ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Southern
Upper Tribunal Judge Coker
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
LORD JUSTICE UNDERHILL
| JOHANNA CAROOPEN
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Christopher Staker (instructed by the Treasury Solicitor) for the Respondent in Caroopen
Parminder Saini (instructed by Greenland Lawyers LLP) for the Appellant in Myrie
Julie Anderson (instructed by the Treasury Solicitor) for the Respondent in Myrie
Hearing dates: 20 & 21 July 2016
Written submissions: 25 & 29 July 2016
Crown Copyright ©
Lord Justice Underhill:
THE RELEVANT STATUTORY PROVISIONS
"The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant: …"
There follow a number of sub-paragraphs setting out conditions which must be met by the applicant. I can ignore (i) and (ii), which are concerned with suitability. Sub-paragraphs (iii)-(vi) required, at the time relevant for our purposes, that the applicant:
"(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
(With effect from 1 December 2013 what had previously been the entirety of paragraph 276ADE became sub-paragraph (1) and a new provision was introduced as sub-paragraph (2); that change is irrelevant for our purposes but explains the inconsistency with which these provisions are referred to in the decisions.)
THE FACTS AND PROCEDURAL HISTORIES
"In support of your application you have raised the fact that at the date of your application your children are aged 9 and 4 and Jenna Caroopen has been living in the United Kingdom for 8 years and Kaylan Caroopen has been living in the United Kingdom all his life. This has been carefully considered. However, you would be returning to Mauritius with your children and would be able to support them whilst they became used to living there and enjoying their full rights as citizens of Mauritius. Your children may be currently enrolled in education in the United Kingdom but it is clear from the objective information available that Mauritius has a functioning education system which your children would be able to enter. You have not provided any evidence which indicates that you would be unable to maintain your children in Mauritius, or that you would be unable to provide for their safety and welfare.
You and your children would return to Mauritius as a family unit and continue to enjoy your family life together. Whilst this may involve a degree of disruption to your private life, this is considered to be proportionate to the legitimate aim of maintaining effective immigration control and is in accordance with our section 55 duties. It has been decided that a grant of leave outside the rules is not appropriate. Your application for leave to remain in the United Kingdom is therefore refused."
In the case of Jenna the letter is confined to demonstrating that her case does not fall within the terms of Appendix FM: there is no reference to paragraph 276ADE or to her private life more generally.
"Your daughter has lived continuously in the UK for at least 8 years and it would be reasonable to expect her to leave the UK. It is considered that she would be able to adapt to life in Mauritius because she will be returning to her home country with her parents and sibling who will assist her in adapting to life in Mauritius. Therefore the Secretary of State is not satisfied that she can meet the requirements of Rule 276ADE (1) (iv).
We have taken into consideration that your daughter has lived continuously in the UK for 8 years. However, it is considered that she would be able to adapt to life in Mauritius because she will be with her mother, father and sibling who will assist her in adapting to life in her home country. Her mother and father will be able to support her to enjoy her full rights as a citizen.
Therefore, it is considered reasonable for your daughter to return to Mauritius as a family unit and continue to enjoy her family life overseas. Whilst this may involve initial disruption to her life it is considered that it is proportionate in order to meet the legitimate aims of the state."
"Alternatively, if this was a valid application by Jenna, while it is accepted that there was no express consideration of it, nevertheless it is plain that the Secretary of State considered that it would be reasonable for Jenna to leave the United Kingdom such that Jenna's application under paragraph 276 ADE (iv) would have inevitably failed. A remedy in these circumstances would therefore be inappropriate. Likewise, a remedy is also inappropriate given the fact that the Secretary of State has issued a further decision dated 18 June 2014 which expressly considered paragraph 276ADE, which is annexed to these grounds."
"The family life that you claim to have with relatives in the United Kingdom does not constitute family life as set out in Appendix FM of the Immigration Rules. Therefore your claim has been considered on the basis of your private life in accordance with paragraph 276ADE of the Immigration Rules."
