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Krasniqi v Secretary of State for the Home Department [2006] EWCA Civ 391

This was an appeal against the AIT's decision to remove a failed asylum seeker on the grounds that the appellant's article 8 rights were being infringed. The appeal was allowed.

The appellant had claimed asylum after leaving Serbia. During her time in the UK she had met another asylum seeker from Kosovo who had a child, and they were now looking after the child as a family unit. The appeal turned on whether Article 8 rights to family life could be used to prevent removal and whether the circumstances were so exceptional as to bring the rights into play when they are not normally a factor in immigration proceedings.

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Case No: C5/2005/2345

Neutral Citation Number: [2006] EWCA Civ 391

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Monday, 10th April 2006

Before :

LORD JUSTICE CHADWICK

LORD JUSTICE SEDLEY

and

LADY JUSTICE ARDEN

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Between :

KRASNIQI Appellant

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SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

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(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

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Official Shorthand Writers to the Court)

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Mr R Husain (instructed by Messrs TRP) for the Appellant

Miss K Grange (instructed by the Treasury Solicitor) for the Respondent

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice Sedley :

1. The appellant is a citizen of the federal state of Serbia and Montenegro – all that remains of the Federal Republic of Yugoslavia – but is herself of Albanian ethnicity. Her home is the town of Medvedje in the Presevo Valley in Serbia. She is now 54 years old. She reached the United Kingdom in August 2000 and claimed asylum on arrival.

2. Among the facts found by the Adjudicator are the following. At the age of 15 the appellant was bigamously married off by her father to an older man who already had a family and children and who was repeatedly violent to her. She had a son and a daughter by him. Because he taught Albanian and was politically active in an Albanian party, the Serb authorities on more than one occasion arrested and harassed the entire family. Finally, in May 2000, in the course of a further Serb raid, the appellant and her daughter were gang-raped. Her husband then became violent towards them both. The appellant escaped and made her way here, but she has lost all contact with her son and daughter.

3. It was not until April 2004 that the Home Secretary gave a decision on the appellant's claim to protection. In the meantime she had formed a close relationship with another woman, Albana Lamaj, an asylum-seeker from Kosovo and, like the appellant, a victim of rape by Serb troops. In this country Ms Lamaj, who is now 24, had formed a relationship with an Albanian man which had broken down but as a result of which she bore a child in August 2004. The two women now live together and are bringing up the child. They form a stable and committed family.

4. While the characterisation of such a household for article 8 purposes remains problematical [1] , no issue arises on it in the present case. The Home Secretary accepts that on any view the right to respect for private life is engaged by the intended removal, and the approach of the parties and of the tribunals below has been to treat the appellant's private life as cognate with family life.

5. For reasons which it is not necessary to examine, on her appeal against the Home Secretary's refusal of her claims the appellant's asylum claim was rejected. So were her claims to protection by virtue of articles 2 and 3 of the ECHR. But the adjudicator, Mrs V.A.Osborne, in a determination promulgated on 1 February 2005, allowed her appeal under article 8.

6. Ms Lamaj's application for asylum failed on appeal in May 2001. Her subsequent application for protection on human rights grounds is still undetermined, although a separate application has been refused under the "one-off" admission policy.

7. The adjudicator was understandably critical of the Home Office's failure, despite a number of adjournments, to determine Ms Lamaj's application so that either her status would have been secured (and hence be a fixed point in Ms Krasniqi's appeal) or her appeal against a refusal could be heard jointly with Ms Krasniqi's appeal. Instead the adjudicator had to determine the latter appeal on its own.

8. The adjudicator, having carefully considered the evidence of both women and psychiatric evidence, concluded that, while it had a sexual component, "that is not the central force of their relationship…. I am satisfied that their relationship is an exclusive and enduring one." She found accordingly that "a family life does exist for these two women".

