Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 159
P1444/11	OPINION OF LORD KINCLAVEN in the Petition of H L W Petitioner for Judicial Review of a decision of the Secretary of State for the Home Department dated 29 March 2011 refusing the petitioner leave to remain under the case resolution policy ______

Petitioner: Winter; Drummond Miller LLP

Respondent: McIlvride; Office of the Solicitor to the Advocate General

12 October 2012

Introduction

[1] This is a first hearing in a petition seeking judicial review of a decision of the Secretary of State for the Home Department ("SSHD") dated 29 March 2011 (No 6/1 of Process) which the petitioner avers refused the petitioner leave to remain under the case resolution policy.

[2] The respondent is the Advocate General on behalf of the Secretary of State for the Home Department. It is admitted that this court has jurisdiction. The pleadings were amended at the bar.

[3] Mr Winter, advocate, appeared for the petitioner. He sought reduction of the decision dated 29 March 2011. He argued that the respondent had acted unreasonably and had acted irrationally in refusing certain submissions made by the petitioner. He submitted, inter alia, that the respondent had failed to give adequate and comprehensible reasons for the decision under challenge. It was not essential that the decision be an "immigration decision" under statute. Adequate reasons were required for this particular decision and no such reasons had been given. The principle was essentially one of fairness. The petitioner was entitled to adequate reasons. The petition was not premature.

[4] Mr McIlvride, advocate appeared for the respondent. He invited me to refuse the orders sought by the petitioner. He submitted, inter alia, that the Secretary of State was under no obligation to provide reasons for the outcome of her review of the petitioner's case. This was a decision under the case resolution policy and not an "immigration decision" under statute. Reduction was not appropriate. There was a statutory remedy open to the petitioner in the event that it was decided to remove him from the UK. It was accepted that in relation to the question of giving reasons the principle was one of fairness. It was also accepted that if (contrary to the respondent's submissions) reasons were required then the reasons actually stated in the letter of 29 March 2011 were less than adequate. The petition was however premature.

[5] Having heard counsel, in my opinion, the petitioner's submissions are sufficiently well‑founded to result in decree of reduction.

[6] In the whole circumstances, and for the reasons outlined below, I shall sustain the petitioner's plea‑in‑law, repel the pleas‑in‑law for the respondent, and reduce the respondent's decision dated 29 March 2011.

The Background

[7] The petitioner is HLW. He resides in Glasgow.

[8] The petitioner avers that the respondent decided on 29 March 2011 to refuse the petitioner leave to remain under the case resolution policy. That averment is denied by the respondent under reference to Answer 6 - which is set out below in paragraph [32].

[9] It is, however, accepted by the respondent (in Answer 6) that the letter of 29 March 2011 was from the Secretary of State's Case Resolution Directorate ("CRD") and that it was "on behalf of the Secretary of State". The respondent's position is that "the petitioner has no entitlement to have the decision intimated in the Secretary of State's letter of 29 March 2011 reduced" - as outlined more fully below.

[10] On behalf of the petitioner, it was accepted that the decision under challenge was not an "immigration decision" under statute, but that it was submitted was not fatal to the remedy sought.

[11] The petitioner now seeks:

(i) reduction of the respondent's decision dated 29 March 2011 to refuse the petitioner's submissions;

(ii) the expense of the petition;

(iii) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case.

Productions

[12] The Productions for the petitioner were as follows:-

6/1 Letter dated 29 March 2011 (the decision letter under challenge);

6/2 Letter from the petitioner's agents dated 18 August 2010;

6/3 "Every child matters - change for children";

6/4 Letter from UKBA dated 22 March 2011;

6/5 Letter of representations with attachment dated 2 December 2010;

6/6 "Case Resolution - Priorities and Exceptional Circumstances" - respondent's guidelines;

6/7 "Article 8 of the European Convention on Human rights (ECHR) - August 2010" - respondent's guidelines; and

6/8 Immigration Law Practitioners Association (ILPA) information sheets relating to Legacy Cases.