The decision then goes on to consider Ms Myrie's private life claim in accordance with paragraph 276ADE. It goes through heads (ii)-(iv), demonstrating why Ms Myrie does not qualify under them. I need only set out what is said about (vi), namely:
"Having spent 31 years in your home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (vi)."
There is a concluding paragraph which reads as follows:
"It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the United Kingdom is therefore refused."
"The Claimant contends that the Defendant failed to consider in any details the particular circumstances of her application in accordance with the provision of Article 8 of the ECHR. The Claimant provided the Defendant with evidence of her extensive family life in the UK and shown [sic] that she had established a right to private life in accordance with Article 8 of the ECHR."
Other points are taken but I need not summarise them here. On 28 January 2014 permission to apply for judicial review was refused on the papers by UTJ Allen. However, at a renewal hearing on 26 March, at which Ms Myrie was represented by Mr Saini, Jeremy Baker J and UTJ Storey gave permission. This was primarily on the basis that it was arguable that the Secretary of State had not addressed the family life claim, although permission was also given to her to pursue a point based on whether the pre-July 2012 rules applied.
(1) "Transitional arrangements". This section refers in summary terms to the changes made to the Immigration Rules in July 2012 and quotes a passage from the Explanatory Memorandum which accompanied the relevant Statement of Changes setting out the approach taken as a matter of public policy towards article 8 in immigration cases.
(2) "Family life". This very slightly amplifies what was said about the Appellant's family life claim in the original decision letter, as follows:
"The family life that your client claims to have with relatives in the United Kingdom does not constitute family life as set out in Appendix FM of the Immigration Rules. Therefore your client's claim has been considered on the basis of her private life in accordance with paragraph 276ADE (1) of the Immigration Rules.
Consideration has been given to your client's claim that her removal would breach her right to respect for private and family life under Article 8 of the European Convention on Human Rights in that your client enjoys her Private Life in the United Kingdom.
Your client's application to remain in the United Kingdom has been determined under Rule 276ADE (1) of the Immigration Rules."
(3) "Private life". This sets out the terms of paragraph 276ADE (iii)-(vi) and why those requirements are not satisfied in the Appellant's case. As regards (vi), it says:
"Having spent 31 years in her home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that your client has been in the UK she has lost ties to her home country and therefore the Secretary of State is not satisfied that your client can meet the requirements of Rule 276ADE (1) (vi)."
(4) "Leave Outside the Rules". Following various introductory observations about leave to remain outside the Rules, the letter says:
"In support of your client's claim she has raised the fact that she lives with her sister, nieces and nephews in the UK. This has been carefully considered. However, this is not a basis alone to remain in the UK. Your client can return to Jamaica and maintain contact with her family in the UK by telephone, letters and skype. Your client may have established a special bond with her nieces and nephews whilst living in the UK, however this has been continued while she had no legal status to remain in the UK. Your client's sister, nieces and nephews can visit your client in Jamaica if they so wish."
This passage is evidently intended to address the principal point on which the UT had given permission. The selfsame paragraph then goes on to set out why Ms Myrie would have no real difficulty re-establishing herself in Jamaica if she were returned; but I need not set this passage out since it has no bearing on the issues in this appeal.
The letter was not sent to Ms Myrie or her solicitors at this point, though it was evidently intended to be deployed in due course as part of the Secretary of State's defence. For the reasons given at para. 15 above, I regard this as bad practice.
(1) "Article 8 Case Law". This section is identical to the section in the first supplementary letter headed "Transitional Arrangements". Despite the title, it does not refer to any case-law.
(2) "Decision under Private Life". This is identical to the "Private life" section in the first supplementary letter.
