Strbac & Anor v Secretary of State for the Home Department

Factual and Procedural Background

This opinion concerns an application for permission to appeal the dismissal by the Immigration Appeal Tribunal ("IAT") of an appellant's asylum claim. The appellant, an ethnic Serb national of Croatia born in 1950, arrived in the United Kingdom in January 1999 with his wife and claimed asylum. The Secretary of State had rejected his asylum claim in a decision made in November 1999 but notified to the appellant only in November 2000. The appellant had served in the Serbian militia and Yugoslav army during the Croatian war and feared persecution due to his wartime activities and ethnicity. After initial dismissal by an Adjudicator in December 2002 and subsequent dismissal by the IAT in June 2004, the appellant sought permission to appeal. The case involved examination of delays in processing the asylum application, the impact of Home Office policy bulletins regarding ethnic Serbs from Croatia, and relevant case law including the decisions in Shala and DK.

Legal Issues Presented

1. Whether administrative delay in processing the appellant's asylum claim should affect the proportionality assessment under Article 8 of the European Convention on Human Rights (ECHR) regarding removal.
2. Whether the appellant's personal circumstances and risk of discrimination or persecution upon return to Croatia engage protections under Articles 3, 8, and 14 of the ECHR.
3. Whether the IAT's reasoning and conclusions on the appellant's claims, including the application of relevant Home Office policy bulletins and case law, were legally sound.

Arguments of the Parties

Appellant's Arguments

• The appellant argued that delay in processing his asylum application denied him a presumption of leave to remain, which would have allowed in-country applications and avoided interference with family life, relying on the precedent in Shala.
• He contended that as an ethnic Serb from a war-affected area, he faced a real risk of persecution or discrimination on return, particularly due to his age, inability to recover property, and poor employment prospects, invoking the DK issue.
• The appellant challenged the IAT’s characterization of his interview as being "wholly based on economic reasons," emphasizing his fear related to wartime activities and family connections.
• He submitted that the IAT failed to provide legally sufficient reasons for rejecting his claims, especially regarding discrimination and housing issues.
• The appellant also relied on human rights provisions under Articles 3, 8, and 14 of the ECHR, arguing that past and prospective treatment amounted to breaches of these rights.

Respondent's Arguments (Secretary of State)

• The Secretary of State maintained that the delay in the asylum decision was within a reasonable period and did not entitle the appellant to any presumption of leave to remain.
• It was argued that Home Office policy bulletins did not establish a group policy favoring ethnic Serbs from Croatia, and each case must be decided on its merits.
• The Secretary of State contended that the appellant's fear of persecution based on wartime activities was not substantiated and that discrimination faced by ethnic Serbs in Croatia did not reach the threshold of persecution under the Refugee Convention or breach of ECHR Articles 3 or 8.
• The respondent disputed the introduction of late evidence and maintained that the appellant's removal would not be disproportionate under Article 8.
• The Secretary of State argued that the appellant’s difficulties with housing and employment did not amount to a real risk of ill-treatment or a violation of human rights sufficient to prevent removal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the procedural history and factual background, noting the appellant's credible account of his military service and fears upon return to Croatia. The court examined the appellant’s reliance on the Shala decision, which involved delay in asylum processing and its impact on Article 8 proportionality. It concluded that Shala was a fact-specific decision and did not establish a general legal principle that delay automatically renders removal disproportionate. Delay is a relevant factor but must be weighed in the overall proportionality assessment.

The court analyzed Home Office policy bulletins 2/99 and 4/99, which clarified that no group policy existed for ethnic Serbs from Croatia and that claims must be assessed individually. The court accepted the IAT's conclusion that the appellant’s claim was largely based on economic reasons and that it was speculative to assume he would have been granted leave had his claim been decided within a reasonable time.

Regarding the DK issue, the court reviewed the appellant’s personal circumstances, including age, loss of property, and employment prospects, comparing them to the facts in DK. The court found no sufficient exceptional circumstances to distinguish the appellant’s case from DK and S & K, which held that discrimination and hardship did not reach the threshold of persecution or breach of Articles 3 or 8. The court rejected the argument that a "continuum" of past and future events could constitute a breach of Article 3 absent a real risk of ill-treatment upon return.

The court also addressed claims based on Article 14 combined with Articles 3 or 8, concluding that discrimination alone, without a substantive breach of those rights, does not establish a violation. It emphasized that Article 3 is a binary right, either breached or not, and that Article 8 does not guarantee a right to a home or employment.

The court considered the impact of the Huang decision, reaffirming that only truly exceptional cases justify allowing appeals against removal on Article 8 grounds. The appellant’s case was found not to be exceptional, given the absence of interference with family life and the tenuous private life claim.

Ultimately, the court determined that the appellant’s removal would not be disproportionate and that the IAT’s reasoning, while sometimes terse, was legally sufficient and supported by the evidence.

Holding and Implications

The court GRANTED permission to appeal but DISMISSED the appeal.

The decision confirms that delay in processing asylum claims is a relevant but not determinative factor in Article 8 proportionality assessments. It reinforces that the Shala decision is fact-specific and does not establish a general rule favoring applicants where delay occurred. The court upheld the IAT's approach that claims by ethnic Serbs from Croatia must be assessed individually, with no group policy presumptions. The ruling clarifies that hardship, discrimination, or loss of property, without a real risk of persecution or breach of Convention rights, does not prevent removal. No new legal principles were established; rather, existing case law and policy were applied to the appellant’s facts.