[13] The Productions for the respondent consisted of:-

7/1 Form IS96 dated 8 May 2004;

7/2 From IS96 dated 9 July 2004;

7/3 From ISE343 dated 10 August 2004.

[14] It is worth noting (from No 6/2 of Process) that the petitioner's agents enclosed various documents with their letter to the UK Border Agency ("UKBA") dated 18 August 2010 and stated:

"We would be obliged if above documents could be considered and our client and his family be granted Indefinite Leave to Remain outside the immigration rules."

[15] In their letter dated 2 December 2010 (No 6/5 of Process) the petitioner's agents also enclosed marriage and birth certificates and asked that they be taken into consideration when considering their client's case.

[16] The letter under challenge (No 6/1 of Process) dated 29 March 2011 begins in the following terms:

"The Case Resolution Directorate (CRD) was established to deal with older unresolved asylum applications, such as yours, with the aim of resolving cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy.

Details of how we have been handling older cases can be found at: www.ukba.homeoffice.gov.uk/asylum/oldercase/

I am writing to inform you that your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay.

In all circumstances we prefer that those with no basis of stay in the United Kingdom leave voluntarily, but should you fail to do so, then your removal may be enforced. ..."

[17] I do not propose to rehearse the contents of the other documents produced upon. Parties are familiar with their terms.

Authorities

[18] The petitioner referred to the following authorities:-

1. Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, particularly at pages 347-348;

2. Bugdaycay v Secretary of State for the Home Department [1987] 1 AC 514, at page 531E-G;

3. TK (Immigration Rules-policy-Article 8) Jamaica [2007] UKAIT 00025 at paragraph 21;

4. AG (Eritrea) v Secretary of State for the Home Department [2008] 2 All ER 28 at paragraphs [28] and [37];

5. R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 17;

6. Huang v Secretary of State for the Home Department [2007] 2 AC 167;

7. EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159;

8. Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115;

9. ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at paragraph 33;

10. MK (Best Interests of child) India [2011] UKUT 00475 (IAC);

11. R (on the application of TS) v Secretary of State for the Home Department and Northamptonshire County Council [2011] Imm AR 164 at paragraph [24];

12. Dangol v Secretary of State for the Home Department 2011 SC 560 at paragraph [9];

13. Michael Absalom [2010] CSOH 109 at paragraphs 13 and 14; and

14. MacDonald's Immigration Law and Practice, 8th Edition, Volume 1, pages 990-995. 1467-1471 and 1477-1481.

[19] The respondent referred to:

1. MO Petitioner [2012] CSIH 20 particularly paragraphs [6], [15] and [16];

2. Ingle v Ingle's Tr. 1999 SLT 650 at page 654E-L;

3. Purdon v City of Glasgow Licensing Board 1989 SLT 201 at page 203L;

4. Nationality, Immigration and Asylum Act 2002, sections 82 and 84; and

5. Clyde and Edwards, Judicial Review, pages 531-534, paragraphs 18.52 to 18.56.

The Petitioner's Position

[20] In overview, the petitioner sought reduction of the decision dated 29 March 2011. He argued that the respondent had acted unreasonably and had acted irrationally in refusing certain submissions made by the petitioner. He submitted, inter alia, that the respondent had failed to give adequate and comprehensible reasons for the decision under challenge. It was not essential that the decision be an "immigration decision" under statute. Adequate reasons were required for this particular decision and no such reasons had been given. The principle was essentially one of fairness. The petitioner was entitled to adequate reasons.