(3) "Section 55 of the Borders, Citizenship and Immigration Act 2009". This section starts with a passage from an unidentified document explaining how the Secretary of State approaches her duty to have regard to the best interests of a child pursuant to section 55 of the 2009 Act. It then reads:
"In support of your application you have raised the fact that you live with your sister and her children. You state that you have a close family life with your nieces and nephews and you share a close bond with them. You have stated that they are all British Citizens. This has been carefully considered. However although you have close family ties with your nieces and nephews it is acknowledged that they are not your own children. The decision to refuse your application will not require an uprooting or destabilising traumatic event for the children themselves. Whilst acknowledging the fact that the children will be upset by your return to Jamaica this will not in itself prove fatal to a close family relationship carrying on in a different form. You and they can carry on communicating on a regular basis by all the current forms of communication. You can telephone, Skype, twitter and facebook them at any time and you can also keep in touch with them, with family vacations, when they are on their school holidays. Most children have relationships with aunts and uncles with whom they do not have daily contact. It is not unusual particularly in the Jamaican Diaspora, to have aunts and uncles in a foreign country.
Having considered the best interests of the children, the Secretary of State for the Home Department notes that the children can stay in the United Kingdom with their mother. You are not their mother even though it may be that they have a close bond with you. However, for the above reasons, the Secretary of State for the Home Department is not convinced that it would be disproportionate to remove you to Jamaica having regard to the individual circumstances.
Section 55 of the Borders, Citizenship and Immigration Act 2009 has been fully considered at both the first consideration of your application and after this further consideration for the purposes of this supplemental letter. Whilst your removal may involve a degree of disruption to yours and their private lives, this is considered to be proportionate to the legitimate aim of maintaining effective immigration control and is in accordance with our section 55 duties. It has been decided that a grant of leave outside the rules is not appropriate."
(4) "Exceptional Circumstances". Although there are some differences in the wording and layout, this is substantially identical to the section headed "Leave outside the Rules" in the first supplementary letter.
(5) "Consideration of Para. EX.1(a)". The relevance of this section is not clear. It appears to consider whether "the difficulties which you would face in continuing your private life outside the United Kingdom" would constitute "insurmountable obstacles". It concludes that they would not, although in that connection there is reference also to Ms Myrie being able to continue her "family relationships" through modern methods of communication and by members of her family visiting her in Jamaica. But it is not clear what any of this has to do with paragraph EX.1 (a), which is a paragraph within Appendix FM relating to cases of parental relationships, and which contains no reference to "insurmountable obstacles".
It seems that what prompted this second supplementary letter was a concern that neither of the previous letters had referred to section 55 of the 2009 Act or to paragraph EX.1 (a) of Appendix FM (though, as I have said, in the case of the latter it remains unclear to me what its relevance was thought to be). Again, the letter was not, as it should have been, sent to Ms Myrie or her solicitors at this point.
BOTH APPEALS: THE USE OF SUPPLEMENTARY LETTERS
"14. The principles set out in Ermakov have no application in the present case. They were directed towards the lawfulness of an earlier statutory decision. Such a decision cannot be remedied by what is said later. In this case I have already made a finding that the decision of March 2013 is unlawful. It was unlawful and remains unlawful and will always be unlawful. Nothing that is said in the decision of 10 September 2014 alters the lawfulness of the earlier decision. Indeed, the very fact that it was thought necessary to provide another letter strongly suggests that the earlier decision was deficient and required the consideration of additional material.
15. The relevance of the letter of 10 September 2014 is focused upon the remedy that the Tribunal affords when an earlier decision is found to be unlawful but is followed by a later decision. If the later decision is a lawful consideration of all of the factors that the decision maker was required to consider but failed to consider in the earlier decision and omits consideration of all those factors that the decision maker was required to omit, the later decision will be a lawful one. This does not alter the status of the earlier decision. As I said in the course of argument, if judicial review proceedings are commenced alleging that the relevant decision is unlawful, those proceedings will have been justified and their commencement will remain justified at least until a lawful decision is made. Hence, the applicant is protected insofar as the costs are concerned until at least the letter of 10 September 2014 was received. Thereafter, an applicant is entitled to a little time in which to consider the ramifications of the later letter and to consider whether the judicial review proceedings should continue, to include, where appropriate, a suitable provision for the payment of costs. Thus protected, there is no prejudice suffered by the applicant from the Tribunal considering the subsequent letter providing that, in doing so, the applicant is afforded sufficient time to consider it and it is not unfair for the Tribunal to express its views about its lawfulness.
