Plotters of Fort Dix terror attack identified one may have filed rejected claim for asylum in UK
May 8, 2007
Fort Dix plotters identified
May 8, 2007 - San Francisco, CA - PipeLineNews.org - Those involved in the Fort Dix terror plot have been identified as Shain Duka, Eljvr Duka, Dritan Duka, Mohammad Shnewer, Serdar Tatar and Agron Abdullahu.
Mohamad Shnewer, from Jordan is a U.S. citizen, Serdar Tatar is from Turkey and Agron Abdullahu is from the former Yugoslavia
Shain, Eljvr and Dritan Duka are brothers and have been residing in the United States illegally, they also hail from the former Yugoslavia.
We believe that Dritan might have been involved in an unsuccessful claim of asylum in the UK [source http://listserv.buffalo.edu/cgi-bin/wa?A2=ind0211&L=twatch-l&O=D&F=P&P=16520] a decision which was finalized in 2002.
Law enforcement became aware of the plot when a storekeeper alerted the FBI about a video tape he had been asked to convert into a DVD.
The tape showed 10 men engaged in military training exercises "while calling for jihad and shouting in Arabic, 'Alahh Akbar' ['God is great,' a historic battle cry used by Muslim warriors]
Six of the 10 men depicted in the tape were arrested in the plot, the location and status of the other four is unknown at this point.
Adding to the import of this case is the fact that Serbian Muslims are trying – with the assistance of the United Nations and the U.S. State Department - to establish an Islamic state of Kosovo.
Islamic Radicals" Arrested In Plot To Attack Fort Dix And Kill U.S. Servicemen
May 8, 2007 - San Francisco, CA - PipeLineNews.org - Six Muslims from the former Yugoslavia and Albania have been arrested on charges they were involved in a terrorist plot to attack the Fort Dix Army base. Their intent was to "kill as many soldiers as possible," government sources said.
The plan involved storming the fort with full-auto AK 47 and M 16 battle rifles which the suspects were negotiating to buy as part of a Federal sting operation.
U.S. Attorney's Office spokesperson Greg Reinert stated that those picked up in the terror sweep were "Islamic radicals" and it is believed that the six may have been operating under the direction of al-Qaeda.
The six are scheduled to appear in the U.S. District Court in Camden Tueseday to face charges which will include conspiracy to kill U.S. servicemen, said Michael Drewniak, a spokesman for the U.S. Attorney's Office in New Jersey.
Five of the six are reported to have lived in Cherry Hill, New Jersey.
MIM: The Dritan Duka mentioned in the document below may be the same one who was arrested in New Jersey. The fact that Dritan Duka mentioned below is an illegal alien may point to having come over via the UK to Canada perhaps and coming over the border. As more details emerge this information can be conclusively established.
Tribunal Watch archives since 1995 http://listserv.acsu.buffalo.edu/archives/twatch-l.html
Neutral Citation Number:  EWHC 2422 Admin CO/1980/2002 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice Strand London WC2
Monday, 4 November 2002 B E F O R E:
MR JUSTICE PITCHFORD
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THE QUEEN ON THE APPLICATION OF DRITAN DUKA JULIANA DUKA and RENOLS KABASHI (CLAIMANTS)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (DEFENDANT) Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
MR MARK MULLINS (instructed by Sutovic & Hartigan, 271 High Street, Acton, London, W3 9BT) appeared on behalf of the CLAIMANT MISS E GREY (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
J U D G M E N T (As Approved by the Court) Crown copyright© Monday, 4 November 2002 1. MR JUSTICE PITCHFORD: This is an application for judicial review of decisions by the Secretary of State for the Home Department between 24 April and 21 August 2002, declining to grant a fresh claim by Juliana Duka for leave to remain in the United Kingdom, pursuant to her rights under Article 8 of the European Convention on Human Rights. Permission to apply was granted by Harrison J on 5 July 2002. 2. There are three claimants named in the application. In order to follow how this comes about, and to understand the grounds on which the review is sought, it is necessary to consider the history of the matter. Dritan and Juliana were born and married in Kosovo. They left Kosovo on 28 March 1999, travelled to a refugee camp in Albania, and arrived in the United Kingdom on 2 June 1999, where Dritan claimed asylum, naming his wife as his dependant. Renols Kabashi was born on 27 January 1984. He is Juliana's younger brother and is now, therefore, aged 18. He arrived in the UK on 25 October 2000, when he was 16, and he too claimed asylum. The Secretary of State refused both claims. 3. The first appeal to be held was that of Dritan Duka on 13 February 2001. By that time, Mr and Mrs Duka were living in Oxford with their 11-month old son, Drijol. Juliana gave evidence. She was doing voluntary work for Social Services and hospitals in the area. She said she was studying at Oxford college and had applied to Oxford Brookes University for a place on their Management and Administration course, commencing September 2001. She is a talented linguist and had undertaken a study course in computers. She said she wanted to stay in the United Kingdom to pursue higher education. The adjudicator was provided with, and read, a number of references, which Juliana had acquired. 4. The adjudicator did not believe their story that Dritan had given information to the Serbian police which would lead to his persecution by his own people in Kosovo. He rejected their claim that he would be treated as a traitor and made the subject of reprisals if he returned. The reasons for the rejection of that account of their flight are not now material. Having considered the objective evidence, the adjudicator found that there was no well founded fear of persecution and, accordingly, the asylum appeal was dismissed. 