9. One difficulty which confronted both the appellant and the adjudicator was that an article 8 claim had not been made in terms to the Home Secretary, so that – as the adjudicator put it – "it was technically only raised for the first time at the hearing before me". But the adjudicator, having noted it, went on to consider the proportionality of removal. She did so on alternative assumptions: that either it was the appellant alone who would be removed, since no decision had yet been reached about Ms Lamaj's status, or the two women would be removed to different countries – Ms Lamaj to Kosovo and the appellant to Serbia. The adjudicator, applying what was then thought to be the law [2] , concluded that if the Home Secretary had been given the opportunity to consider the article 8 claim he could not reasonably have refused it. It is now established that the proper test was the adjudicator's own appraisal of proportionality [3] , but that would necessarily have been the same. Thus the error of law, if error it was [4] , was not material to the present issue.

10. In the Home Secretary's grounds of appeal to the IAT, no point was taken on the adjudicator's power to entertain the article 8 claim. The grounds, in substance, were that the adjudicator had erred in her appraisal of the proportionality of removal. They are poorly drafted but they appear to contain these contentions:

a) that the adjudicator had failed to explain or justify her conclusion;

b) that removal would not be disproportionate;

c) that the finding that removal would result in permanent separation was speculative;

d) that it was pure speculation that the appellant would harm herself if removed.

11. In giving permission to appeal, the single member, Mr S.L.Batiste V-P, wrote:

"The article 8 claim does not come within the terms of the Immigration Rules and the correct test therefore is whether it is 'truly exceptional' as described by the Court of Appeal in Huang [2005] EWCA Civ 105, which reflects the earlier guidance of the House of Lords in Razgar. The adjudicator appears to have erred in law in not identifying any truly exceptional factors and also appears wrongly to have prejudged the outcome of an application under the Immigration Rules from Serbia.

"The grounds of appeal raise issues which if sustained before the tribunal could amount to a material error of law by the adjudicator."

The question of prejudgment had not in fact featured in the Home Secretary's grounds. For the rest, the final paragraph of the grant of permission appears to open up every ground capable of being extracted from the Home Secretary's application. This is not, with respect, an ideal way of ensuring that only viable questions of law go to the AIT.

12. The AIT (Mr C.J.Hodgkinson, Mrs J Holt and Mr P Bompas), replacing the IAT under the transitional provisions, allowed the Home Secretary's appeal on the ground that the adjudicator had made material errors of law. First, they held, she had made a speculative finding that the two women could not live together either in Serbia or in Kosovo. Secondly, she had wrongly treated Ms Lamaj as unable to leave the United Kingdom until her appeal rights had been exhausted. Thirdly, she had found a risk of self-harm established upon evidence that was equivocal. Fourthly, she had overlooked the possibility of the appellant's obtaining entry clearance to rejoin Ms Lamaj and the child here. Lastly, she had failed to explain why the appellant's circumstances were truly exceptional: many married couples were after all as close as this couple were.

13. All of these are on the face of them matters of fact, not of law, and hence outwith the AIT's jurisdiction. They become matters of law only if they are (a) demonstrably erroneous or baseless, not simply debatable; and (b) potentially determinative.

14. Permission to appeal to this court was granted by Mr John Freeman on behalf of the AIT, "solely on the basis that the Tribunal may not have considered all the evidence before them on the question whether the appellant and her 'partner' could live together in either Kosovo or Preševo." He added comments supportive of the AIT's reasoning under two other heads. The appellant's notice records the grant of permission and in section 7 amplifies the single member's ground. But the skeleton argument submitted by her counsel, Raza Husain, seeks to take two more fundamental points: first, that the AIT had no jurisdiction to entertain the appeal, since the Home Secretary's grounds disclosed no question of law; secondly, that the AIT in any event failed to identify any error of law in the adjudicator's decision.