16. This is a necessary corollary of its determination that the earlier decision was unlawful. If the earlier decision is quashed, it would normally be appropriate to direct that the respondent makes a fresh and lawful decision. If, however, a fresh and lawful decision has already been made, there is no point in requiring a further decision which would, of necessity, replicate what has already been decided. Accordingly, it is necessary to look at the decision of 10 September 2014 in order to determine the appropriate remedy. If the decision of 10 September 2014 merely replicates the error of the original decision, the respondent's position is advanced no farther and the appropriate remedy is to direct that the respondent must make a fresh and lawful decision."
Applying that approach, UTJ Jordan made an order quashing the original decision in that case, but he declined to grant any further relief on the basis that the supplementary letter constituted a distinct decision which was itself unimpeachable. He said, at para. 26 of his judgment:
"Having quashed the order [this must be a slip for "decision"] of 9 March 2013, I make no order for any further relief. Whilst, technically, this permits the applicant a further challenge to the decision of 10 September 2014, the practical consequences of this decision are that no such challenge has a viable prospect of success."
He awarded the applicant her costs up to the date of the supplementary letter.
THE REASONING OF THE UPPER TRIBUNAL
"It can be seen from that decision [sc. the initial decision relating to Ms Caroopen] that even if issues such as length of residence and questions of the best interests of the children were not engaged with in the decision letters relating to the children, they had plainly been addressed as part of the overall decision making process".
It would seem to follow that the challenge was rejected without reference to the supplementary letter at all. However, the Judge went on at paras. 15 and 16 to record a number of submissions from Mr Hays, among them that "the supplementary decision … is … a complete answer to the claim", and at para. 17 he says that he accepts those submissions.
"Considerations of pragmatism in immigration proceedings require letters issued subsequent to either the issue of an application for permission or the grant of permission to be admitted into consideration. To refuse to do so would result in unnecessarily repetitive, proceedings that would result in inordinate delay, lack of certainty for an applicant and significantly increased costs to no avail."
"The decision did not engage with the specific matters put forward by the applicant which did not fall into the generality of claims made of family life or private life which involves the interrelationship between the applicant and her sister and her sister's children. There were letters from the children which indicated a close bond and it behoved the respondent to at least engage with the scenario put forward."
"28. The applicant has not identified any matters that have not now been considered by the respondent on the basis of the evidence that was before her and simply asserts that the later two decisions remain unlawful. Although the applicant asserts that they have not been admitted into evidence, they plainly exist and there must be consideration whether they are relevant as to remedy given the discretionary nature of judicial review.
29. The later two decisions consider and engage with the evidence and information that had been placed before the respondent. They do not 'cure' the first decision of its unlawfulness but plainly address all the matters that had previously not been addressed by the respondent.
30. Judicial review is a discretionary remedy. It is plain from the later two letters that the applicant's case has now been considered and the representations/evidence she submitted have been considered. In the light of my findings at  and  above this claim must fail."
"The applicant has, by the production of the two later letters achieved full consideration of application, which is no more than she could have expected had those two later letters not been produced."
Although she does not say so in terms, the three weeks evidently represented her estimate of a reasonable period for Ms Myrie to consider whether her challenge should be continued in the light of the supplementary letters which she had received for the first time with the Defence.
THE APPELLANTS' CHALLENGE
"… [T]he requirements of the rule of law mean that 'the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow'".