5. He proceeded to deal with the human rights grounds and dismissed them with the following determination. "35) Firstly, I do not agree that the fact to return would involve any breach of Article 3 ECHR. Conditions could be better in Kosovo but what UNMIK is doing there at the present time is sufficient for there to be no inhuman or degrading treatment consequent upon return. I have read the UNMIK Policy Paper on the Repatriation of Kosovar Albanians at pages 72 to 80 of the respondent's bundle and conclude that everything that can be done is being done to ensure that returnees do not face consequential risk of inhuman or degrading treatment. The appeal on this ground must therefore fail. "36) In considering the claimed breach of Article 8 ECHR I find that the removal of the appellant and his wife who are both illegal entrants with their young child, or the removal of the appellant alone would amount to an inevitable interference with their family life. However, I conclude that that interference would be justifiable. It is legitimate for a State to have an immigration policy and the mere fact that its implementation would interfere with family life does not render unlawful every such act of implementation, providing that it does not offend the principal of proportionality. Where there is an interference with family life as a consequence of removal there must be considerations which might reasonably be accepted as amounting to a substantial objective justification for the interference; R v Secretary of State for the Home Department ex parte Isiko Court of Appeal December 20 2000. "37) The separation of the appellant from his wife should he be returned separately to Kosovo, both of whom are illegal entrants to this country in any event, is a justifiable interference with family life. It cannot possibly be said to be disproportionate to the implementation of the removal decision which has been properly made by the respondent. He is giving effect to the immigration policy of this country and there is, I conclude, substantial objective justification for this interference. Therefore the grounds of appeal raised under Article 8 ECHR must also fail." 6. He continued, however, to deal with a request to recommend exceptional leave to remain as follows: "38) I have been asked to make a recommendation for leave to remain given the fact that the appellant's wife is making a contribution to her local community and has a place at university to start in September 2001. I recommend that her particular circumstances are examined carefully with a view to establishing whether she is able, as she claims, to support herself and her family without recourse to public funds while she completes her university degree course. It may be the case that she can meet the criteria usually applied for entry clearance to this country as a student." 7. It will be observed that nowhere in the adjudicator's determination was any reference made to the third named claimant. 8. Leave to appeal that determination was refused by the Immigration Appeal Tribunal on 8 May 2001. On 1 August 2001 directions for the removal of Renols Kabashi were set. On 10 April 2002 a different adjudicator heard Renols Kabashi's appeal. However, the decision was not promulgated until 10 May 2002. In the meantime, on 24 April 2002, removal directions were set for Mr and Mrs Duka and their son. They were detained in Harmondsworth. 9. Solicitors made representations, claiming that removal would amount to a breach of Article 8, in a letter of 24 April 2002. For the first time, it was claimed that Mr and Mrs Duka stood in a position of parental responsibility towards Mrs Duka's brother, Renols. It was put in this way, at page 32 of the bundle: "As you may be aware Mrs and Mrs Duka have akin to parental responsibility for Mrs Duka's brother, Mr Renols Kabashi (DOB: 27/01/1984). While Mr Kabashi is now over 18 he has been diagnosed with depression and is suffering from post-traumatic stress relating to the trauma that he experienced in Kosovo. He is on anti-depressant medication and has been referred for counselling. We enclose herewith two letters from Dr Fawcett dated 27/12/2001 and 09/04/2002 in confirmation of the same. "We are instructed that soon after arriving in the United Kingdom Mrs Juliana Duka instructed Asylum Welcome in Oxford to trace her parents and sister in Kosovo. We are aware that instructions were given to the British Red Cross some time ago by Asylum Welcome. Although Asylum Welcome lost Mrs Duka's file we understand that steps had been taken by the British Red Cross to trace the family. We can confirm after our telephone conversation of today that there is no trace of Mrs Duka's parents or sister. A letter from the British Red Cross of today's date confirm the same. "We would therefore ask that Mr and Mrs Duka are not removed from the United Kingdom pending the outcome of the brother's One-Stop Appeal, heard on the 8 April 2002 [it is stated in the letter, although, I believe, it was 10 April] (the determination yet to be promulgated) as he is a vulnerable young man who is dependent and relies on the support of the Duka family." "It is our submission that it would be a breach of Article 8 and Mrs Duka's right to a family life to separate her from her vulnerable brother. It is our opinion, and without prejudice to the arguments arising under Article 8, that no removal should take place until the brother's case has been finally determined. We worry that to leave Mr Kabashi on his own without his family support would compound and cause to deteriorate his mental condition." 10. Of the letters from the general practitioner, Dr Fawcett, referred to I have been provided with one, dated 27 December 2001, in which Dr Fawcett confirms that Mr Kabashi was diagnosed with depression in August 2001, partly related to trauma that he had experienced in Kosovo. He was taking amitriptyline. It was anticipated that he would be taking medication for at least a year. Prognosis was difficult to predict beyond that time. She concluded: "I do feel that his health would be detrimentally affected if he was removed from the UK as some of his family are here who give him a lot of support. He would find it extremely difficult to go back to Kosovo." 