15. Counsel for the Home Secretary, Kate Grange, invites the court to refuse permission to take these points because they have no prospect of success. On the issue on which permission to appeal has been granted, the possibility of resuming the relationship in Kosovo or Serbia, she concedes that the AIT "may not have considered all the evidence" – they plainly failed to do so - and is prepared to concede an order for remission to the AIT on this ground alone. Mr Husain is not satisfied with this: he seeks the restoration of the adjudicator's decision.

16. In my view Mr Husain ought to be allowed to take the new points. No objection is taken to them on grounds of time; the Home Secretary has had adequate notice of them; and they are in my view serious points of principle thrown up by the AIT proceedings.

Did the grounds of appeal to the AIT raise a question of law?

17. By March 2005 appeal lay to the IAT, and thereafter to the AIT [5], solely on questions of law [6]. Care has consequently to be taken, when the grounds of appeal against the decision of an immigration judge take issue with his or her fact findings, to ensure that there is a sufficient foundation for an argument that the findings are both demonstrably – not merely arguably – unfounded or erroneous and capable of having affected the outcome. If this standard is reached, but only then, decisions about fact acquire a legal dimension. Short of it, the AIT has no power to entertain an appeal and permission to appeal to the AIT should not be granted.

18. In the present case the Home Office may perhaps count itself fortunate to have had some issues of law distilled out of, and in one respect added to, a shaky set of grounds in the way I have described. I do not consider that the Vice-President's distillation from them of an issue of law in relation to the identification of truly exceptional factors was beyond his remit. I am less certain that it was appropriate for him to add permission to canvass everything else in the notice of appeal, but I propose to approach this appeal on the footing that by so doing he gave leave to canvass the four issues I have summarised in paragraph 10 above.

19. To deny of the AIT power to extract a point of law from nebulously expressed grounds of appeal, or in exceptional cases to identify for itself an obvious issue of law which the appellant has missed [7], would be to shut out a potentially benign power of which the Home Office is, or ought to be, less in need than a good many applicants who lack expert legal advice. The important things are that the AIT should be rigorous in letting only issues of law go through to the second stage, but that it should be prepared to be helpful in identifying such issues where they arguably arise. [8]

20. For these reasons I am extremely doubtful about the further ground added by Mr Batiste in granting permission, concerning the possibility of the couple being reunited by the appellant's readmission to the United Kingdom. This, it seems to me, neither arose from the Home Secretary's grounds nor sprang from the page as an unnoticed issue of law. But I will assume that it too was properly before the AIT.

Were the AIT's reasons for allowing the appeal reasons of law?

21. These were the AIT's conclusions:-

25. We have carefully considered the submissions of both parties' representatives and we find that the adjudicator's assessment of Article 8 reveals material errors of law, which render unsustainable her conclusions in respect of that aspect of the appeal before her. Our reasons for so finding are as follows.

26. In paragraph 58 of her determination, the Adjudicator found that the appellant and Ms Lamaj could not live with each other in Serbia or Kosovo. There was no evidence before the Adjudicator upon which such a conclusion could reasonably have been based and we find that such conclusion was entirely speculative. In the absence of evidence to indicate that the appellant could not live with Ms Lamaj in Serbia or Kosovo, we find that the Adjudicator's conclusion in that regard is unsustainable and amounts to a material error of law.

27. We find that the Adjudicator erred, in paragraph 59 of her determination, in apparently concluding that Ms Lamaj could not leave the United Kingdom until all of her appeal rights had been exhausted. The Adjudicator has clearly placed great emphasis upon this issue. Whilst it is doubtless correct that Ms Lamaj cannot be removed, until such time as her appeal rights might be exhausted, the Adjudicator's conclusion, arising from this scenario, fails to take into account the possibility that Ms Lamaj might choose to leave the United Kingdom with the appellant. We find that the Adjudicator's failure to take this issue into account also amounts to a material error of law. Based upon the evidence which was available to the Adjudicator, we find that the Adjudicator erred in apparently concluding, although without specifically stating so, that there was an insurmountable obstacle to family life being continued elsewhere other than in the United Kingdom.

