Kerr, R (on the application of) v Secretary of State for the Home Department

LADY JUSTICE SHARP: The Applicant in this case, Jennifer Kerr, who is Jamaican, entered the United Kingdom on a visitor visa in 2001 and overstayed. In 2011 she married a Mr White and in 2012 she applied for leave to remain as the wife of a British citizen.

The application was refused by a decision letter dated 9 March 2013. The Applicant's solicitors asked the Respondent to reconsider on the basis of her Article 8 rights and if not, to make a removal decision which could then be appealed.

The Applicant subsequently challenged the decision by proceedings for judicial review and the hearing of that claim took place on 25 September 2014. Shortly before it did so, a supplemental decision letter was sent dated 10 September 2014.

The Upper Tribunal Judge quashed the decision made in March 2013 for reasons that are lucidly explained in paragraph 10 of his determination, but made no order for further relief. He held the subsequent decision was a fresh and lawful decision. It showed a proper consideration of the Applicant's claim.

She had been here unlawfully for in excess of 11 years and her case did not fall within any exceptional category under the rules. He concluded it would not be unreasonable or disproportionate for the Applicant to make an out of country application.

The Applicant, ably represented by Mr Biggs, who appears before me today, did not request an adjournment to deal with the subsequent letter and in the Upper Tribunal Judge's view, the Applicant's position was adequately safeguarded by an appropriate order on costs.

The judge said technically his decision permitted a further challenge to the subsequent decision letter, but the practical consequences of his decision was that such a challenge would have no prospect of success.

He rejected the argument made by Mr Biggs and renewed before me that this case fell within the principles identified in Ermakov [1995] EWCA Civ 42, a case where the court held the decision maker, a principal homelessness officer, could not rely on reasons which were fundamentally different to those communicated to Mr Ermakov to render the original decision lawful.

The judge distinguished that case from this because, as he said, he did not hold the original decision was lawful, but that the subsequent decision effectively was. In those circumstances, as I have said, he refused to grant a remedy.

Mr Biggs today submits that the judge's decision on this point was irrational. It was irrational for the judge to have treated the two decision letters separately, in particular because the second letter said in terms said it was supplemental to the first and the judge therefore erred in principle.

His second point relates to the judge's decision, which is dealt with in paragraph 24 of his determination, in relation to the argument then mounted that the Respondent's decision not to issue removal directions was unlawful.

The judge considered that argument and he concluded that the argument which was made sought to impose a duty upon the Respondent where none existed simply at the election of the Applicant and irrespective of the discretion that the Respondent has to decide the priority in which removal directions will be made in accordance with the relevant policies.

In my judgment, neither point has any arguable merit. The short point in relation to the first argument is that the original decision was unlawful and the judge rightly quashed it, but he was also then right to refuse to give any relief for the reasons that he gave.

I should add that Mr Biggs' arguments might have had some legs if he could have pointed to any error or unlawfulness in the second letter, but he cannot and does not do so. In those circumstances, the judge obviously considered it would be futile for the matter to go back for a further consideration and in my judgment, he was plainly right to come to that conclusion.

As for the second point, which Mr Biggs has not pressed with any vigour, in my view, that is unarguable for the reasons that the judge gave. The Secretary of State is under no obligation to make removal directions and there is no lawful basis for challenging her decision not to do so.

In those circumstances, this renewed application is refused.