11. It was said, in the Duka's solicitor's letter, that, since Mr Duka's unsuccessful appeal, he and Mrs Duka had taken into their household two unaccompanied minors, one of whom had been granted exceptional leave to remain until 26 February 2006. Mrs Duka was being assessed with a view to becoming a permanent carer, employed by Social Services. She was currently working as a maternity care assistant at the Radcliffe Hospital and now wanted to study general nursing. 12. In view of the urgency of the matter, on the same day at 5.45pm Miss Litten replied on behalf of the Secretary of State. The first point made was that, under the provisions of the Immigration and Asylum Act 1999, it was the obligation of Mrs and Mrs Duka to raise at the first opportunity all those grounds upon which they intended to rely in support of their appeal. This was the first time that the presence in their household of Mrs Duka's brother had been mentioned. She continued: "Whilst the Secretary of State accepts that Mrs Duka and her family may have established a family life since they came to the UK, he does not accept that the circumstances surrounding their case are exceptionally compassionate to warrant him exercising his discretion outside of the Immigration Rules and granting your clients leave to remain. The Secretary of State has noted your representations that Mrs Duka is making a large contribution to the local community and has a university place to study nursing. However, the Secretary of State also notes that you have provided no evidence that Mrs Duka has been accepted on a nursing course, and nor have you satisfied the Secretary of State that she would be able to support herself and her family without recourse to public funds throughout the duration of her course. He is of the opinion that your client has had ample time in which to submit this information and he is not willing to postpone their removal pending further enquiries." As to the presence of Renols Kabashi in the household, she said: "Whilst the Secretary of State accepts that Mr and Mrs Duka may have a close relationship with Renols, he does not accept that Renols can be considered as a dependant on his sister and brother-in-law's claim as he is now over 18 and therefore an adult. The Secretary of State would submit that Renols is welcome to return to Kosovo with his sister and her family at any time if he should so wish. The Secretary of State is aware that Renols' appeal for asylum remains undetermined, however he is not prepared to postpone his actions pending the outcome. On this basis, the Secretary of State is not prepared to reverse his decision to refuse your clients leave to remain and to detract from the usual avenue of removing persons who have entered, and remained in, the United Kingdom illegally." 13. In response to the information about fostering unaccompanied minors, she said: "The Secretary of State does not consider the fact that Mr & Mrs Duka have been acting as foster parents to be exceptionally compassionate to warrant them being granted leave to remain, when they have entered the United Kingdom illegally and established a family life whilst they have been here without leave. "You have concluded in your fax that you believe these facts that you have presented give rise to a fresh application under the European Convention on Human Rights. The Secretary of State disagrees. Most of the information that you have presented was put before the adjudicator when he heard your client's appeal and those parts that are new are not considered compellingly compassionate to warrant granting your clients leave to remain outside of the Immigration Rules." "In light of all the above, the Secretary of State is refusing to treat these new representations as a new Human Rights claim and he is maintaining his decision of 13 November 2000 to refuse your clients asylum and leave to remain in the United Kingdom." 14. Orders granting a stay of removal were granted by Silber J on 24 and 25 April 2002. Proceedings for judicial review of the decision of 24 April were commenced. 15. On 10 May 2002 the determination of Renols' appeal was promulgated. In view of the current state of affairs in Kosovo, it was not contended at his appeal that he was entitled to asylum under Article 1A of the 1951 Convention. The appellant did not, himself, give evidence, but again his sister did. She said, reading from paragraph 9 of the determination: "She lives at 8 Cricket Road, Oxford. She arrived in the United Kingdom on 2 June 1999 and her asylum claim is still outstanding. She is the appellant's sister. Her brother became separated from his parents and sister. She herself has had no contact with him since 1999. When she came here in 1999 she went to Asylum Welcome in Oxford and asked for help in tracing her family. They said they would contact the Red Cross for her. She saw Fiona Morrison about it, but without success. In January 2001 Asylum Welcome said that they had lost her file, so she went to the Red Cross herself on 19 February 2002. She had not been able to contact Fiona Morrison who was presently in Pristina. "10. The witness was working full time as a care assistant in the midwifery section of the local hospital. She was born on 15 March 1979. The appellant had always lived with her. They had no other family with whom they were in contact. He had been waiting a long time to receive counselling and was being treated for depression. "11. The witness lived 15 minutes away from her parents and brother in Kosovo. She had been having treatment for migraines both in Kosovo and here. She went to a different GP in the same practice as her brother. He had been off for a few weeks but was back at school now. He was passionate about computers. She was 5 years older than him. They both go to Asylum Welcome and she tries to inquire about her family from people from Kurish who come over. The nearest large town to Kurish is Suhereka. The witness' asylum status is still to be determined and she had not yet been interviewed. Her husband was also from Kosovo and had made a separate asylum application." How much the adjudicator was told about the history of Mr and Mrs Duka's asylum application is not clear from the determination. 