28. We find that the Adjudicator also erred in apparently concluding that there would be a real risk of serious self-harm by the appellant, in the event of her removal, and separation from Ms Lamaj. The evidence of Dr. Barrett was, we consider, equivocal. He found that the appellant was suffering from a moderate depressive episode, that she had "ideas or acts of self-harm or suicide", which were "not established" and that he would "not be at all surprised to see her commit an act of deliberate self-harm were this to occur (namely, their separation – our words)". Dr Barrett has not stated that the appellant would be a real risk of suicide or serious self-harm and we find that the medical evidence available to the Adjudicator, viewing Dr Barrett's conclusions as a whole, was insufficient for her to conclude that this aspect of the evidence, either viewed alone or cumulatively, might establish that the appellant's removal would be disproportionate, with reference to the requirement, as now embodied in the recent Court of appeal judgment in Huang [2005] EWCA Civ 105, for an appellant's circumstances to be truly exceptional.

29. Regarding the issue of entry clearance, it is not for this Panel, or for an Immigration Judge, to prejudge the likelihood of success of an application under a relevant Immigration Rule. Nevertheless, we find that the appellant might, at least potentially, be able to apply for entry clearance under paragraph 295 of HC395.

30. With reference to the issue of exceptionality, whilst the Adjudicator made a reference, as indicated, to the IAT's starred determination in DM (Croatia), which was the appropriate case to have referred to at that stage, she failed to record that that determination indicated that an individual's particular circumstances had to be truly exceptional in order for that individual's removal to be considered disproportionate. The current relevant case law is, of course, now the Court of Appeal's judgment in Huang. The Adjudicator has failed to identify why the appellant's circumstances are "truly exceptional". We note that the Adjudicator referred to the appellant as being extremely vulnerable, referred to the available medical evidence as a clearly relevant factor in assessing proportionality and also referred to the appellant's circumstances being highly unusual, but without indicating why they were highly unusual. The only reference by the Adjudicator to "exceptionality" is to her finding that the relationship between the appellant and Ms Lamaj was "exceptionally close". We consider that the relationship between many married couples might doubtless be described as exceptionally close but this does not mean that there are truly exceptional circumstances applicable, which render removal disproportionate. We find that the Adjudicator has not identified, or referred to, any factors which might reasonably have caused her to conclude that the appellant's circumstances were truly exceptional. By exceptional, we mean with reference to a host of other appellants' circumstances, each of which is deserving of significant sympathy.

22. Having reached this position, the AIT in their final paragraph held that "the adjudicator's determination reveals a number of errors, which amount to material errors of law and which render the adjudicator's determination unsustainable in terms of article 8". They proceeded to substitute a contrary finding:

"… for the reasons given [viz in the preceding paragraphs], we find that the appellant's removal would not interfere with her family life and that, even if we are wrong in this, her removal would not be disproportionate, when set against the importance of maintaining an effective immigration policy."

23. The conclusion that removal would not even interfere with Ms Krasniqi's family life is based on the misapprehension to which I come in §24 below. Nothing therefore turns on it in this appeal. For the rest, the question is whether the AIT had in truth found any error of law entitling them to substitute their own decision under article 8(2). In my respectful view, even on the assumptions I have been prepared to make about the grounds of appeal, they had not.

24. The possibility of living together in Serbia or Kosovo [§26].

It is now conceded that, contrary to the AIT's finding, there was evidence that neither woman would be able to live with the other either in Serbia or in Kosovo. Indeed Mr Husain points out that there was uncontroverted evidence in the report of Mr Standish, whose expertise and reliability the adjudicator accepted but whom the AIT fail to mention, that neither state would permit a national of the other to settle there.

25. The position of Ms Lamaj [§27].

Contrary to what the AIT record, the adjudicator neither concluded nor appeared to conclude that Ms Lamaj could not leave this country until all her appeal rights had been exhausted. The adjudicator (in her §59) had noted, in general correctly, that Ms Lamaj could not be removed until her appeal rights had been exhausted. But the AIT, while themselves noting this fact, went on to criticise the adjudicator for overlooking the fact that Ms Lamaj was still free to leave voluntarily, holding this oversight to be a material error of law.

