Rudi v. Secretary of State for the Home Department

"Issues:

(1) Did the Family ILR Exercise discriminate unlawfully against those who had arrived in the UK as unaccompanied minors?

(2) Did the refusal of the Secretary of State to treat Mr Ibrahimi's circumstances, as set out in his judicial review claim form, as amounting to a fresh claim is irrational?

First issue (Ouseley J):

Paragraph 52 - The Claimants? contentions are now in my judgment untenable. They pay insufficient attention to the ratio of the Court of Appeal?s decision in AL and to its necessary implications. The Court considered an individual in the same position as these Claimants. It had the original and extended Exercise before it. The issue as to
discrimination was only a live issue in that case, as in this one, because of that extension. It concluded that there was no unlawful discrimination against those
former minors, now adults, to whom the extension would have applied but for their missing parents. That conclusion cannot be challenged before me nor was it. Neither
Mr Henderson nor Mr Adler in all the plenitude of their submissions contended that there was an Article 14 issue which the Court had not considered and which remained
open to them, arising out of their contention that there was no rationale for the distinction between adults depending on the whereabouts of their parents which it was
said that the extension of August 2004 embodied. If any discrimination for Article 14 purposes is justified on the evidence which the Court of Appeal had before it, it is to
my mind impossible to contend that that self same distinction is irrational. The common law ground stands or falls with the Article 14 justification, just as it did on
the primary arguments addressed to me relating to the position of children. The Claimants? submissions simply ignored the true import of the decision of the Court of
Appeal.

Paragraph 54 - I note in passing that it is a fallacy for the Claimants to suppose that the absence of an explicitly developed separate rationale for the extension shows that it lacked a rationale. Their notion that the absence of detail to explain the anomalies which lay behind the extensions showed it to lack rationale is incorrect. But even if that had
been right, the conclusion which they then drew is questionable at least. Their consistent submission was that the extension lacked rationale and so was irrational. If
that were so, their case must fail. The very policy upon which they rely to assert an unreasonable distinction would be unlawful. Altering the policy in the way contended
for by the claimants would not provide it with a rationale. Moreover, their assumption that it is for the Court to correct any such unlawfulness by altering the
policy to favour just this group of Claimants, and then holding to be unlawful those decisions which failed to respect that policy as reformulated by the Court, is
problematic. Any such alterations are capable of giving rise to their own anomalies and irrational distinctions in practice, of which a court may know nothing.

Paragraph 55 - The Claimants? case that there was a separate issue which had not been considered was also based on a misunderstanding of the SSHD?s position and indeed a
misrepresentation of it. The SSHD?s position was that there was no need to provide separately a rationale for the position of adults as it emerged under the extension
because it was simply an adjustment to the existing policy which was designed to deal with families which now included young adults as time moved on, for reasons now
held to be lawful. The different treatment of these young adults stems from their different position as members of a family on arrival and continuing at 24 October
2003. It reflects the original purpose of the Exercise, and that is why the Court of Appeal treated the extension in the way it did. The different treatment accorded to the
unaccompanied minor, now an adult, and the accompanied minor, now an adult is essentially a consequence of their original status. There is no further issue not before
the Court of Appeal.

Paragraph 57 - Moreover, the general position of the SSHD as explained by Mr Waite is not as submitted by Mr Henderson. The SSHD did not suggest that ILR under the Exercise as extended was routinely granted to young adults who no longer formed part of the family unit. That misrepresentation was the foundation for much of the argument. I
return to what Mr Waite wrote. First, he said, the vast majority of the benefiting families were living in the same household as a family unit. I see no reason not to
accept that; the Claimants do not reject what the SSHD said; they accept it but rely upon their misunderstanding or misrepresentation of it. So the general position is
quite opposite to what they say. There is no general anomaly. The Claimants are not in a parallel position to those who are living with a family in a family unit when it
comes to the application of the various factors which animated the Exercise.