16. The claim under Article 3 of the European Convention on Human Rights was dismissed. The adjudicator said, at paragraph 25 of her determination: "Although this appellant experienced one incident of brutal treatment by the Serbs in March 1999, it is clear for the reasons I have set out above, that he is no longer in danger of torture or of physical inhuman or degrading treatment back in Kosovo. I have given special consideration to the letters from Dr Fawcett. There is no proper medical report on the appellant's condition. Without giving any basis for her diagnosis, Dr Fawcett has concluded that the appellant is suffering from clinical depression and PTSD which will be aggravated by returning him to Kosovo. I have carefully considered the decision in Ireland v UK. I cannot find on the evidence before me that the appellant's case reaches the high threshold required under Article 3." 17. In considering Article 8, the adjudicator accepted the diagnosis of depression, but rejected the diagnosis of PTSD. At paragraph 28 she said: "It was said in Bensaid that 'mental health must also be regarded as [a] crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world ... the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life'. In the present case it is suggested by Dr Fawcett that the appellant requires counselling together with the anti-depressant medication in order to regain full mental health. There is nothing to say either way whether counselling is available in Kosovo. It is apparently not yet available to the appellant in the UK and, given the demands on the NHS, one can speculate that he may have to wait a very long time for it over here. Meanwhile, the appellant is excelling at his studies despite his alleged handicap. In his submissions Mr Nathan purported to give evidence that depressive illnesses and PTSD do not necessarily interfere with the cognitive ability to study. Mr Nathan is not a medical expert, nor was he called to give evidence. I therefore attach no weight to those particular submissions." "29. I accept that since the appellant has been living over here for eighteen months with the only known remaining family he has, and has been studying over here, that he has established a private and family life over here. However, his sister's asylum status is uncertain and the whole family may find themselves destined to return to Kosovo. There they could continue to enjoy a family life, but it is arguable that the appellant's right to physical and moral integrity would be interfered with in respect of his mental health. It is therefore necessary for the Secretary of State to demonstrate that such interference would be proportionate to the objective to be attained. It was said in the case of Berrehab v Netherlands (1985) D&R 41, 'that it is in all cases for the state to demonstrate that the interferences correspond to a pressing social need and, in particular, that (they are) proportionate to the legitimate aim pursued'. In the present case, although the appellant has only been resident in the UK for some eighteen months, this has been during a formative part of his life, and he has spent that time learning English and computer studies. He is very young. He has not been involved in criminal activity either here or in Kosovo. He has no spouse or children abroad who will be making applications to join him. His removal to Kosovo would trigger unhappy memories which could aggravate his depression. He might not be able to obtain the support and counselling he needs in Kosovo. I am satisfied that the legitimate objective of controlling immigration and achieving an ordered society will not be undermined by allowing this appellant to remain in the UK. I am satisfied that his removal would be a disproportionate interference with his physical and moral integrity and private life. I am also satisfied that for humane reasons the Secretary of State should exercise his discretion to grant leave for the appellant to remain in the United Kingdom. I therefore allow the human rights appeal under Article 8." 18. Following further representations from Mrs Duka's solicitors on 25 April and 5 June 2002, the Secretary of State confirmed his original decision by letter of 2 July 2002. In it Mr Dapp said: "The Secretary of State has carefully considered your client's application in the light of the further representations under Article 8 but maintains that the claim advanced is not sufficiently different from the earlier claim to admit of a realistic prospect that the claim could succeed. Consequently the Secretary of State maintains his decision that he will not grant a new further right of appeal. "With regard to Mrs Duka's brother, Mr Kabashi, the Secretary of State notes that he is no longer the subject of a decision to seek to remove him from the United Kingdom. The Secretary of State does not consider that the removal of Mrs Duka has any effect on Mr Kabashi's entitlement to enter or remain in the United Kingdom. "The Secretary of State has in any event considered the impact of your client's removal on Mr Kabashi, however he does not consider that this issue affects his decision to remove your client. As regards the issue of Mrs Duka's brother, Renols Kabashi, you have stated that he needs Mrs Duka to support him in the United Kingdom and that as such Mrs Duka should be allowed to remain. This matter has been dealt with in our letter of 24 April 2002. In it we stated 'Whilst the Secretary of State accepts that Mr and Mrs Duka may have a close relationship with Renols, he does not accept that Renols can be considered as a dependant on his sister and brother-in-law's claim as he is now over 18 and therefore an adult'. "The Secretary of State does not find any basis for reversing his decision of 23 November 2000 on the basis of your representations." 