Mr Saini contended that it was not, absent exceptional circumstances which were not present here, a proper exercise of judicial discretion to rely on a supplementary letter so as refuse to quash a defective original decision in the immigration and asylum field. He advanced various supporting arguments, which I will identify so far as necessary in my discussion below.
DISCUSSION AND CONCLUSION ON THE POINT OF PRINCIPLE
"Sometimes the Secretary of State will seek permission to adduce evidence to the effect that he has considered the evidence filed by the applicant and that he has made a new, second, decision in the light of that evidence. Where that new decision is in favour of the applicant the case is usually disposed of by consent. Where however the second decision is to the same effect as the first decision and the applicant challenges the legality of the second decision the question then arises as to what is the proper approach of the court. Further litigation on the first decision will generally be pointless. In general it will be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings. The applicant may apply for permission to amend his application for permission so as to substitute the new decision and generally the court will grant such an application."
It will be seen that what Schiemann LJ was considering in that passage was fresh decisions prompted by new evidence – in other words, what I have called a "new material" case. In such a case the Secretary of State accepts (though she may not always do so explicitly) that, while the original decision may have been right when made, debate about its validity is "pointless" because it has been superseded by the need to make a fresh decision on the basis of the new material. The formal focus thus changes to the new decision (whence the need for amendment). By contrast, in a case of the kind with which we are concerned the Secretary of State continues to maintain the lawfulness of the original decision (with or without the assistance of further reasons), and the relevance of the further decision is, as I have said, only to the issue of relief. Turgut remains of some background relevance in as much as it shows a general willingness on the part of this Court to allow procedural flexibility, but the detailed analysis is different.
"9. It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications, including payment of fees, for the purposes of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application. Such a process has occurred in cases where permission has been granted or a renewal hearing is awaited, with the upshot being a series of letters which may or may not constitute the decision letter, further representations often addressed to the court rather than the Secretary of State by way of unamended grounds of challenge, amended grounds of challenge which are expressed in skeleton arguments without formal amendment and real difficulty for the court in knowing what is the focus of the challenge, what are the grounds that are relied on and what material can lawfully be admitted in order to show that there was an error of law. And due fees are left unpaid.
10. It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation.
11. This appears to be the consequence of a misunderstanding of what the Court of Appeal said in Turgut. In Turgut the court was concerned to avoid an unduly procedurally complex process where, at the time the court was dealing with a particular decision, there had been a further decision by the Secretary of State upon which the Secretary of State was relying instead and against which the claimant was seeking to raise the same or additional points of challenge. Where, at the particular point where the court is considering a case, there has been a further decision on which the Secretary of State relies and the claimant has already formulated his reasons as to why that is unlawful, it may be appropriate for the court to deal with the fresh decision requiring a formal amendment, with undertakings to pay appropriate fees if necessary, and to consider whether during the course of that amendment process the claimant's challenge to the new decision does, in fact, show an arguable error of law in it. That is merely sensible use of court time. That is what the Court of Appeal in Turgut was suggesting.
12. ... Turgut was not and did not purport to be authority for a general proposition that where proceedings challenging a decision of the Secretary of State on a purported fresh claim had begun, those proceedings are to remain on foot or stayed until such time as any further challenges to further decisions which may be issued at future dates have been finally concluded. That, for the reasons which I have given, would be a recipe for muddle and has already contributed to muddled litigation over fresh claims."
He went on to cite in support of that approach the decision of this Court in R v Secretary of State for the Home Department, ex p Alabi (unreported, 5.2.97).
APPLICATION TO THESE CASES
CAROOPEN: THE NATURE OF THE JUDICIAL REVIEW EXERCISE
THE CORRECT APPROACH TO JUDICIAL REVIEW IN AN ARTICLE 8 CASE
"… the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it."
"… [I]t is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith  QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time (Wilson v First County Trust Ltd (No 2)  UKHL 40,  1 AC 816, paras 62-67). Proportionality must be judged objectively, by the court (Williamson, above, para 51)."