Paragraph 58 - Second, the mere fact that the dependant has left the family home would not exclude them; a broad view was taken. I assume that the SSHD did not intend to draw a distinction between those who had left the family home and those who were part of the family unit. But it is not difficult to envisage ways in which young adults might
have a relationship of dependency either way with parents without being clearly part of the same household, in ways which would warrant a broad view being taken for the
purposes of the family exercise, and in particular in ways which might make removal arguably difficult under Article 8. It could apply to students who lived away and were
largely self supporting through employment, or to those starting out on a career, essentially with their own base, but maintaining a foothold in the family home; or
those who provided filial support to ageing parents who were not wholly dependant on them. Their removal could give rise to problems of alternative public care, loss of
sibling connection or support, arguable Article 8 issues. The question for the SSHD at this stage was not whether if he really pushed the issue he would win through the
courts and achieve removal, but whether the effort required to do so was disproportionate, in the context of the backlog exercise.

Paragraph 59 - It would be idle to pretend that none of these factors could apply in some form or other to those who had arrived as unaccompanied minors; the distinctions in life are rarely so sharp edged. But that does not alter the essential rationale for the difference: they are more readily removable because they do not have the family connections in
general; their employment is less likely to remove a family from being a public burden. The rationale for the Exercise was lawful; the extension has not been shown
to be irrational. Rather it extends the Exercise as intended.

Paragraph 60 - Accordingly, the ratio of AL shows that the exclusion of the Claimants from the operation of the extension is not discriminatory, and the common law challenge is
equally doomed to fail on the same reasoning. There was no significant argument which the Court of Appeal lacked and the elaborate submissions made by the
Claimants in response to the decision in AL cannot show that it is distinguishable, or that there is a new point to be considered. Mr Rudi?s claim fails and is dismissed.

Second issue (Ouseley J):

Paragraph 75 - The Claimant?s arguments are not tenable. The starting point is that there is no Rule or policy which applies to him. He falls outside the scope of the Family Exercise and its limitations are lawful. He has had his asylum claim and a human rights claim including Article 8 heard and dismissed. He seeks to raise a fresh claim based on
Article 8. The arguably new material consists of his relationship with his cousin which he could and should have adduced before the Adjudicator but did not; his relationship with his girlfriend, the greater lapse of time and what he sees as the rationale of the Family Exercise even if its terms did not apply to him. All this is set within the overarching submission that the SSHD has delayed inordinately in reaching a decision on his case and the while he has become embedded in a community in the UK.

Paragraph 76 - The failure of the Claimant to mention his cousin before the Adjudicator is surprising but the essential facts are not disputed, only the degree to which any dependency on his cousin exceeds that which might be expected between cousins. I expect that he would succeed in establishing that the degree of emotional dependency was greater than would normally be found between cousins, but that it would be no more and probably less than that between adult brothers. There is no basis for accepting that the
emotional dependency is such that removal would have ?disastrous emotional consequences? for the Claimant, as the cousin but not the Claimant says. The cousin?s statement incorporates language which is that of a lawyer and he is not obviously qualified to make that assessment. It is obvious that the degree of dependency is considerably overstated in view of the failure to mention it to the Adjudicator. They now live separately and seeing each other at least once a week cannot support that degree of dependency. Besides it is clear that, as young adults, their dependency will reduce as other relationships develop, work locations change and they develop separate lives. Moreover, the departure of the Claimant for Kosovo would only break the relationship completely if they were unable to see each other or to communicate with each other and I see no reason to suppose that the rupture would be so final and complete. It is not to be overlooked that the cousin does not say that he cannot return because he is and remains a refugee. His outstanding application may prevent his removal but not his voluntary departure to a place where he would not be persecuted.

Paragraph 77 - I see no reason to suppose that the Claimant and his girlfriend have not been living together since early 2006, or rather that he would fail to establish that on an appeal, if the relationship survived. I also accept that an Immigration Judge would hold that he could not apply for entry clearance based on this relationship. There is currently no
evidence either way as to whether the relationship could be carried on through her going to Kosovo or him to Slovakia; and for present purposes I assume that he could
show that neither could go to the other?s country. But the IJ would also note that the relationship had developed quite recently and while their immigration statuses were
precarious. The length of time which the Claimant has been here for and his age make such relationships more probable than not, but there is legitimate scope for debate as
to the stability of any such relationship as a basis for a durable permission to remain. He has not been deprived of any specific benefit or opportunity of the type which was
so influential in the decision in Shala.