[21] By way of background, the petitioner avers that he is a citizen of China. He entered the UK in or around May 2004. He claimed asylum. He was originally detained on entry but was released. He lost contact with the UK Border Agency. The petitioner thereafter stayed with a friend in London for about a week. He then moved to Aberdeen. He worked in a Chinese restaurant in Aberdeen for about a month. The petitioner then moved to Liverpool. He worked in a Chinese restaurant in Liverpool for about two months. The accommodation the petitioner was provided with by his employer became full and the petitioner was sent to Edinburgh. He worked in a Chinese restaurant for about a year in Edinburgh. The petitioner then moved to Manchester and worked in a Chinese restaurant in Manchester. He met his partner (now his wife) in or around July 2007. She claimed asylum also but lost contact with the UK Border Agency. Since then the petitioner has worked in Chinese restaurants. Throughout the time the petitioner was working he was paid well below the minimum wage and at most received £10 or £20 per week. He was provided with food and accommodation by his employer. The petitioner moved to Glasgow approximately in or around February 2009. The petitioner and his partner live together in Glasgow. The petitioner's partner gave birth to the petitioner's child on 17 March 2010. They are now supported under NASS, which is the benefit(s) available asylum seekers and failed asylum seekers. By letters dated 18 October 2010 (No 6/2 of Process) and 2 December 2010 (No 6/5 of Process) the petitioner's previous agents made an application under the Home Office legacy program/case resolution program based on the petitioner's length of residence in the United Kingdom and his relationship with his partner and his newly born child. The petitioner avers that by letter dated 29 March 2011 (No 6/1 of Process) the respondent refused leave to remain under the case resolution program.

[22] The petitioner sought judicial review on the following grounds.

[23] Firstly, the petitioner submitted that the respondent has failed to give adequate and comprehensible reasons for the decision of 29 March 2011 to refuse the petitioner's submissions (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348). The refusal letter leaves real and substantial doubt as to why the respondent has refused the petitioner. It is not known how the respondent has assessed the petitioner's case. Implicit in the petitioner's application is consideration of article 8 of the ECHR. The issue of whether a person falls within the spirit of the rationale of a policy is a matter which is capable of affecting the determination of whether, in all the circumstances, the decision, if implemented, would involve a disproportionate interference with Article 8 rights (TK (Immigration Rules - policy - Article 8) Jamaica [2007] UKAIT 00025). It is not known how the respondent has addressed the relevant questions in assessing Article 8 of the ECHR (Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 17 per Lord Bingham of Cornhill). It is not known whether the respondent had in mind the low standard for Article 8, ECHR to be engaged (AG (Eritrea) v SSHD [2007] EWCA Civ 801 at paragraphs 26-28 per Lord Justice Sedley). The respondent does not make clear whether the submissions and documents have been considered and if so what weight has been given to them. The respondent does not appear to have regard to the fact that the petitioner has developed closer social ties and established deeper roots than the petitioner could have shown earlier. The respondent appears to have erred by failing to recognise that the petitioner's· claim is strengthened (EB v SSHD [2008] UKHL 41 at para 14). The respondent appears to have failed to apply a structured approach to assessing proportionality. The respondent has failed to have proper and visible regard to relevant principles in making a structured decision and there has been a failure of reasoning by the respondent (AG (Eritrea) v SSHD [2007] EWCA Civ 801 at para 37 per Lord Justice Sedley). It is unclear whether the respondent has had regard in particular to the length of time the petitioner has remained in the UK, his relationship with his partner and child, and the extent to which the petitioner has integrated into the local community and if the respondent has had regard to those factors it is not known what the reasons are for rejecting these factors. It is unclear if the respondent has had regard to the fact that the petitioner would be separated from his partner and child if returned to China. The respondent has (at least) tacitly permitted the petitioner to remain in the United Kingdom. She has permitted 161,000 people to remain under the legacy/Case Resolution Program, all of whom like the petitioner were failed asylum seekers with no right to remain in the United Kingdom. A copy of the letter dated 22 March 2011 from Jackie Luetchford (of the Case Resolution Directorate) was produced, adopted and incorporated brevitatis causa (No 6/4 of Process - and see also No 6/8). It is unclear why the petitioner does therefore not qualify under the case resolution program. The respondent has therefore acted unreasonably et separatim acted irrationally by failing to supply adequate reasons for refusing the submissions.