In her opinion in Miss Behavin' Lady Hale said, at para. 31 (p. 1430H):
"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
"It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State's decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right."
Lord Hoffmann then developed that point by reference to the decisions in the Denbigh High School and Miss Behavin' cases. He went on, at para. 14 (p. 33D):
"The other side of the coin is that, when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. That was the basis of the decision of the House of Lords in Huang v Secretary of State for the Home Department  2 AC 167, in which the question was whether the removal of a migrant would infringe his right to respect for family life under article 8."
He then quoted the passage from Huang which I have set out above.
"Of course, where delicate and difficult judgments are involved in deciding whether or not she has done so, this Court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached … ."
She referred to Denbigh High School and Miss Behavin'.
"does not … entitle the courts simply to substitute their own assessment for that of the decision-maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs."
He continues, later in the same paragraph, to say (p. 790 A-B) that
"the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend upon the context, and will in part reflect national traditions and institutional culture."
There were passages to the same effect in the judgment of the majority.
"where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. That was made clear by all members of the appellate committee in Belfast City Council v Miss Behavin' Ltd  1 WLR 1420, paras 13, 24, 31, 44 and 97, applying R (SB) v Governors of Denbigh High School  1 AC 100".
At para. 68 (p. 985 A-C) he said:
"Accordingly, even where … the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality."
Lady Hale did not deal with the question in detail, but she said at para. 98 of her judgment (p. 992H), having referred to Quila:
"I have no doubt that it is for the court to make the proportionality assessment; but I have equally no doubt that on some parts of that assessment the court should be very slow indeed to disagree with the assessment made by the Government."
"As to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights … . For that purpose, in an article 8 case such as the present, she has to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context: … . But as to the assessment of proportionality, the decision of the Supreme Court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department  UKSC 60,  AC 945 shows that the court is obliged to form its own view, whilst giving appropriate weight (which will depend on context) to any balancing exercise carried out by the primary decision-maker."
THE JUDGE'S APPROACH
"19. As I have said, Jenna did have to overcome the reasonableness test set out in Rule 276ADE (iv), notwithstanding the fact that she had established more than seven years' continuous residence in the United Kingdom which, as Ms Qureshi correctly points out, is a period of significance which demands careful consideration. It is patently clear that the respondent had that in mind throughout these assessments, which were clearly carried out both individually and in respect of the family unit as a whole.
20. The assessment of the position of Jenna had to be informed by her membership of the family unit because that was relevant, indeed highly relevant, to the question of whether it was reasonable to expect her to leave the United Kingdom. In my judgement the respondent was plainly entitled to conclude that it would not be unreasonable to expect Jenna to leave the United Kingdom and return to Mauritius with her family. The respondent went on to consider the circumstances of the family unit as a whole, and that given the construction of private life while unlawfully present because of a failure to return to Mauritius when leave expired, the continuing family ties with Mauritius and the proportionality assessment carried out in respect of a family none of whose members qualified for leave under the Rules, this meant that this was an application that fell to be refused. That was clearly a rational decision open to the respondent which does not disclose legal error on the basis of a failure to engage with the special status potentially attributable to the oldest child on the basis of the period during which she had been living in this country and attending school and becoming engaged with the community because those were all matters taken into account by the respondent.
21. There can be no doubt from the material now presented on the applicant's behalf that this is a diligent industrious and well-motivated family that works hard to play its full part in the local community. They involve themselves in charitable work and the oldest child in particular is doing well at school. But this application discloses no basis upon which to disturb the decision under challenge. For those reasons I find it impossible to avoid the conclusion that the respondent was entitled to make the decision that she did and there is no basis upon which to interfere with it. For those reasons the application for judicial review is refused."