26. In my respectful judgment it was no such thing. Once it is appreciated, as it should have been, that there was on the evidence nowhere in either woman's home state where they could live together, the possibility of Ms Lamaj leaving voluntarily had no factual or legal bearing on the prospects of family life. In saying this I am assuming, what I doubt, that this was an issue within the grounds of appeal in the first place.

27. The possibility of securing entry clearance [§29].

The adjudicator had found (§60) that any attempt to re-enter the United Kingdom from Serbia to rejoin Ms Lamaj "would be fraught with difficulty based on her reluctance to describe the nature of the relationship and its most unusual characteristics as described by Dr Barrett". This of course would arise only if the appellant were removed but Ms Lamaj and the child allowed to remain. The personal difficulty it would entail was something the adjudicator was entitled to evaluate as she did. It did not involve prejudgment any more than did the AIT's view – which was actually not in conflict with the adjudicator's – that "the appellant might, at least potentially, be able to apply for entry clearance". Even assuming (what again I doubt) that it lay within the grounds of appeal, no conceivable error of law arose under this head.

28. The risk of self-harm [§28].

It is apparent from the AIT's own citations that the adjudicator did have before her evidence capable of sustaining a finding (§62) that there was a real risk that separation would drive the appellant to self-harm. It was as part of the diagnosis that suicidal ideation was "not established", because the couple were still together. But the prognosis should they be separated (also cited by the AIT) was clear and, as the adjudicator found, alarming. Her conclusion, as can be seen, was actually more cautious than the AIT suggest:

62. I accept Dr Barrett's evidence which was not disputed at the hearing before me that she is suffering from a moderate depressive episode. He describes the treatment which would be appropriate and by reference to the CIPU (S5.50) I note that "treatment for mental health disorders is available, though number of psychiatric staff and bed spaces are limited". However of more concern to me is Dr Barrett's prognosis which states "the most critical thing affecting Ms Krasniqi's prognosis is what happens to her relationship with Ms Lamaj. If they are separate I would confidently predict disaster for both, so symbiotic is their relationship. This would dramatically worsen the outlook for the prospective child too. I would not be at all surprised to see either commit an act of deliberate self-harm were this to occur." This is an alarming prognosis. I am satisfied by the evidence before me that the Appellant and Ms Lamaj are highly dependent upon each other. This has to be seen in the context of the shame which both women feel about having been raped and how as such they are both condemned in the eyes of their own cultures. I accept this evidence – I believe the Appellant when she tells me that after having been raped her husband seriously assaulted her "for having Serbian blood in me". Ms Lamaj in her evidence told me that she would have been expected to kill herself as a result of the rape because of the shame which it would have brought on the family. I am therefore satisfied that if separated from each other neither woman would see any real hope for the future I find that this would be particularly so in the Appellant's case because she would also be separated from the child who she has come to regard as hers together with Ms Lamaj.

29. The AIT may have disagreed with what the adjudicator made of the evidence, but they were not in my respectful view justified in dismissing Dr Barrett's evidence as 'equivocal' or the adjudicator's deductions from it as unfounded.

30. Is the case truly exceptional? [§30].

This question, which was plainly before the AIT, is in principle one of fact. But it is a question of secondary fact dictated by law and therefore, I would accept, susceptible to closer scrutiny than findings of primary fact. In the field of human rights law it is an aspect of the legal concept of proportionality, itself an artefact of the ECtHR's jurisprudence on what is "necessary in a democratic society" within the meaning of articles 8(2) to 11(2). As explained by this court in Huang (ante), while the appraisal of proportionality is procedurally a matter for the immigration judge, substantively it must start from the position that the maintenance of lawful immigration control is ordinarily sufficient to make removal proportionate. From this it follows that there must be something truly exceptional to make an otherwise lawful removal disproportionate: it is now axiomatic that article 8 will be engaged only in a small minority of exceptional cases, disclosing "the most compelling humanitarian considerations" [9].