Paragraph 78 - He has been here for six years and the impact of that period of time on him has to be considered. The delay in reaching a decision was inordinate even making all due allowance for the pressure of the numbers of applications facing the SSHD. I do not accept Mr Adler?s latest suggestion that had his case been dealt with reasonably
expeditiously, Mr Ibrahimi would have been granted asylum either by the SSHD or on appeal. He would have expected a grant of ELR up to his eighteenth birthday and
the opportunity then to seek an ?upgrade? but that would have depended on the circumstances including the fact that he could be returned to Kosovo without facing
persecution. In fact as Mr Waite points out in response to Mr Adler?s claim that the consequence of the failure to grant ELR until the Claimant?s eighteenth birthday on 5
March 2003, was that he could not seek an ?upgrade? and have his asylum claim or human rights determined judicially, that is in fact exactly what he did have in
February 2004. The lapse of time has been accompanied with the development of his private and family life, as would be expected. It has weakened with his cousin and
started with his girlfriend.

Paragraph 79 - An Immigration Judge would have to approach the Family Exercise on the footing that the Claimant fell outside it and that its scope was lawful. Much of the rationale could apply to many whose lives had developed over the prolonged periods for which they remain in this country either without a decision or before removal action. But the approach in Mongoto to those who fall outside the scope of a particular policy to my mind precludes an Immigration Judge in effect expanding it to cover near misses or
those to whom aspects of the rationale could apply. I accept that there may be cases in which the rationale for a policy may inform the judge of the significance of a
particular point; there may be lacunae, but that is very different from treating a policy as the basis for extension by analogy or comparison. That is not what Shkembi
decided. There is not a near miss penumbra around every policy providing scope for its extension in practice to that which it did not cover, and this case is not a near miss
but wholly outside the Exercise. The rationale for the exercise does not apply to the Claimant, although some of the points made about its purpose could apply to any who
have stayed for a while in this country after their appeals on all grounds have been dismissed.

Paragraph 80 - An Immigration Judge would conclude that the Claimant had a private life in the UK, and could reasonably conclude that he had a family life in the UK consisting of the relationships with his cousin and his girlfriend. There would be a degree of interference with both. However, even if there were no prospect of either joining the
Claimant in Kosovo, which does not appear to be the case for the cousin, he would conclude inevitably that there would be no breach of Article 8 in the removal of the
Claimant. The case, even with the added factor of the time which he has been here and the significance of his age during that period, could not and would not be
regarded as exceptional for the purposes of Huang v SSHD [2006] QB 1.

Paragraph 81 - The reality is that he has no claim for protection and no claim within the Rules or under any extra statutory policy. He is in a relationship started fairly recently when both were of precarious status. His relationship with his cousin would necessarily diminish with time if both stayed in this country. His cousin, even if deciding not to
return with him to Kosovo, could still maintain contact. The extra time which he has had here after February 2004 and the dismissal of his appeals, could really be given
only very limited weight. The delay in making a decision has not deprived him of any rights, procedural or substantive. He has in fact had the human rights appeal. It is not
a procedural immigration provision which is being enforced. The delay in decision making has had no really substantial effects nor has the overall length of time which
he has been here, contesting his removal. There is no arguable fresh claim and the SSHD?s decision on that is not challengeable. No IJ would find that these were in
sum exceptional circumstances.

Paragraph 82 - The suggestion that the precariousness of his position, his failure to embed himself further, is due to the decision-making delay is not supported by evidence. The
Adjudicator dismissed his appeal nearly two years before he started cohabiting with his girlfriend. He has grown apart from his cousin as they become young adults. Specific prejudice is one thing, but a prejudice through not being in a position to assert greater prejudice is quite another.

Paragraph 83 - The suggestion that the SSHD has only set out what his views are and not asked himself what an IJ might think is one possible view of the decision letter. But, in
reality the whole exercise involves a prediction and he does not think that any IJ would disagree with him. I do not decide this on the basis that there is no new material to be looked at, but what is new is quite limited: the relationships with the cousin and the girlfriend, and the lapse of time. The absence of family in Kosovo was known to the Adjudicator. Taking the material, old and new, as a whole, any appeal based on it would be bound to be dismissed.

Paragraph 84 - That leaves the question of whether there is an exceptional case outside the Family Exercise which the SSHD has unlawfully failed to recognise. This is essentially answered by the factors which I have already referred to. There is no such case. This application is also dismissed."