Practice and Procedure


PUBLISHED December 18, 2003

The Immigration Appeal Tribunal had been correct to find that it would not be disproportionate to return the appellant to Bosnia, even though he had established a family life in the UK.Appeal from a decision of the Immigration Appeal Tribunal that it would not be disproportionate to return the appellant ('V') to Bosnia, even though he had established a family life in the UK. V was an orthodox Serb who was brought up in Croatia. V's father was imprisoned in Croatia in 1991 and his family suffered from discrimination, abuse and ill-treatment. In 1998, V learnt that the police were looking for him because he was due to undertake his military service. He escaped to Bosnia where he registered as a resident. V then returned to Croatia where he became engaged. V and his fiancee arrived in the UK in September 2001 and he claimed asylum on the basis of his ill-treatment by the Croats. The respondent ('S') concluded that V had not established that he would be liable to persecution if he was returned to Bosnia or Croatia, which could justify a claim for asylum under the Geneva Convention, or a risk of ill-treatment sufficient to amount to a breach of Art.3 European Convention on Human Rights 1950 if he were returned to either country. S further contended that the concerns raised by V was not sufficiently serious so as to engage Art.8 of the Convention. V appealed and the adjudicator upheld S's decision on the Geneva Convention and Art.3 but, as V's mother, brother and fiancee seemed likely to remain in the UK, his removal would amount to a disproportionate interference with his family life under Art.8. The adjudicator relied on three factors for his decision: (i) V's age of 27 years; (ii) his liability to do military service in either Croatia or Bosnia in the future; and (iii) the fact that he had no home to return to. S appealed. The Immigration Appeal Tribunal found that it was not open to the adjudicator to find that it would be disproportionate to return V based on the three reasons he had given.HELD: The issue of proportionality was a question of judgment and balance but not of itself a matter of discretion (Edore v Secretary of State for the Home Department (2003) EWCA Civ 716 considered). S had not himself taken any decision on proportionality. V had not sought to fully rely on Art.8 until the matter came before the adjudicator. On the material before S, there was no basis upon which V could have established that his removal would engage Art.8. However, the evidence before the adjudicator satisfied him that V was living with his brother, mother and fiancee, which could be described as family life under Art.8. Accordingly, the appeal should be determined on the basis that V's removal to Bosnia would amount to interference with his family life. None of the adjudicator's factors were relevant. Any errors made by the Immigration Appeal Tribunal in giving weight to the factors relied on by the adjudicator were in V's favour and as such could not vitiate its decision. The correctness of the adjudicator's decision had to be judged by assessing the extent of the interference with V's family life against the need to enforce effective immigration control. There was no evidence of dependence upon V's brother or V's fiancee which could justify the conclusion that these were reasons why removal would have a disproportionate impact upon him. On the material before the Immigration Appeal Tribunal it was entitled to take the view that V's fiancee could accompany V if she wished. V had not been shown any error of law in the approach of the Immigration Appeal Tribunal.Appeal dismissed.

[2003] EWCA Civ 1843