19. The claim having been amended to plead res judicata, in consequence of the findings of the adjudicator in Renols' case, the whole matter was reviewed by Mr Miles Lawson Dapp, an executive officer in the Removals Caseworking Section of UK Border Control and Enforcement. That review is contained in a witness statement dated 21 August 2002. 20. The position taken by the Secretary of State can be summarised thus: (1) The adjudicator's decision that to remove Renols Kabashi from the United Kingdom would constitute a breach of his Article 8 rights was reached solely upon a judgement of the effect of such a removal on his mental health and, therefore, of his enjoyment of his private life. 2) Her decision was not based upon the right to respect for family life, but upon the right to respect for his private life, including, in this context, the right to protection of his mental health. (3) The adjudicator did not find that Renols Kabashi was dependent upon Mr and Mrs Duka for the preservation of his mental health. (4) For the purpose of considering Mr and Mrs Duka's position, the Secretary of State accepted that the claimants had established a family life in the United Kingdom, as found by the adjudicator, and had made a contribution to the community in which they had been living since their arrival. While removal of Mr and Mrs Duka from the United Kingdom would constitute an interference with that family life, the interference was lawful in pursuit of the legitimate aim of maintaining statutory immigration control and, in the light of the history, was a proportionate step to take. 21. The submission made on behalf of the claimants is that the Secretary of State is, in effect, bound by a decision of the adjudicator, that to remove Renols Kabashi would amount to a breach of his Article 8 right to a family life: family life for one is family life for all. Hence, Mr and Mrs Duka are entitled to take advantage of the finding made by the adjudicator. It follows, submits Mr Mullins, (1) that it would be unlawful for the Secretary of State to deny the existence of family life; and/or (2) to require Mr and Mrs Duka to leave the United Kingdom, in breach of both their and Renols' right to family life. It is conceded by Mr Mullins that family life is not to be assumed to exist between a parent and an adult child, compare Ahmut v Netherlands  ECHR 21702/93, paragraph 60. 22. In declaring inadmissible the application number 26292/95 by Idris Khan Ahmed Khan Pathan, the commission considered the necessity for a subsisting family relationship between adult parent and child. In its judgment it said this: "The commission recalls according to its established case-law that while Article 8 ... of the Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person is excluded, or removed from a country where his close relatives reside or have the right to reside ... " Examples are given. " ... The commission has examined whether such a degree of dependency exists between the applicant and his relatives as to give rise to the protection envisaged by Article 8 ... of the Convention ... Generally, the protection of family life under Article 8 ... involves cohabiting dependants, such as parents and their dependent minor children. Whether it extends to other relationships depends on the circumstances of the particular case. In immigration cases, relationships between a parent and adult child would not necessarily attract the protection of Article 8 ... without evidence of further elements of dependency, involving more than the normal, emotional ties ... " 23. It is common ground between the claimants and the Secretary of State in this review that the adjudicator was entitled to find that Mr and Mrs Duka and Renols Kabashi enjoyed a family life in the United Kingdom. Nevertheless, in considering whether or not it was proportionate to remove Mr and Mrs Duka from the United Kingdom, the nature of that relationship, in the circumstances of this particular case was relevant. 24. Mr Mullins invites me to consider that Mrs Duka should have been granted a right of appeal under section 65, since, to adopt the opinion of the editor of Macdonald's Immigration Law & Practice , expressed at paragraph 8.34: "In Article 8 cases where the rights of other family members are engaged, appellants will still be 'victims' of an action which removes them from or prevents them joining family members whose own Article 8 rights to family life are thereby violated." 25. This is a ground which does not appear in the claim. Furthermore, as recently as 28 October 2002, the claimants commissioned from a consultant psychiatrist Dr Sara Taylor a report upon Mr Kabashi's current mental condition and the degree of his dependence upon his sister. Such was the urgency, that the report was written in longhand and faxed to the Secretary of State. Mr Mullins made an application to me to adjourn consideration of this review, pending the Secretary of State's response to this evidence. He accepted that the Secretary of State was not in a position to deal with it today. 26. Having regard to the background to this application, I agreed with Miss Grey's objection to an adjournment. It was my judgement that the issues raised by the claim were both stale and discrete. I have declined to consider whether Mrs Duka now has a separate section 65 appeal and I have declined to consider the report of Dr Taylor. 