Lord Justice Beatson:
Note 1 The Secretary of State refers to such letters indiscriminately as “supplementary” or “supplemental”. I will use the former term. They are also sometimes called “decision letters” and sometimes just “letters”. I will generally use the latter description, because, as appears below, not every such letter will incorporate a fresh decision. [Back] Note 2 The copy letter in our bundle is dated 15 July 2014, but in the Grounds of Defence, to which I refer below, it is referred to as being dated 18 June 2014. This oddity was not explained to us and the explanation does not matter for our purposes. No doubt it is the result of some administrative slip or other, but it is characteristic of a general sloppiness about the Home Office’s correspondence and submissions in both cases. [Back] Note 6 Including by Stanley Burnton J himself: see R (Ashworth Mental Hospital) v Mental Health Review Tribunal  EWHC (Admin) 90 and R (B) v London Borough of Merton  EWHC 1689 (Admin),  4 All ER 280. It should be noted that in the Ashworth Hospital case he qualified what he had said in Nash in one respect – see para. 56. [Back] Note 7 The requirement will not typically take the form of a mandatory order, because the Court usually takes the view that an appropriate declaration will suffice; but the obligation is there nonetheless – see Ermakov at p. 315e-f.
[Back] Note 9 Likewise, the standard-form injunction to read the supplementary letter with the original letter might tend to suggest that its purpose is to supply further reasons rather than to constitute a fresh decision. However, that cannot be decisive; and in any event despite that injunction the supplementary letter often starts again from scratch and can be understood on its own.
[Back] Note 11 I should note, in deference to a point made by Mr Saini, that at one stage in her judgment (para. 16) Judge Coker, while purporting to agree with Judge Jordan’s approach inKerr, somewhat mischaracterises it, suggesting that the essential reason why Ermakov did not apply was that it was concerned with a case where there was an express statutory duty to give reasons at the same time as the decision. Although that was indeed the case in Ermakov and was a particular obstacle to the admission of subsequent reasons, the reluctance of the courts to admit such reasons is not peculiar to such cases. The reason for distinguishing Ermakov in fresh decision cases is that the supplementary decision is not being deployed in order to cure the original decision. [Back] Note 12 UTJ Peter Lane’s analysis in Khairdin draws attention to a possible tension between the Nasseri/Quila line of authorities and those relating to decisions of the Home Secretary under paragraph 353 of the Immigration Rules. We need not consider that question here, but I should note for the record that he does not cite the most recent and authoritative analysis of the case-law on paragraph 353, which is that of Maurice Kay LJ in R (MN (Tanzania)) v Secretary of State for the Home Department  EWCA Civ 193,  1 WLR 3200. [Back] Note 13 See, for example, two recent articles by Professor Paul Craig – The Nature of Reasonableness Review (2013) CLP 131, and Judicial Review and Anxious Scrutiny: Foundations, Evolution and Application  PL 60; the judgment of Beatson LJ in R (A) v Chief Constable of Kent Constabulary  EWCA Civ 1706, at paras. 69-92; the judgments of Lord Sumption and Lord Reed in Pham v Secretary of State for the Home Department  UKSC 19,  1 WLR 1591, (paras. 103-110 (pp. 1624-8) and 112-121 (pp. 1628-30)); and the judgment of Lord Carnwath in Youssef v Secretary of State for Foreign and Commonwealth Affairs  UKSC3,  2 WLR 509, at paras. 51-57 (pp. 529-531). [Back] Note 14 Mr Staker drew attention to the use of Wednesbury language in the recent decision of this Court in R (Agyarko) v Secretary of State for the Home Department  EWCA Civ 440,  1 WLR 390: see para. 26 in the judgment of Sales LJ. It may be debatable whether the language was in fact inappropriate in the particular context in which it was used, but the point does not seriously advance the argument since there appears to have been no discussion of how the test should be formulated. I would add that Agyarko is at present the subject of a pending appeal in the Supreme Court. [Back]