[24] Secondly, the petitioner argued that, although no emphasis has been placed on the best interests of the child in terms of the submissions, it is nevertheless incumbent on the respondent to adhere to international obligations and ensure the best interests of the child are protected (see for an explanation on best interests of the child: ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 at paragraphs 23-26, 30-33, 36, 38-39,45; R (on the application of BN v Secretary of State for the Home Department [2011] EWHC 2367 (admin) at paragraphs 119-132; and MK (best interests of child) (India) [2011] UKUT 00475 (IAC). The respondent has not exercised anxious scrutiny by taking into account the best interests of the child in being separated from the petitioner or their own statutory guidance which an immigration judge would have regard to. An immigration judge would take into account the respondent's statutory guidance, namely Every Child Matters - Change for Children. The guidance states that it is the decision maker's duty to take account of the need to promote and safeguard the welfare of the children which extends to preventing impairment of their development including their physical, intellectual, emotional, social and behavioural development to ensure they are growing up consistent with the provision of safe and effective care and so as to enable them to have optimum life chances and to enter adulthood successfully. The respondent has not assessed whether it would be in the best interests of the child to return the petitioner to China. In considering the petitioner's article 8 rights the respondent has not considered the best interests of the child as a primary consideration. The respondent has not treated the best interests of the child as the first stage and as a distinct stage (see MK, supra at paragraph 19). This is the wrong approach. The respondent has failed to consider the best interests of the petitioner's child first in the assessment of article 8, ECHR. The respondent has failed to consider the best interests first and thereafter to consider whether there are any countervailing factors. This is the wrong approach and the respondent has failed to exercise anxious scrutiny (see paragraph 28 of ZH (Tanzania) v Secretary of State for the Home Department [2010] UKSC 4 per Baroness Hale of Richmond) .

[25] Thirdly, the petitioner refuted the suggestion that the petition was premature. During the hearing the respondent made submissions regarding the petitioner having a statutory right of appeal and the petition thus being premature. The petitioner responded to that submission in a written "Addendum to Oral Submissions for the Petitioner" - which has now been lodged in process and which I can refer to for its terms. Suffice it to say that the petitioner referred to sections 82, 84 and 92 of the Nationality, Immigration and Asylum Act 2002 and to various passages in McDonald's Immigration Law and Practice, Eighth Edition, Volume 1 (including paragraphs 18.12, 18.13, 18.24, and 12.177) in support of his submission. The petitioner is not guaranteed a statutory right of appeal. Even if the petitioner makes a new human rights claim under article 8, ECHR he will not know if the respondent will grant him a right of appeal which will only apply if the respondent issues an "immigration decision" or whether the respondent will refuse to treat the new claim as a fresh human rights claim under Rule 353, or will certify the claim. If the claim is certified or not treated as a fresh claim, then the remedy the petitioner would have is one of judicial review and not a statutory appeal. The respondent could also refuse to treat the new claim as a fresh claim and then issue removal directions under section 82 (g) or (h) and that would not generate an in country right of appeal. Or that no immigration decision is issued and therefore there would be no right of appeal at all.

[26] The danger (so argued Mr Winter) is that the respondent, having already refused the petitioner's case under the Case Resolution Program, would simply refuse to treat the human rights claim as a fresh claim and/or would also certify it as clearly unfounded and thereafter issue removal directions. In such a situation no right of appeal would arise. It was not simply a matter of the petitioner stating "I have a new human rights claim and that will automatically generate an 'immigration decision' which gives me a right of appeal". In effect the petitioner would be raising effectively the same issues as are raised in the present case.

[27] Even if the petitioner was to pursue other avenues the petitioner is still entitled to know the reasons for which the Case Resolution Directorate (CRD) refused him so that he can either judicially review that decision or is in a position to know how to strengthen his new human rights claim in order that it is not certified as clearly unfounded or is in a position to know how to persuade the respondent to treat the further submissions as a fresh claim in order that a statutory right of appeal is allowed.

[28] In the result, Mr Winter submitted that the petition is not premature, that the petitioner is entitled to know the reasons for the CRD's refusal and that the failure to give any reasons renders the decision of the CRD as irrational.

The Petitioner's Plea‑in‑Law

[29] The petitioner's plea-in-law was to the following effect:

"The respondent having acted unreasonably et separatim acted irrationally in refusing the petitioner's submissions, reduction of the decision dated 29 March 2011 should be pronounced as sought."

