D v Secretary of State for the Home Department (Croatia)

Factual and Procedural Background

This appeal concerns a decision by an Adjudicator dismissing the Appellant's appeal against the Secretary of State's refusal to grant her permission to remain in the United Kingdom. The refusal was based on the conclusion that her return to Croatia would not breach her rights under Article 8 of the European Convention on Human Rights (ECHR). The Appellant, a Croatian citizen, arrived in the UK in 1992 as an au pair and was granted leave until 1994. After seeking asylum in 1993, which was refused in 1994, she remained unlawfully in the UK despite notices to leave. She subsequently formed a relationship with a man who became her husband in 1999. Her husband is a Serb from Croatia, who obtained exceptional leave to remain and later British citizenship. The Appellant applied for leave to remain based on her marriage, but this was refused in 2001 on the grounds that she had overstayed and did not meet the relevant immigration rules or policies. The case proceeded through the appeal process, with consideration given to Article 8 rights and proportionality of removal, including the impact on her family life, which now included a young child born in 2002.

Legal Issues Presented

1. Whether the Appellant’s removal from the United Kingdom would constitute a disproportionate interference with her rights under Article 8 of the ECHR.
2. Whether the Appellant fell within the scope of immigration policy guidelines (DP3/96 or DP2/93) relating to grants of leave based on marriage or common-law relationships.
3. Whether the delay and failure of enforcement action by the Secretary of State affected the proportionality of removal.
4. Whether the Appellant’s unlawful presence in the UK and defiance of removal notices affected the assessment of proportionality under Article 8.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that removal would breach her Article 8 rights by disproportionately interfering with her family and private life, especially considering her marriage, child, and settled life in the UK.
• She relied on the delay by the Secretary of State in enforcing removal and submitted that this delay should benefit her case.
• She contended that the policy DP2/93, concerning common-law relationships, should still apply alongside DP3/96, and that her relationship qualified for consideration under these policies.
• Her legal representative highlighted the financial and childcare difficulties that removal would cause, including potential loss of the family home and job, and disruption to the child’s care.
• Reference was made to relevant case law emphasizing proportionality and the consideration of family life, including Boultif v Switzerland, Razgar v SSHD, and Shala v SSHD.

Respondent's Arguments

• The Respondent maintained that the Secretary of State was entitled to apply policy DP3/96 and that the Appellant did not meet its criteria, as the marriage did not pre-date enforcement action by at least two years.
• It was accepted that the husband could not be expected to return to Croatia due to his refugee status and British citizenship.
• The Respondent argued that the proportionality assessment was for the Tribunal to determine, especially given the change in circumstances such as the birth of the child.
• No objection was raised to the genuineness of the marriage or the couple’s ability to maintain themselves, but removal was still justified within the immigration control framework.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined whether the Appellant fell within the Secretary of State’s policies DP3/96 (marriage) or DP2/93 (common-law relationships) and concluded she did not, as the marriage and relationship did not pre-date enforcement action by two years. The court reviewed ministerial statements and found that DP2/93 was superseded and did not apply to common-law relationships after February 1996. The court acknowledged the Appellant’s established private and family life in the UK, including her child and marriage, but emphasized that removal would likely be temporary and proportionate given the importance of immigration control.

The court weighed the Appellant’s unlawful presence and defiance of removal notices heavily against her, noting that such conduct undermines claims based on family life. The court recognized the serious disruption removal would cause, including financial hardship and childcare difficulties, but found these did not outweigh the public interest in enforcing immigration laws.

Applying relevant case law, the court held that removal decisions are lawful if they fall within a reasonable range of responses by the Secretary of State. Although the Appellant’s circumstances had changed since the initial refusal, including the birth of a child, this did not render the removal disproportionate. The court emphasized that enforcement action had been initiated twice previously and that the Appellant had knowingly remained unlawfully.

Holding and Implications

The court DISMISSED the appeal, upholding the decision to remove the Appellant from the United Kingdom.

The direct effect of this decision is that the Appellant must leave the UK to apply for entry clearance from Croatia. The ruling reinforces the principle that unlawful presence and defiance of immigration enforcement weigh heavily against claims of disproportionate interference with family life under Article 8. No new precedent was established; rather, the court applied existing policies and case law to the facts, confirming the Secretary of State’s discretion to enforce immigration control proportionately despite family life considerations.