27. I have, therefore, to consider whether the rejection between 24 April and 21 August 2002 to treat Mrs Duka's representations as a fresh claim for leave to remain on Article 8 grounds was unlawful. It is no longer the claimants' case that the Secretary of State was in law bound by the decision of the adjudicator in Mr Kabashi's case to grant Mrs Duka leave to remain on the basis of res judicata, but rather that not to do so, in the light of that decision, is irrational. Secondly, Mr Mullins invites me to conclude that the Secretary of State has failed proportionately to balance the factors which are relevant to a decision under Article 8(2) to interfere with family life. 28. I first need to consider what was the determination made by the adjudicator on 10 May 2002. It is clear to me that her findings were: (1) at the time of the hearing Mr and Mrs Duka and Renols Kabashi were enjoying a family life; (2) while Renols Kabashi's removal might amount to an interference with the right to enjoy that family life, Mrs Duka's own status in the United Kingdom was presently uncertain. It might be that Renols would have to follow his sister and brother-in-law to Kosovo in order to retain that family life; (3) Renols suffered from a mental illness, depression, of sufficient severity to require treatment in the United Kingdom, of which he would be deprived if removed. Furthermore, his removal would trigger memories which could aggravate his condition. In those circumstances, removal would be disproportionate interference with his physical and moral integrity and thus his private life. 29. The adjudicator's citation, at paragraph 15 of her determination, of the decision of the European Court in Bensaid v United Kingdom  ECHR 44599/98, and her quotation from Bensaid in paragraphs 27 and 28, make her thought process entirely clear, in my view. Mr Bensaid was an Algerian national. From about 1994 or 1995 he had suffered from schizophrenia taking the form of a psychotic illness. He responded sufficiently to treatment and his illness was successful managed, apart from a minor relapse in 1997, following his drug treatment being changed to olanzapine. 30. He applied for judicial review of his proposed expulsion on the grounds that it would cause him to suffer a full relapse of his condition and would amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights. That application was refused in the High Court and renewed before the Court of Appeal. 31. Following the dismissal of his application, he brought a further application against the United Kingdom in the European court, alleging that his proposed expulsion was contrary to Articles 3 and 8 of the Convention. The Court rejected the Article 3 claim and considered Article 8. Mr Bensaid's argument before the European Court, as stated at paragraph 44 of the judgment was: "... that the removal would have a severely damaging effect on his private life in the sense of his moral and physical integrity. The National Health Service ... had been responsible for the applicant's treatment since 1996 and withdrawal of that treatment would risk a deterioration in his serious mental illness, involving symptoms going beyond horrendous mental suffering -in particular there would be a real and immediate risk that he would act in obedience to hallucinations telling him to harm himself and others ... "The Court's assessment "46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity (see the Costello-Roberts v United Kingdom judgment of 25 March 1993, Series A No 247-C,para 36). "47. ... Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see eg Burghartz v Switzerland, Comm Report, op cit, para 47; Friedl v Austria, Series A No 305-B, Comm Report, para 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life." 32. While the adjudicator found that Renols Kabashi enjoyed family life in the United Kingdom, she manifestly did not decide that to deprive him of that family life would be a disproportionate response under Article 8(2). She found only that to return him to Kosovo would be a disproportionate interference with his private life on the grounds of his mental health. On 13 September 2002 the Secretary of State granted Mr Kabashi leave to remain for a period of 12 months, expiring on 12 September 2003. 33. How, then, am I to approach the issue of rationality and proportionality? My attention has been draw to three cases. In The Queen on the Application of Mahmood v Secretary of State for the Home Department  INLR 1 Laws LJ said at page 8, paragraph 16: " ... The second approach recognises that a fundamental right, here family life, is engaged in the case; and in consequence the court will insist that that fact be respected by the decision-maker, who is accordingly required to demonstrate either that his proposed action does not in truth interfere with the right, or if is it does, that there exist considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference." At page 9 of the report, paragraph 19: "With respect this learning [Laws LJ had considered the authorities] shows that in a case involving human rights the second approach which I outlined at para 16 as to the intensity of review is generally to be followed, leaving aside incorporation of the European Convention; but that approach and the basic Wednesbury rule are by no means hermetically sealed one from the other. There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. It is in the nature of the human condition that cases where, objectively, the individual is most gravely affected will be those where what we have come to call his fundamental rights are or are said to be put in jeopardy." 34. Mr Mullins drew my attention to the development of these considerations by Lord Steyn in R (Daly) v Secretary of State for Home Department  2 WLR 1666, at page 1634 onwards. At page 1635, letter C in paragraph 27, Lord Steyn said: "The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights." And at page 1636, paragraph 28: "The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has to be a shifts to merits review. On the contrary, as Professor Jowell  PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood  1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving Convention rights. In law context is everything." 