R (on the application of Jennifer Kerr) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Jordan |
| Judgment Date | 22 September 2014 |
| Neutral Citation | [2014] UKUT 493 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 September 2014 |
[2014] UKUT 493 (IAC)
IN THE UPPER TRIBUNAL
Field House,
Breams Buildings
London
UPPER TRIBUNAL JUDGE Jordan
Mr M Biggs, instructed by Callistes Solicitors appeared on behalf of the Applicant.
Ms N Patel, instructed by the Treasury Solicitor appeared on behalf of the Respondent.
R (on the application of Jennifer Kerr) v Secretary of State for the Home Department IJR
JUDGE This is the substantive consideration of an application to judicially review the decision of the Secretary of State made on 9 March 2013 refusing the applicant's claim for leave to remain in the United Kingdom in order to pursue an established private and family life under Article 8 of the ECHR.
The applicant is a citizen of Jamaica who was born on 30 September 1964. She is now 49 years old. She entered the United Kingdom in May 2001 as a visitor and has remained unlawfully ever since the expiration of her visit visa sometime towards the end of 2001. On 24 September 2011, she married her husband, Jonathan White, a British citizen. About 12 months later, on 28 September 2012, by which time she had been in the United Kingdom for over 11 years (none of which, save the first six months, was lawful presence) she applied for leave to remain in the United Kingdom under Article 8 on the basis of the family life that she had developed with her husband in the preceding 12 months.
No attempt was made to make an application under the Immigration Rules as a spouse. Accordingly, the application did not address the formal requirements for entry clearance as a spouse, including the financial and maintenance requirements.
On 9 March 2013 the application was refused. No removal directions were made at that time but the applicant was warned that, if she failed to leave, enforcement action would be taken. Subsequently, the respondent was urged to issue removal directions providing her with a right of appeal under section 82 of the Nationality, Immigration and Asylum Act, 2002.
The respondent's decision was prompted by an application made on 28 September 2012 supported by 15 groups of documents including bank statements from her husband, a letter from her husband's accountant showing that his business had an annual turnover of £131,626 (and £60,000 for the next 2 1/2 month period) and a letter from HMRC.
The letter under challenge makes reference to the applicant's spouse by reference to a consideration of Appendix FM and the requirements of R-LTRP.1.1 that the applicant must have a valid application for limited or indefinite leave to remain as a partner and that the applicant must have lawful presence in the United Kingdom but not as a visitor or with limited or with leave of six months or less or on temporary admission. Accordingly, the fact that the applicant entered the United Kingdom in May 2001 as a visitor effectively precluded her from meeting these requirements. Thereafter the decision maker went on to consider paragraph 276ADE.
This resulted in setting out a series of requirements that were immaterial for the applicant. It was not, of course, suggested that she had 20 years residence in the United Kingdom or that she was under the age of 18 or that she was under the age of 25. Nevertheless, these considerations were considered and inevitably rejected. The only material part of paragraph 276ADE related to sub-paragraph (vi) applying to a person who was over 18 but had not lived continuously in the United Kingdom for 20 years but who established she had no ties, including social, cultural or family ties, with Jamaica. Quite properly, the decision maker reached the conclusion that, having been in the United Kingdom since May 2001 but having spent the first 37 years of her life in Jamaica, the applicant failed to establish that she had lost all ties there.
That was the only consideration that was provided pursuant to Article 8. There was no reference to whether the particular circumstances of the applicant might amount to an exception to the norm in accordance with the now established case law.
I do not consider that decisions of this type should be over prescriptive in their contents. If a person has entered the United Kingdom as a visitor and has overstayed, there can be no requirement that the decision maker has to go through the process of considering whether there are exceptional circumstances when there are none. This is not a formulaic exercise. However, where as here, the decision maker focused on a series of matters which were largely irrelevant, such as the position of a person who is under 18 or between the ages of 18 and 25 and treats the applicant's failure to meet those requirements as determinative, it is apparent that the decision does not engage with the fact that there may be circumstances beyond those considerations which a decision maker must acknowledge. It may only have required the briefest of references but, in this case, there was none. For this reason I consider that the decision of 9 March 2013 was unlawful. It follows that it should be set aside.
However, matters do not end there. In accordance with directions that were attached to the grant of permission, the respondent was required to serve a skeleton argument. Such a skeleton argument was served on 10 September 2014. On the same day, the respondent served the appellant with a further decision.
It was described in the following way:
“…this letter is supplemental and should be read in conjunction with the original decision.”
Mr Biggs submitted that no consideration should be given to this letter. He submitted that it did not contain an acknowledgement that the earlier decision was wrong and was withdrawn; he submitted it was not a new decision and was expressly stated to be supplemental. In such circumstances he submitted that it was unlawful in accordance with the principles set out in the decision of the Court of Appeal in Ermakov, R (on the application of) v Westminster [1995] EWCA Civ 42.
The issue that arose in Ermakov was whether the judge erred in having regard to reasons for the decision advanced by the Council's principal homelessness officer in an affidavit when those reasons were fundamentally different from the reasons communicated to Mr Ermakov in the Council's section 64 letter notifying him of their decision and the reasons for it.
Reference was made to the classic statement of Lord Scarman in Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661 at 673:
“Failure to give reasons. When a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate and intelligible. In In re Poyser and Mills' Arbitration [1964] 2 QB 467, Megaw J had to consider section 12 of the Tribunals and Inquiries Act 1958 which imposes a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. Megaw J commented, at page 478:
‘Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.’”
Starting from that point of principle, the appellant in Ermakov argued that it could not be right to admit, as justification of the decision, this later evidence, since to do so would nullify the very objects and advantages underlying the requirement to provide reasons. It was conceded that evidence may be admitted to amplify the reasons given in the decision letter, but the weight of authority was against allowing wholly deficient statutory reasons to be made good by affidavit evidence in the course of proceedings. Hutchison LJ stated:
“(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex parte Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence — as in this case — which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have...
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