The Respondent's Position

[30] In overview the respondents' position was that the Secretary of State was under no obligation to provide reasons for the outcome of her review of the petitioner's case. This was a decision under the case resolution policy and not an "immigration decision" under statute. Reduction was not appropriate. There was a statutory remedy open to the petitioner in the event that it was decided to remove him from the UK. It was accepted that in relation to the question of giving reasons the principle was one of fairness. It was also accepted that if (contrary to the respondent's submissions) reasons were required then the reasons actually stated in the letter of 29 March 2011 were less than adequate. The petition was however premature.

[31] The respondent submitted that the petitioner was not entitled to the remedies sought. The petitioner entered the UK illegally. He was detained but released and "lost contact" with the UK Border Agency - in the sense that he was subject to reporting requirements and failed to comply with them. It is admitted that the petitioner's partner gave birth to a child on 17 March 2010. The letter from the petitioner's agents dated 18 August 2010, and the letter from the Secretary of State for the Home Department ("the Secretary of State") dated 29 March 2011, were referred to for their full terms, beyond which no admission was made.

[32] In Answer 6 it is averred that the Secretary of State's Case Resolution Directorate ("CRD") was established to resolve incomplete asylum cases in which a claim for asylum had been made prior to 5 March 2007 but the claim had not been concluded by the grant of leave to remain, removal of the claimant, or otherwise ("the legacy program"). Consideration of such a case by CRD did not involve the making of an application by the claimant, nor did it result in the making of an immigration decision, unless such an application was already outstanding. Where such an application was outstanding it was considered in accordance with the normal statutory rules, and policies, applying to such an application. Absent such an outstanding application, the task of CRD was otherwise simply to review incomplete older asylum cases. The letter from CRD (on behalf of the Secretary of State) to the petitioner dated 29 March 2011, which the petitioner now seeks to reduce, advised the petitioner of the result of such a review of his case. The letter did not advise the petitioner of a decision made by the Secretary of State in terms of immigration rule 353. No further submissions within the meaning of rule 353 had been made by the petitioner in the letter from his agents dated 18 August 2010. In that letter the petitioner's agents had expressly requested the Secretary of State to consider granting the petitioner leave to remain under the legacy program "outside the immigration rules." Separatim, any further submissions on behalf of an applicant such as the petitioner who had applied for asylum before 5 March 2007 required at the material time to be made personally at the Secretary of State's Further Submissions Unit ("FSU") in Liverpool. The petitioner has not made any further submissions personally, nor has he presented those submissions to the FSU in Liverpool. Accordingly no decision required to be made by the Secretary of State in terms of rule 353, nor was any such decision made. Esto the terms of the letter from the petitioner's agents to the Secretary of State dated 18 August 2010 amounted to further submissions in terms of rule 353, no decision has been made as yet by the Secretary of State as to whether (i) she accepts the petitioner's claim or (ii) if not, whether she considers those further submissions, when taken together with any material previously considered, amount to a fresh claim. In those circumstances the petitioner has no entitlement to have the decision intimated in the Secretary of State's letter of 29 March 2011 reduced. The only "decision" intimated in that letter was to the effect that following a review of the petitioner's case the Secretary of State did not consider there were any grounds on which she ought on her own initiative to grant the petitioner a more favourable immigration status than he presently enjoys. There was no obligation upon the Secretary of State to provide reasons for having reached that view: Purdon v City of Glasgow Licensing Board 1989 SLT 201.