35. Miss Grey asked me to consider Samaroo and Sezek v Secretary of State Home Department  INLR 55. Dyson LJ propounded a two stage test. At page 64, paragraph 19 he said: " ... in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights? Daly is a good example of this ... The essential purpose of this stage of the enquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's right under the Convention. That inquiry must be undertaken by the decision-maker in the first place." At paragraph 20: "At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons? ... The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo's rights under Art 8(1)." Dyson LJ took the view that the Secretary of State was involved in a balancing exercise between, on the one hand, the effect of an expulsion order upon a citizen enjoying Article 8 rights and, on the other, the need to adopt and enforce a policy relating to convicted criminals. At paragraph 24 he continued: "In my judgment, the fair balance test cannot be brushed aside so easily. The court has clearly said that the issue for it is to determine whether the deportation struck a fair balance between the relevant interests. That is what proportionality requires. In my view, the margin of appreciation does not affect the nature of the test to be applied or the question to be asked. It does, however, affect the assessment by the European Court of Human Rights of the answer that has been given by the Contracting States to the question. Provided that the court is satisfied that the right question has been asked by the Contracting State, it will allow for a margin of appreciation when deciding whether to decide that the wrong answer has been given. "25. I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention right, the task for the decision maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention rights on the other." At paragraph 28: "Fair balance involves comparing the weight to be given to the wider interests of the community with the weight to be given to an individual's Convention rights. Some rights are regarded as of especial importance and should for that reason be accorded particular weight. Broadly speaking, the more serious the interference with a fundamental right and the graver its effects, the greater the justification that will be required for the interference." Dyson LJ, at paragraph 35, adopted the expression of the "balance of factors", identified by the editors of "Human Rights Law and Practice" , Lord Lester of Herne Hill QC and David Pannick QC: "They identify the following factors: (a) the nature of the Convention right: is the right absolute or (as in the case of Art 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision maker in the former case than the latter. (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy making, nor should it be because it is not democratically elected or accountable. (c) The extent to which the court has special expertise, for example in relation to criminal matters. (d) Where the rights claimed are of especial importance, a 'high degree of constitutional protection' will be appropriate." 36. Finally, in Dyson LJ's judgment was, at paragraph 39, a reference to the application of policy by the Secretary of State: "In my judgment, it is not incumbent on the Secretary of State to prove that the withholding of a deportation order in any particular case would seriously undermine his policy of deterring crime and disorder. That would be to ask the impossible. Proof is not required. The subject matter is such that proof is usually impossible. What is required is that the Secretary of State justify a derogation from a Convention right and that the justification be 'convincingly established': Barthold v Germany (1985) 7 EHRR 383, 403. In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision maker to the various relevant factors." It is this passage which, it seems to me, encapsulates the task which I have to fulfil, namely: reviewing the Secretary of State's exercise of striking a fair balance between an individual's right to respect for family life and the enforcement of a firm but fair statutory immigration policy. 37. Applying these principles, it is Mr Mullins' submission that, having accepted: (1) Renols Kabashi enjoyed a family life in the United Kingdom with Mr and Mrs Duka; and (2) Renols Kabashi should not, for other reasons, be removed from the United Kingdom, the Secretary of State must consider with special care the balance between the interests of the community in enforcing immigration policy on the one hand, and the degree of interference with Mr Kabashi's Article 8 rights on the other. In considering the interests of the community in the enforcement of immigration policy, the Secretary of State was required to consider countervailing interests of the community in receiving the benefit of Mrs Duka's talents as a carer, and of her willingness to support Mr Kabashi in this country without recourse to public funds. He submits that, at the first stage of Dyson LJ's test, the Secretary of State could conveniently and fairly have taken a step which interfered less with Mr Kabashi's Article 8 rights; that is to grant leave to remain for the same limited period as allowed in Mr Kabashi's case. 38. Miss Grey responds that granting even limited leave to remain does not amount to the pursuit of the legitimate aim. To paraphrase, it would be naive to think that granting a period of leave would have the effect of demonstrating a firm but fair immigration policy. It would, on the contrary, enable the applicants further to entrench themselves in order to defeat that policy. 39. Secondly, submits Mr Mullins, the Secretary of State failed at all to consider the contribution made by Mrs Duka to the support and welfare of her brother, nor to the wider interests of the community by providing foster care for unaccompanied minors, one of whom had leave to remain until February 2006. Miss Grey responds that all these are matters which the Secretary of State habitually considers when deciding whether compassionate considerations should prevail. His decision letters, again I paraphrase, should not be treated as a statute. He did consider the contents of the solicitor's letter of 24 April 2002 and dealt with it in his reply of the same day. Furthermore, the original ground, paragraph 17, in which this point was taken was deleted by amendment and not renewed. 