31. Mr Husain takes issue with the AIT's definition of 'exceptional' as meaning "with reference to a host of other appellants' circumstances, each of which is deserving of significant sympathy". While I accept that it may lack lexicographic finesse, for my part I see nothing wrong with it. The question is not whether the case against removal is outside the general run of human experience: it is whether it stands out from the general run of cases for non-removal on family or private life grounds, almost all of which tend to evoke sympathy.

32. The adjudicator concluded that this case did stand out from the run of such cases. Her conclusion – "The circumstances of this case are highly unusual" – was not freestanding but was her summary of all that had preceded it in her determination. Indeed she considered the case so compelling that no Home Secretary could have considered it proportionate "to remove the appellant to Serbia thereby separating her permanently from the only people who she now regards as her other family members". The AIT plainly disagreed, but that is not enough. In my judgment it was necessary for the AIT, if they were to overset an evidence-based decision that the case was so exceptional as to make removal disproportionate, to be able to hold that the evidence could not – not merely in their own judgment did not – sustain the conclusion. Anything less would not disclose an error of law.

33. The AIT did not hold that the case could not tenably be regarded as wholly exceptional. In §30 they criticised the adjudicator for failing "to identify why the appellant's circumstances are 'truly exceptional'". I do not think that this is a fair criticism. The foundation of her evaluation is the entirety of the facts properly found by her. She was entitled to conclude that these facts - both women's shocking and destructive experience of public rape by Serb soldiers, the social stigma attaching to it, the probable loss by the appellant of her own two children and her rejection by her husband, the consequent fragility of the mental and emotional state of both women but particularly the appellant, the crucial nature of the love and support they were able to afford each other in this devastating situation and the shared experience of bringing up 'their' child, together with the extreme unlikelihood that an enforced separation could ever be undone - placed the case so clearly beyond the run of family separation cases as to outweigh even the imperatives of immigration control. There is no deficiency of reasoning or of explanation in her decision that this was such a case.

Conclusion

34. In this situation the AIT had no power to interfere with the adjudicator's determination. I consider that this appeal should be allowed and the adjudicator's decision restored.

Lady Justice Arden:

35. I agree with both judgments. On exceptionality, the starting point is as I see it the imperatives of immigration control to which Lord Justice Sedley refers. Neither Ms Krsasniqi nor Ms Lamaj is entitled to remain here. In my judgment, where two illegal immigrants have a family life together and one of them contends that he or she cannot be removed from this country because of article 8, the position under the Convention is as follows:

a. The essential object of article 8 is to protect individuals against arbitrary conduct. A person has a Convention right that the government should respect his or her private or family life.

b. In immigration matters the state has a right to control the entry of non-nationals into its territory. Thus:

i. The exclusion of a person from the United Kingdom does not generally raise issues under article 8;

ii. There is no obligation on the state to accept the choice made by a person ("A"), who has not been admitted to live in the United Kingdom, of the place where he or she would like to have a private or family life with another person ("B") who has similarly not been admitted to live in the United Kingdom ( see Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHHR 471, cited in Huang v Home Secretary [2006] QB 1, para. 48).

c. It is only in a truly exceptional case that an unlawful immigrant can successfully oppose his removal by reliance on article 8 (see R(Razgar) v Home Secretary [2004] 2 AC 368, para. 20 per Lord Bingham, and Huang, para. 60.)

d. If A claims a right to remain in the United Kingdom in reliance on article 8 and his right to respect for his or her family life with B, it is a relevant consideration that they formed their relationship at a time when their status was precarious: see Abdulaziz, Cabales and Balkandali v United Kingdom, para. 68. If A cannot be removed because of article 8, he or she would be in a better position than a person who applies to be admitted to live in the United Kingdom from abroad through the normal channels.

e. To establish a valid claim that his or her rights under article 8 would be violated by removal, A has to show that they are prevented from establishing a family life in his or her own country or that of B or that there is some special reason he or she could not be expected to live with B in his or her own country or that of B: see generally Abdulaziz, Cabales and Balkandali v United Kingdom.

