Upper Tribunal (Immigration and asylum chamber), 2020-02-05, [2020] UKUT 82 (IAC) (R (on the application of Ellis) v Secretary of State for the Home Department (discretionary leave policy; supplementary reasons))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Chamberlain |
| Status | Reported |
| Date | 05 February 2020 |
| Published date | 16 March 2020 |
| Hearing Date | 29 January 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | discretionary leave policy; supplementary reasons |
| Appeal Number | [2020] UKUT 82 (IAC) |
In the Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of Ellis) v Secretary of State for the Home Department (discretionary leave policy; supplementary reasons) [2020] UKUT 00082 (IAC)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Heard at Field House
On 29 January 2020
Before
THE HON. MR JUSTICE CHAMBERLAIN
sitting as a Judge of the Upper Tribunal
Between
THE QUEEN
on the application of
MICHAEL ELLIS
Applicant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Mr. Paul Turner, Counsel, instructed directly
For the Respondent: Mr. Nicholas Ostrowski, Counsel, instructed by the Government Legal Department
-
Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them.
-
The Home Office discretionary leave policy should not be read as saying that, once it is decided that an individual continues to qualify for further leave on the same basis as before, he must automatically be granted indefinite leave to remain after 6 years’ continuous discretionary leave unless at the date of decision he falls within the restricted leave policy. The word ‘normally’ is used advisedly, so as to maintain the maximum possible discretion. Where a policy governs what is to happen in the normal case, it remains open to the decision-maker to take a different course in a particular case, provided he or she takes account of the policy and has reason for considering the case to be abnormal.
-
There are four categories of cases in which supplementary reasons, supplied in response to an actual or threatened legal challenge, may be relied upon: first, to ‘elucidate’ reasons previously given; secondly, to constitute a ‘fresh decision’; thirdly, to consider material not before the decision-maker at the time when the earlier decision was taken; and fourthly, to acknowledge that the original decision was flawed but simultaneously make a new one to the same effect.
-
Even if the original decision is held to be unlawful, relief must be withheld pursuant to s.31(2A) of the Senior Courts Act 1981 if a further decision shows that it is highly likely that the outcome would not have been substantially different, unless the proviso in s.31(2B) applies.
DECISION AND REASONS
Introduction
-
The Claimant, Mr Michael Ellis, seeks judicial review of decisions of the Secretary of State on 21 March 2019 and 16 April 2019 to refuse his application for indefinite leave to remain (‘ILR’) and instead to grant him 3 years’ Discretionary Leave (‘DL’).
-
Permission to proceed was initially refused on the papers, but was granted after an oral hearing on 18 October 2019 by Upper Tribunal Judge Norton-Taylor, limited to one ground. This was that the decision was unlawful given that the Secretary of State’s policy governing the grant of DL outside the Immigration Rules, contained in the Asylum Policy Instruction: Discretionary Leave, version 7.0, published on 18 August 2015 (‘the DL Policy’), provides that those who have already completed two 3-year periods of DL should ‘normally’ be granted ILR.
Background
-
Mr Ellis is a national of Jamaica. He entered the UK as a visitor on 7 August 2000. His leave to remain was extended to 26 January 2001. He married Jennen Blair in 2002 and, on 13 August 2003, applied for leave to remain as the spouse of a settled person. That decision was refused, but not until 29 October 2010. In the intervening period, he had met his current wife, Tinisha Elliston, with whom he had two children, both British citizens, born on 5 September 2006 and 6 December 2012.
-
On 23 February 2010, Mr Ellis claimed asylum. That claim was refused on 29 October 2010 and his appeal rights were exhausted on 25 June 2011. In the meantime, on 26 March 2010, he was sentenced to 12 months’ imprisonment for obtaining property by deception.
-
After the exhaustion of his appeal rights, Mr Ellis applied for leave to remain. DL was granted for 3 years from 14 September 2011 to 13 September 2014. On 9 September 2014, he made an application to extend that leave. That was granted on 5 April 2016, for a further 3 years. So, by 9 March 2019, when he made the application which triggered the challenged decision, he had been in the UK lawfully, pursuant to two grants of DL, for 7 ½ years.