[33] In a supplementary written note of argument (now lodged in process), the respondent submitted that the petitioner would have an in-country right of appeal against a subsequent decision to remove him. The respondent referred to Section 92 of the Nationality, Immigration and Asylum Act 2002. The present petitioner made an unsuccessful claim for asylum in 2004. If he were to attempt to rely upon that asylum claim it is accepted that the Secretary of State would be entitled to certify that claim under section 96 of the 2002 Act (i.e. that the claim relates to an issue which was dealt with, or ought to have been dealt with, in an earlier appeal) and the effect would be to exclude the right to appeal in-country. However, the petitioner now claims that his removal would be a disproportionate interference with the right to respect for his family life conferred by article 8 ECHR. That claim is based on the family he is said to have established with his wife and child. Both his relationship with his wife and the birth of the child post‑date the petitioner's unsuccessful appeal to the tribunal in 2004 in relation to the asylum claim. It is accordingly not an issue which could have been dealt with by the tribunal in 2004. In those circumstances, the petitioner having "made a human rights claim while in the UK" has an in-country right of appeal in terms of sections 82 and 92.

The Respondent's Pleas-in-law

[34] The pleas‑in‑law for the respondent (as amended) were as follows:

"1. The petitioner's averments being irrelevant et separatism being lacking in specification, the petition should be dismissed.

2. The Secretary of State having been under no obligation to provide reasons for the outcome of her review of the petitioner's case, the petition should be refused.

3. Separatim there being a statutory remedy open to the petitioner in the event it is decided to remove him from the United Kingdom, the petition should be refused."

Discussion

[35] This is an unusual case in the sense that it involves the "case resolution policy" - rather than an "immigration decision" under statute or one involving immigration rule 353.

[36] I have taken into account all the submissions of counsel, and the authorities referred to, and I have given matter anxious scrutiny.

[37] Ultimately, parties were agreed that in relation to the giving of reasons the appropriate approach and test could be found in passages from Clyde and Edwards on Judicial Review - particularly at pages 531-534, paragraphs 18.52 to 18.56.

[38] In general terms (as noted at page 531, paragraph 18.52) "there is no general common law obligation in Scotland, nor in England, to give reasons".

[39] The learned authors of Judicial Review deal with "The absence of reasons" and "The reason for reasons" at paragraphs 18.53 and 18.54 respectively. They discuss some modern developments at paragraph 18.55. They observe, inter alia, in paragraph 18.55 that "The universality of the obligation (in ECHR jurisprudence) should not prove to be burdensome upon decision makers when in appropriate cases the briefest expression of reasons will suffice".

[40] Under the heading of "The test", the learned authors state (at page 534, paragraph 18.56):

"That the function of the decision-making body or the nature of the issue is of an administrative character, as opposed to a judicial or "quasi-judicial" one is not determinative of a duty to give reasons. But the fact that it is carrying out a judicial function is a consideration in favour of a requirement to give reasons. The solution is to be found by a study of the whole circumstances, a consideration of the character of the decision-making body, the kind of decision it has to make and the framework in which it operates. The principle is one of fairness, and fairness may require that reasons be given. In general, as a matter of good practice, whether there is an obligation or not, it will be prudent for decision makers to give reasons, except in those cases where customarily reasons are never, or only exceptionally, given."

[41] I gratefully adopt that summary of the position as a correct statement of the approach to be adopted in relation to the giving of reasons.

[42] The principle is one of fairness and fairness may require that reasons be given.

[43] In my opinion, adopting that approach and applying it to the whole circumstances of this particular case, the petitioner is entitled to the remedy which he seeks.

[44] I have already set out the circumstances in some detail (above).

[45] The decision was made on behalf of the Secretary of State - following the representations made by the petitioner in the letters dated 18 August 2010 and 2 December 2010. The decision letter dated 29 March 2012 stated inter alia:

"The Case Resolution Directorate (CRD) was established to deal with older unresolved asylum applications, such as yours, with the aim of resolving cases by either removing individuals from the United Kingdom or granting them leave to remain in accordance with existing law and policy" (emphasis added).

[46] The decision was of important significance for the petitioner - relating to his immigration status and the best interests of his child. It adversely affected his position - or at least appeared to do so. The decision letter stated:

"I am writing to inform you that your case has now been fully reviewed by CRD and the outcome is that you have no basis of stay in the United Kingdom. You should make arrangements to leave the United Kingdom without delay" (emphasis added).