40. Thirdly, the Secretary of State, submits Mr Mullins, did not give weight to the fact that Mrs Duka possessed no entitlement to return to the United Kingdom as a dependent relative under rule 317 of the Immigration Rules (HC395); see Mahmood v Secretary of State for Home Department  1 WLR 840. Miss Grey responds that, while Mahmood involved separation of a husband from his wife and children, this case involved the separation of adult siblings. The Secretary of State's position is encapsulated in paragraphs 10 to 14 of the witness statement of Mr Dapp, a summary of which I have earlier given and which I need not now repeat. 41. I believe I am being asked to consider two essential issues: (1) whether the Secretary of State acted unlawfully in failing to consider a fresh claim from Mrs Duka, based on the Article 8 right to family life; and (2) whether Mr Kabashi's interest in that decision required the Secretary of State to be consistent with the adjudicator's decision in his case. Upon the first issue, it is my judgment that the Secretary of State was entitled to act as he did. The only claim to remain in the United Kingdom was one based on Article 8. Mr Mullins invites me to conclude that it was not a claim which reasonably could have been made during the hearing of Mr Duka's appeal in February 2001, because, by that stage, Mr Kabashi had only been living with his sister for three months and his status was unknown. That is not an invitation I am able to accept. If it were right, the permutations leading to justifiable non-disclosure would be endless. In fact, I find it extraordinary that Mrs Duka did not reveal to the adjudicator the fact that her 17-year old brother was living with her and claiming asylum. 42. Nevertheless, as did the Secretary of State, I have considered the claim on its merits and have attempted to engage in a consideration of the balancing exercise, which the authorities reveal I should. The adjudicator did not find it would be disproportionate to interfere with Renols' right to the same family life. She made no explicit finding in this respect. If, however, she had concluded that removal would have involved disproportionate interference with family life, she would surely have said so. This was, in fact, a relationship between adults, in respect of whom there was, before the adjudicator and before the Secretary of State, virtually no evidence of dependence in the Pathan sense. While removal would indeed interfere with family life, there was no reason, in due course, why Renols could not visit or join them. In forming a view of whether it would be disproportionate to interfere, the Secretary of State did take account of the degree to which Mrs Duka was integrating into and contributing to the community. In striking the balance, he was entitled to consider the extent to which this step by step attempt to gain leave was undermining his statutory immigration policy. It is unsurprising to hear Miss Grey describing the reaction on her side to the attempt to introduce fresh medical evidence as vexation. 43. As to the second issue, having regard to the adjudicator's reason for allowing Renols' appeal, the Secretary of State was entitled to reach the conclusion that there would be no inconsistency between the two decisions; that is to say his decision in respect of Mr and Mrs Duka, and the adjudicator's decision in respect of Renols. Just as removal amounted to an interference with Mr and Mrs Duka's right to family life, that interference was proportionate, given the age of the family and the limited evidence of dependency. Renols' leave to remain on medical grounds expires in September 2003. There was no evidence before the Secretary of State that the stability of Renols' mental condition depended upon the continued presence and support of Mr and Mrs Duka. I do not consider, therefore, that the material placed before the Secretary of State rendered his decision either irrational or disproportionate. 44. Notwithstanding Mrs Duka's impressive attempts to make a life in this country, I am afraid the application has to be dismissed. However, I repeat that I have made no decision whether a fresh claim arises from the recently commissioned medical report, nor whether a section 65 appeal may arise from a decision to remove. MISS GREY: My Lord, in those circumstances, firstly, may I formally ask for an order dismissing the application. That just leaves the matter of costs. The claimants, I understand, are legally-aided. I would ask for the usual order; that is the claimants to pay the Secretary of State's costs but not to be enforced without leave of court. MR JUSTICE PITCHFORD: Mr Mullins? MR MULLINS: My Lord, it is entirely right. I would ask for a detailed assessment of the claimants' costs. My Lord, I also ask for leave to appeal. MR JUSTICE PITCHFORD: First of all, there will be an order dismissing the claim. Secondly, there will be an order for costs to be paid by the claimants, not to be enforced without leave of the court. There will be a detailed assessment of the claimants' costs. No, I shall not grant you leave, I am afraid, Mr Mullins. Essentially, I have performed what I consider to be a balancing exercise. To that extent it is a weighing of factual issues. MR MULLINS: My Lord, I am grateful. MR JUSTICE PITCHFORD: Thank you both very much.
This should be grounds for very carefully evaluating official government statements on the Fort Dix plot because it reflects very poorly on the aspirations and agenda of the Balkan's Muslim population.
Please note that in the below noted PR effort, that once in the United States, Kosovo's Mufti Tenrava immediately headed to the Council on Islamic Relations [CAIR, the Saudi funded Hamas front group] for support.