-
There had, however, been one potentially significant change of circumstances. On 1 March 2017, Mr Ellis had been sentenced to 4 months’ imprisonment for perverting the course of justice.
Mr Ellis’s application for ILR
-
On 9 March 2019, Mr Ellis applied for ILR using form SET LR. This is the form applicable to applications for settled status or ILR on the basis of long residence. He declared his criminal convictions and, in the box seeking ‘evidence of an active relationship with a child or parent or medical evidence such as evidence of ill health’, said this:
‘I need to stay in the UK for the [sic] my children and my wife. I am an active father in my children’s life. I attend and participate in my children’s extracurricular activities, I take them to school and attend the school events (sports days, summer fairs etc). I participate in the fundraising events they attend Boy Scouts, Guitar Lessons, Swimming Lessons, Football Lessons and Jigsaw Art School. My wife is a Senior Staff Nurse in a Hospital and she works 150 hours a month commuting four hours a day to North West London where she works a mixture of Long Day Shifts, Night shifts and Weekend shifts, including during holidays. There is no OFSTED Registered childcare provider available from the time she starts work to the time she finishes, I am the only available person to take care of our children whilst she works especially during her unsociable working hours. I contribute to the running of my church by donating equipment, food and provide my services (catering) when our church have events.’
The Secretary of State’s decision of 21 March 2019
-
On 21 March 2019, an official acting on behalf of the Secretary of State wrote to Mr Ellis in these terms:
‘We have considered your application and you do not qualify for indefinite leave to remain. The reasons for this are set out in Annex A to this letter.
However, we are satisfied that you would fall to be granted limited leave to remain of 36 months on the basis of continuing to satisfy the Discretionary Leave policy, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.’
-
Annex A set out Mr Ellis’s immigration history and noted his two custodial sentences. Under the heading ‘Reasons you do not qualify for a grant of indefinite leave to remain’, it said this:
‘We are not satisfied that you meet the requirements of 276B(i)(a) of the Immigration Rules because you do not have 10 years lawful leave to remain in the United Kingdom. Your first period of DL was granted on 14 September 2011, you have therefore only completed 7 years, 6 months of continuous lawful leave in the United Kingdom.’
-
It was also pointed out it was less than 7 years since the end of the sentence imposed as a result of his second conviction and that this was a ground for refusal of ILR under paragraph 322(1C)(ii) of the Immigration Rules. This was then said:
‘Therefore, having considered all the circumstances of your particular case, it has been concluded that you have failed to establish that there are any significantly compelling reasons which justify granting you settlement here on an exceptional basis.
As your application is not being sought for a purpose covered by the Immigration Rules and falls for refusal on the basis of your criminal convictions, it is refused under Paragraph 322(1) & 322(1C)(ii) of HC 395 (as amended).’
-
Under the heading ‘Reasons you would qualify for a grant of discretionary leave’, after noting that the application had been considered under Appendix FM and paragraphs 276ADE(1)-CE and on the basis of exceptional circumstances, the Secretary of State said this:
‘We are satisfied that you continue to meet the requirements of the discretionary leave policy.’
The claim for judicial review
-
After pre-action correspondence, Mr Ellis issued a claim for judicial review on 3 June 2019. The first ground of challenge was that, in the light of the policy on DL, the grant of 3 years’ DR, rather than ILR, was unlawful. It was said that the decision-maker ‘erred by having no proper regard to [Mr Ellis’s] circumstances and little regard to the policy’. As I have said, this is the only ground in respect of which permission to proceed was granted.
The Secretary of State’s supplementary letter
-
After permission was granted, the Secretary of State sent a further letter, dated 25 November 2019, to Mr Ellis. It was signed by the same decision-maker (whose code was LIVSET 5) and said this:
‘As you are aware, your application was the subject of a decision letter dated 21 March 2019 which you have challenged by way of judicial review. This letter supplements the decision letter dated 21 March 2019.
We have considered your application and you do not...
To continue reading
Request your trial