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

Asylum-seeker’s appeal against AIT’s judgment allowed, thereby restoring the adjudicator’s decision.

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

Court of Appeal: Chadwick, Sedley and Arden LJJ (10 April 2006)

Asylum-seeker's appeal against AIT's judgment allowed, thereby restoring the adjudicator's decision.

The appellant, of Albanian ethnicity, was a citizen of Serbia and Montenegro. She fled to the UK in August 2000 and claimed asylum on arrival, having been raped by Serbian soldiers and forced to leave her son and daughter behind. In April 2004, the Home Secretary refused her claim for asylum. In the meantime, the appellant had formed a close relationship with another woman, herself an asylum-seeker from Kosovo, who had given birth to a child in August 2004 by a previous relationship, and the two women were now living together and bringing up the child within a stable and committed family.

In February 2005, the adjudicator allowed the appeal against the Home Secretary's refusal, under Article 8 of the European Convention on Human Rights; even though the Article 8 claim had not been made in terms to the Home Secretary, the adjudicator concluded that if the Home Secretary had been given the opportunity to consider the Article 8 claim he could not reasonably have refused it.

The Home Secretary appealed to the Asylum and Immigration Tribunal (AIT – replacing the IAT under transitional provisions), contending that the adjudicator had erred in her appraisal of the proportionality of removal; and the appeal was allowed on the ground that the adjudicator had made material errors of law. Permission to appeal against the AIT decision was granted '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 [Serbia] or [Kosovo]'.

The court took account of the procedural position that an appeal lay to the Tribunal solely on questions of law, and addressed the following issues: (1) Did the grounds of appeal to the AIT raise a question of law? (2) Were the AIT's reasons for allowing the appeal reasons of law? and (3) Was the case truly exceptional?

Held, allowing the appeal, that the AIT had not found any error of law entitling it to substitute its own decision under Article 8(2). Accordingly, the adjudicator's determination should be restored.

On the issue of exceptionality, the court referred to the decision in Huang [2005] EWCA Civ 105 which established that Article 8 will be engaged only in a small minority of truly exceptional cases; further, it considered that the question was not whether the case against removal was outside the general run of human experience: it was whether it stood out from the general run of cases for non-removal on family or private life grounds, almost all of which tended to evoke sympathy.

Arden LJ also offered a helpful checklist on the position under the Convention where two illegal immigrants have a family together and one of them contends that he or she cannot be removed from the UK because of Article 8.

Read the full text of the judgment here