R (on the application of Ellis) v Secretary of State for the Home Department (Discretionary Leave Policy; Supplementary Reasons)

The Applicant, a citizen of Jamaica, entered the United Kingdom as a visitor in 2000. He married in 2002 and applied for leave to remain as the spouse of a settled person in 2003. That application was refused in October 2010. In the intervening period, he met his current wife, with whom he had two children, both British citizens, born in 2006 and 2012. His application for asylum in February 2010 was unsuccessful. In March 2010, he was sentenced to 12 months' imprisonment for obtaining property by deception. In September 2011, he was granted three years' discretionary leave (“DL”). He was granted a further three years' DL in April 2016. In March 2017, he was sentenced to four months' imprisonment for perverting the course of justice.

On 9 March 2019, the Applicant applied for indefinite leave to remain (“ILR”) using the form applicable for ILR based on long residence under the Immigration Rules HC 395 (as amended). He declared his criminal convictions and, in the relevant box, stated that he played an active part in his children's daily life and was their primary carer while his wife worked shifts as a nurse. On 21 March 2019 (“the March decision”), the Secretary of State for the Home Department refused the application for ILR on the ground that the Applicant did not meet the ten-year lawful residence requirement under paragraph 276B(i)(a) of the Immigration Rules. The application for ILR was also refused in the light of his criminal convictions under paragraph 322(1C)(ii) of the Rules and because there were no exceptional circumstances justifying settlement status. The letter noted that the Applicant continued to meet the requirements of the DL Policy* and was therefore granted a further three years' limited leave to remain.

In June 2019, the Applicant applied for judicial review on the ground that the March decision was unlawful given that the Secretary of State's DL Policy governing the grant of DL outside the Immigration Rules provided that those who had already completed two three-year periods of DL should ‘normally’ be granted ILR. On 25 November 2019 (“the November decision”), the Secretary of State issued a supplementary letter, signed by the same decision-maker, which stated

that she was not prepared to exercise discretion to grant settlement considering the Applicant's criminality, but would be prepared to grant more limited leave because his circumstances had not changed since the first grant of DL. The Applicant submitted that the March decision was unlawful as it gave no reason for concluding that it was appropriate to grant three years' DL rather than ILR. Moreover, the November decision should not be admitted in evidence because it was an attempt to bolster the original decision by adding a reason that was not previously given: that the Applicant's criminality itself supplied a reason for departing from the ‘normal’ position under the DL Policy.

Held, refusing the application:

(1) Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them. The Secretary of State's DL Policy was intended to promote consistency in the treatment of a very large number of applications. Once such a policy was published, it was difficult to see why the principles applicable to its interpretation should differ according to whether it was directed internally to decision-makers or intended to be relied upon by the public (paras 29 – 36).

(2) The DL Policy should not be read as saying that, once it was decided that an individual continued to qualify for further leave on the same basis as before, he must automatically be granted ILR after six years' continuous DL unless at the date of decision he fell within the restricted leave policy. The word ‘normally’ was used advisedly, so as to maintain the maximum possible discretion. Where a policy governed what was to happen in the normal case, it remained open to the decision-maker to take a different course in a particular case, provided he or she took account of the policy and had reason for considering the case to be abnormal (paras 37 – 42).

(3) Given that the Applicant applied for ILR on the form applicable for consideration under the Immigration Rules, it might be that no criticism could have been levelled at the decision-maker had he or she not considered whether to grant DL at all. The decision-maker did, however, choose to consider DL and, having done so, had to consider it in accordance with the DL Policy and consistently with the constraints imposed by public law. Therefore, the March decision, read on its own and without reference to the later reasons, was unlawful for two reasons. First, it contained nothing to indicate that the DL Policy had been considered at all. Secondly, it gave no reason for departing from the ‘normal’ position that ILR would be appropriate after six years' continuous leave for a person in the Applicant's position (paras 43 – 45).

(4) There were four categories of cases in which supplementary reasons, supplied in response to an actual or threatened legal challenge, might be relied upon: Caroopen v Secretary of State for the Home Department[2016] EWCA Civ 1307 applied. First, there were the cases in which supplementary reasons were admitted to ‘elucidate’ reasons previously given. Secondly, there were cases where supplementary reasons did not cure any defect in the original ones, but constituted a ‘fresh decision’ which, if lawful, made it futile to require reconsideration. In the third category were cases where the supplementary reasons related to material not before the decision-maker at the time when the earlier decision was taken. Fourthly, there were cases where the Secretary of State acknowledged that the original decision was flawed but simultaneously made a new one to the same effect (paras 46 – 51).

(5) The decision-maker in the November decision did not say in terms that the reasons given were an elucidation or further explanation of those for which the original decision was made. Nor was there any evidence from the decision-maker, or anyone else, to assist in identifying the reasons for the original decision. In any event, it would be inappropriate to admit reasons proffered for the first time in a document produced after the grant of permission, contemporaneously with the Detailed Grounds of Defence, when there had been no attempt to produce such reasons either in response to pre-action correspondence or in the summary grounds contained in the Acknowledgement of Service: R (on the application of Nash) v Chelsea College of Art and Design[2001] EWHC 538 (Admin) considered. The reasons contained in the November decision letter were not admissible to elucidate or explain the reasons for the March decision. The latter fell to be considered on its own and therefore, for the reasons given, was unlawful (para 52).

(6) The November decision must be considered as constituting a fresh decision. Read in context, the reasons given in the November decision letter, though hardly impressive, did not give rise to doubt as to whether the DL Policy had been properly applied and did supply a reason that was logically capable of constituting a basis for treating the case as abnormal for the purposes of the DL Policy. Therefore, although the later reasons were inadmissible to cure the defect in the earlier ones, they constituted a fresh decision, which was legally valid. It would be futile to require the decision-maker to remake the March decision. Section 31(2A) of the Senior Courts Act 1981 required the refusal of relief if it appeared to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, unless it was appropriate to disregard that requirement ‘for reasons of exceptional public interest’ pursuant to section 31(2B). Here, the ‘conduct complained of’ was the failure, in the light of the DL Policy, to give adequate reasons in the March decision. Because the later, adequately reasoned November decision was made by the same decision-maker and had the same outcome, it was possible to be confident that, but for the conduct complained of, the outcome would have been the same. Section 31(2A) therefore applied. As the claim raised no issue of exceptional public interest, section 31(2B) did not apply. Accordingly, relief was refused (paras 53 – 57).