36. In the present case the adjudicator found that there were special reasons in this case. Ms Krasniqi and Ms Lamaj could not, if returned to their respective countries, live with one another. There were difficulties if Ms Krasniqi were to apply from Serbia for permission to re-enter the United Kingdom. In addition, Ms Krasniqi would suffer serious psychological disturbance if separated from Ms Lamaj. So there was the added element that Ms Krasniqi is to some degree dependent on Ms Lamaj. I agree with what Sedley LJ has said about the overruling by the AIT of the adjudicator's findings. The findings of the adjudicator must stand.

37. The facts of this case may give rise to a concern that there is a vicious circle, ie that Ms Krasniqi cannot be removed unless Ms Lamaj is removed and vice-versa. In my judgment that is not a correct assessment. The effect of this court's decision will be to hold the ring while Ms Lamaj's claim is determined. It may be that the relationship between her and Ms Krasniqi will not be a lasting one. It may be that Ms Lamaj will be able to establish that she is entitled to leave to remain. It may also be that the evidence produced at the hearing of Ms Lamaj's article 8 claim will show that circumstances have changed and that Ms Krasniqi and Ms Lamaj could reasonably be expected to live with one another in either Serbia or Kosovo.

38. The determination of this appeal does not, therefore, pre-empt the decision-making process in Ms Lamaj's case, though if the court had come to the opposite conclusion it would have precluded a claim by Ms Lamaj under article 8 based on her relationship with Ms Krasniqi.

39. If, however, the stage is reached at which Ms Lamaj's rights under article 8 have to be determined, there will inevitably be some duplication of the issues already determined as against Ms Krasniqi. This could have been avoided if the cases had been heard together or consecutively. Like the adjudicator I find it difficult to see why the cases have not been dealt with at one time in the interests of economy. The same point will no doubt occur to anyone reading this judgment. The fact is that this court has had no explanation as to why the cases were not dealt with together. But the key is the effect of this decision is that Ms Lamaj's position will not have been prejudiced as a result of the determination of Ms Krasniqi's position.

Lord Justice Chadwick:

40. I agree that we should make the order which Lord Justice Sedley has proposed; and that we should do so for the reasons which he has set out in his judgment.

41. I wish only to add that I endorse his observations as to the need for rigour in identifying, with an appropriate degree of precision, which amongst the issues an applicant may seek to raise on an appeal are truly issues of law fit for consideration by an appellate tribunal. I share his concern that the terms in which permission to appeal to the IAT was given in the present case failed to recognise that need.

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[1]. See most recently Secretary of State for Work and Pensions v M [2006] UKHL 11.
[2]. M* (Croatia) [2004] IAR 211.
[3]. Huang [2005] EWCA Civ 105; [2006] QB 1.
[4]. Huang is at present on appeal to the House of Lords: [2005] 1 WLR 3366.
[5]. By virtue of s.103A(1) inserted into the 2002 Act by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, s26, and regulations made thereunder, the grant of permission to appeal to the IAT took effect as an order for reconsideration by the AIT.
[6]. Nationality, Immigration and Asylum Act 2002, s.101(1). Rule 31(2)(b) of the 2005 Procedure Rules provides accordingly: "If it decides that [the adjudicator] did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand."
[7]. See R v Home Secretary, ex p Robinson [1998] QB 929, 946.
[8]. See B v Home Secretary [2005] EWCA Civ 61, §18; Miftari v Home Secretary [2005] EWCA Civ 481, §22.
[9]. Razgar v Home Secretary [2004] 2 AC 368, per Lord Bingham and Lady Hale.