom. He has many friends in this country with whom he enjoys regular contact…"
"In a case where removal is resisted in reliance on article8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
In practice, both the fourth and fifth questions, said Lord Bingham in EB Kosovo, are usually and unobjectionably taken together.
"24. In this case the answer to the first of the questions posed by Razgar is certainly yes.
25. The answer to the second of the questions posed by Razgar is likely to be no. The consequences of removal for this Appellant are that he is a healthy 24-year old, with the benefit of a British education and substantial assets in the form of property. He will be returning to a country where he lived until the age of 15, where the Immigration Judge found he is likely to have extended family and where he will have no difficulty setting himself up. He remains fluent in the language. It is difficult to see that his removal will have consequences of such gravity as to engage the operation of Article 8. However, it has been established that the threshold for engaging Article 8 is low and I shall therefore give the Appellant the benefit of the doubt and find Article 8 is engaged and go on to consider the remaining questions."
And then she did.
"I found that the error of law made by the Immigration Judge is not material because it is inconceivable that any Immigration Judge would have allowed the appeal on Article 8 grounds on the facts for the following reasons."
That paragraph begs the question of on what facts, and in particular whether the facts included or did not include the erroneous findings of fact in the two respects made by the first immigration judge. But at paragraph 24, having decided that the answer to the third Razgar question was clearly yes, that the appellant's removal would be lawful, she went on to say this:
"That leaves the fourth question and an assessment of proportionality; whether it is proportionate in the interests of maintaining immigration control to interfere with the Appellant's private life that he has established in the UK. This is a balancing exercise. On one side is public policy to remove persons with no right to be in the UK and who cannot meet any of the Immigration Rules. That carries considerable weight. Also on that side of the balance is the fact that this Appellant did nothing to regularise his position for nine years and thereafter acquiesced in the Home Office delay in reaching its decision. On the other side of the balance is the fact that the Appellant has become accustomed to and would have settled into life in the UK. He has no doubt made friends. He has committed no crimes, claimed no public funds (other than the cost of education and healthcare), he has worked and purchased a property. I have no difficulty in finding on this basis that it is proportionate to remove this Appellant. For the reasons I have indicated in paragraph 18 and 19 above there is absolutely no reason why this Appellant cannot be expected to return to Bangladesh. Indeed, he will be returning as an educated man of substance and in a far better position than many of his compatriots."
"It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it."
Well the delay plainly was relevant in that way in the present case. Lord Bingham went on at paragraph 15:
"Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant's precarious position."
This is not a case where there is any other party. The applicant has throughout been on his own. And then at paragraph 16:
"Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant's application on grounds of non-compliance."
The only culpable delay in the case of the respondent in this case, if indeed it can be categorised as culpable delay, is in relation to the three-and-a-half-year period that it took the Secretary of State to determine the application. That period is small, and indeed very small compared to the earlier period that had already passed since the appellant arrived in this country. In my judgment this is not a case where anything has happened that has caused the appellant to lose a right during a period of delay by the Secretary of State or whereby his position has been in any way prejudiced by some intervening event.
Lord Justice Ward:
Lady Justice Smith:
Order: Appeal dismissed