Myrie v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Beatson,Black LJ |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1307 |
| Docket Number | Case No: C2/2014/3458 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2016 |
[2016] EWCA Civ 1307
Lady Justice Black
Lord Justice Beatson
and
Lord Justice Underhill
Case No: C2/2014/3458
C2/2015/3796
IN THE COURT OF APPEAL (CIVIL DIVISION)
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
Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellant in Caroopen
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
Approved Judgment
INTRODUCTION
There are two appeals before us. Both are against decisions of the Upper Tribunal dismissing judicial review challenges to decisions of the Secretary of State to refuse applications for leave to remain. They have been heard together because both raise issues about the effect of "supplementary letters/decision letters" relied on by the Secretary of State. 1 In Myrie that is the only issue, but in Caroopen there is a further issue about whether the Tribunal took the correct approach to reviewing the decision of the Secretary of State.
The shape of this judgment is as follows. I will set out the background statutory provisions and the facts and procedural history in both cases. I will then address the issue about the use of supplementary letters which is common to both. I will deal finally with the further issue in Caroopen.
The Appellant in the first appeal, Johanna Caroopen, has been represented before us by Mr Zane Malik, and the Appellant in the second, Debbie Myrie, by Mr Parminder Saini. The Secretary of State has been represented by Mr Christopher Staker in Ms Caroopen's case and by Ms Julie Anderson in Ms Myrie's.
THE RELEVANT STATUTORY PROVISIONS
The substantive claims in both cases invoke the Appellants' rights to both private and family life, as protected by article 8 of the European Convention on Human Rights ("the Convention"); and it will be convenient to summarise the basic law at this stage. The Immigration Rules were radically revised in this area with effect from 9 July 2012.
I start with private life. This is covered by paragraph 276ADE of the Immigration Rules, which begins:
"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.)
As for family life, applications made on this basis are covered in Appendix FM. I need not attempt to summarise its provisions save to note that it does not purport to cover the case of family members who are not partners or children (save in the case of adult dependants, with which we are not concerned in these cases).
The provisions of paragraph 276ADE and Appendix FM are explicitly intended to cover the generality of cases where article 8 of the Convention is engaged. However, it is recognised that there will be cases where leave to remain "outside the Rules" may be required in order not to infringe an applicant's rights under article 8: there is of course a good deal of case-law about the proper approach to claims made on this basis.
Section 55 (1) (a) of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to ensure that her functions in relation to, inter alia, immigration are discharged "having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom".
THE FACTS AND PROCEDURAL HISTORIES
CAROOPEN
Immigration history. Ms Caroopen, who was born on 11 February 1979, and her husband Kersley, who was born on 15 October 1973, are Mauritian nationals. They arrived in this country in May 2004 with their daughter Jenna, who was born on 14 November 2002 and was accordingly some 18 months old. They were admitted as visitors with leave to remain until 31 November 2004. They were then given leave to remain as students until 31 March 2009. A son, Kaylan, was born in the UK on 10 November 2007. On 13 March 2009, the day before their leave to remain expired, they applied for an extension; but the applications were formally defective and were rejected. Thereafter they had no leave to remain, but they did not leave the country.
The application for leave to remain. On 1 October 2012 Ms Caroopen, through a firm of immigration consultants called Abrahams, made a further application for leave to remain. Although it was rather ambiguously expressed, it is now accepted that the application covered not only herself but also her husband and their two children as dependants. Abrahams' covering letter drew attention in particular to the terms of paragraph 276ADE (iv) of the Rules: that is, although again it was not very clearly expressed, they relied in particular on the fact that Jenna had now been living in the UK for more than eight years. Various materials were attached to the application relating to their private life in this country, including letters and reports from Jenna's school, the church which the family attended and the Rotary Club branch of which Mr Caroopen was the President.
The Secretary of State's initial decision. Regrettably, it took over a year for the Secretary of State to make a decision, but on 4 October 2013 decision letters were sent for each member of the family. I need give details only of the letters in the case of Ms Caroopen herself and Jenna. In the case of Ms Caroopen the letter goes through the provisions of both paragraph 276ADE and Appendix FM in the usual somewhat formulaic fashion, demonstrating that none of them applied in her case. There is then a further section headed "Decision on Exceptional Circumstances", which addresses in particular the circumstances of her two children, which the Secretary of State acknowledges have to be taken into account by virtue of section 55 of the 2009 Act. The substantive part of this section reads as follows:
"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.
The judicial review application. On 3 January 2014 Ms Caroopen commenced proceedings in the Upper Tribunal for judicial review of the Secretary of State's decision. Her husband and children were also parties to the claim. The grounds (which were not drafted by Ms Caroopen's current representatives) are diffuse and poorly drafted, but I need not analyse them here because, as will appear, the issues became better defined subsequently. However, it should be noted that they relied at least in part on the fact that Jenna's case appeared to fall squarely within the terms of paragraph 276ADE (iv). On 30 April UTJ Rintoul...
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