[47] In this case the framework or context in which the challenged decision operated was extra-statutory. In that context a decision maker may be able to justify giving brief reasons - which do not go into the same detail or the same depth as for statutory decisions. The nature and extent of the reasons required for a particular decision will vary depending on the whole circumstances of the case and on the decision itself. In this case, however, no adequate reasons have been stated.

[48] Where, as here, a letter is issued (by or on behalf of a Secretary of State) which gives the impression that an important issue (affecting an individual's immigration status or the interests of a child) has been decided against the individual (following the submission of recent potentially significant and largely undisputed information), then as a matter of fairness, in my view, some appropriate reason or reasons should be given.

[49] In this instance appropriate reasons have not been given - and the petitioner will be left with a sense that he has not been treated fairly if this decision remains in place.

[50] The respondent may be entitled to reach a similar conclusion in the future - but, in fairness, only if supported by adequate reasons.

[51] The fact that the respondent may take another decision at a later stage in a different context - such as an "immigration decision" under statute - does not alter my view in relation to the decision of 29 March 2011. Each decision should be looked at separately.

[52] The underlying question is whether the stated reasons are "adequate". That will depend to some extent on questions of fact and degree and upon the particular circumstances of the case concerned. In general terms, the duty imposed should be rigorous enough to produce adequate reasons for those affected by the decision - but not be so burdensome or impractical that the decision‑maker could not reasonably be expected to comply. Each decision requires to be considered separately - on its own merits and in procedural context. However, there is room for a flexible approach - in order to reach a fair and reasonable conclusion in the particular circumstances of the case concerned. That seems to be an integral part of a "fairness test".

[53] In the present case, in my view, it would be going too far for the petitioner to say that the respondent (in an extra-statutory context) requires to provide the same sort of detail and depth of reasoning as might be expected in an immigration decision taken in terms of statute.

[54] In this extra-statutory context, in my opinion, it would be sufficient if the respondent provided a brief explanation of why the decision was taken in the way it was.

[55] However, the respondent should be careful to avoid stating a conclusion in an extra-statutory context which might give the impression that the respondent has already formed an adverse view on a decision which has yet to be taken under statute.

[56] It could also be made clear, if that be the case, that the extra-statutory decision had been arrived at without prejudice to the petitioner's whole other rights and pleas including those under statute.

[57] If reasons are to be provided, it is generally best that they be stated at the time of the decision, or shortly thereafter, rather than in response to challenge.

[58] It would also be going too far to say that the petitioner must at some point obtain a decision which is capable of appeal. The petitioner may simply find himself (once again) in a position where his only remedy is judicial review.

[59] I cannot exclude the possibility that the respondent may reach a similar conclusion again at some point in the future - but in my opinion the decision complained of 29 March 2011 has been properly and timeously challenged. I was satisfied that the petition was not premature.

[60] However, I was not wholly persuaded by the petitioner's arguments in relation to "in-country right of appeal" or the lack of it. On the contrary, I agree with the respondent's submission that the petitioner would have an in-country right of appeal against a subsequent decision to remove him in terms of sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002.

[61] A decision to remove the petitioner would be a separate decision (from the decision under challenge) and such a decision has not yet been taken.

[62] In the whole circumstances, I am satisfied that the petitioner is entitled to reduction in this particular instance. No adequate reasons have been stated for the decision dated 29 March 2011.

[63] Reduction will have the benefit of putting both parties back into the positions they were in prior to 29 March 2011 so that matters can be considered and progressed afresh towards a conclusion that is seen to be fair.

[64] I am prepared to exercise my discretion in the petitioner's favour by granting the remedy sought.

[65] In the result, in my opinion, the petitioner's submissions are sufficiently well‑founded to result in decree of reduction.

[66] As the petitioner may wish to take further action in relation to matters raised in this petition it is probably neither necessary nor appropriate for me to say more at this stage.

Decision

[67] In the whole circumstances, and for the reasons outlined above, I shall sustain the petitioner's plea‑in‑law, repel the pleas‑in‑law for the respondent, and reduce the respondent's decision dated 29 March 2011.

[68] I shall reserve the question of expenses.