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Shala v Secretary of State for the Home Department

DATE: 27 Feb 2003

S, a Kosovar Albanian, appealed against the refusal of his asylum claim, the Immigration Appeal Tribunal having concluded that interference with S’s family life was proportionate and justified under the Human Rights Act 1998 Sch.1 Part I Art.8(2) . On arrival in the United Kingdom S had immediately claimed asylum and pending the determination of his application he had been granted “temporary admission” to the UK. Over four years later in July 2001 his application was refused by the Home Office on the basis that the threat of persecution in Kosovo had been removed with the establishment of a peacekeeping force. In the period between his arrival and the refusal of his asylum claim, S had formed a relationship with a Czech national, B, and became stepfather to her two sons. B and her sons were granted refugee status in May 2000 and B and S married in October 2001. At first instance the adjudicator accepted that S had formed a genuine family life with B and that he was a devoted stepfather. He also determined that it was impossible to expect B and her children to move to Kosovo. Whilst accepting that there would be an interference with his family life if S were removed to Kosovo, the adjudicator concluded that once there S would be able to apply for entry to the UK on the basis of his marriage. A subsequent appeal to the Immigration Appeal Tribunal was unsuccessful. S contended that in the light of the adjudicator’s conclusions with respect to his family life it was clear that only in the UK could his family life be maintained and there was no guarantee that any separation caused by his removal to Kosovo would be of short duration. Further, that the appellate tribunal should not have treated S as though he was merely in the position of a spouse seeking leave to enter since had his application been treated with reasonable speed he would have been granted refugee status or exceptional leave to remain up until mid 1999 on the basis of the Secretary of State’s then policy with regard to Kosovo.

Held, allowing the appeal, that in determining whether the relevant discretion had been exercised appropriately the court recognised that the ambit of the Secretary of State’s judgment was generous, International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 applied. It was clear that but for the significant delay by the Home Office in dealing with S’s claim he would not have fallen into the category whereby policy required an application for leave to enter to be made from outside the UK. Instead he would have been granted refugee status or could have sought a variation of any grant of exceptional leave to remain. The delay on the part of the Home Office constituted an exceptional circumstance capable of taking the case outside the normal run of cases where an individual with no leave to enter sought to gain such leave on the basis of marriage. Accordingly to require S to leave the UK and make an application from Kosovo for leave to enter was clearly disproportionate, Xhacka, Re [2002] UKIAT 3352 and Abdulaziz v United Kingdom (A/94) (1985) 7 E.H.R.R. 471 ECHR considered.