Note 1 The Secretary of State refers to such letters indiscriminately as “supplementary” or “supplemental”. I will use the former term. They are also sometimes called “decision letters” and sometimes just “letters”. I will generally use the latter description, because, as appears below, not every such letter will incorporate a fresh decision. [Back]
Note 2 The copy letter in our bundle is dated 15 July 2014, but in the Grounds of Defence, to which I refer below, it is referred to as being dated 18 June 2014. This oddity was not explained to us and the explanation does not matter for our purposes. No doubt it is the result of some administrative slip or other, but it is characteristic of a general sloppiness about the Home Office’s correspondence and submissions in both cases. [Back]
Note 6 Including by Stanley Burnton J himself: see R (Ashworth Mental Hospital) v Mental Health Review Tribunal  EWHC (Admin) 90 and R (B) v London Borough of Merton  EWHC 1689 (Admin),  4 All ER 280. It should be noted that in the Ashworth Hospital case he qualified what he had said in Nash in one respect – see para. 56. [Back]
Note 7 The requirement will not typically take the form of a mandatory order, because the Court usually takes the view that an appropriate declaration will suffice; but the obligation is there nonetheless – see Ermakov at p. 315e-f. [Back]
Note 9 Likewise, the standard-form injunction to read the supplementary letter with the original letter might tend to suggest that its purpose is to supply further reasons rather than to constitute a fresh decision. However, that cannot be decisive; and in any event despite that injunction the supplementary letter often starts again from scratch and can be understood on its own. [Back]
Note 11 I should note, in deference to a point made by Mr Saini, that at one stage in her judgment (para. 16) Judge Coker, while purporting to agree with Judge Jordan’s approach inKerr, somewhat mischaracterises it, suggesting that the essential reason why Ermakov did not apply was that it was concerned with a case where there was an express statutory duty to give reasons at the same time as the decision. Although that was indeed the case in Ermakov and was a particular obstacle to the admission of subsequent reasons, the reluctance of the courts to admit such reasons is not peculiar to such cases. The reason for distinguishing Ermakov in fresh decision cases is that the supplementary decision is not being deployed in order to cure the original decision. [Back]
Note 12 UTJ Peter Lane’s analysis in Khairdin draws attention to a possible tension between the Nasseri/Quila line of authorities and those relating to decisions of the Home Secretary under paragraph 353 of the Immigration Rules. We need not consider that question here, but I should note for the record that he does not cite the most recent and authoritative analysis of the case-law on paragraph 353, which is that of Maurice Kay LJ in R (MN (Tanzania)) v Secretary of State for the Home Department  EWCA Civ 193,  1 WLR 3200. [Back]
Note 13 See, for example, two recent articles by Professor Paul Craig – The Nature of Reasonableness Review (2013) CLP 131, and Judicial Review and Anxious Scrutiny: Foundations, Evolution and Application  PL 60; the judgment of Beatson LJ in R (A) v Chief Constable of Kent Constabulary  EWCA Civ 1706, at paras. 69-92; the judgments of Lord Sumption and Lord Reed in Pham v Secretary of State for the Home Department  UKSC 19,  1 WLR 1591, (paras. 103-110 (pp. 1624-8) and 112-121 (pp. 1628-30)); and the judgment of Lord Carnwath in Youssef v Secretary of State for Foreign and Commonwealth Affairs  UKSC3,  2 WLR 509, at paras. 51-57 (pp. 529-531). [Back]
Note 14 Mr Staker drew attention to the use of Wednesbury language in the recent decision of this Court in R (Agyarko) v Secretary of State for the Home Department  EWCA Civ 440,  1 WLR 390: see para. 26 in the judgment of Sales LJ. It may be debatable whether the language was in fact inappropriate in the particular context in which it was used, but the point does not seriously advance the argument since there appears to have been no discussion of how the test should be formulated. I would add that Agyarko is at present the subject of a pending appeal in the Supreme Court. [Back]