Caroopen & Myrie v The Secretary of State for the Home Department

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 granted permission to apply for judicial review.

The supplementary letter. The grant of permission to apply for judicial review evidently led the Secretary of State to reconsider the terms of her decision. She appears to have appreciated that her failure to address Jenna’s claim under paragraph 276ADE (iv) was potentially problematic. On 15 July 2014, or perhaps 18 June (Footnote: ²), she wrote what was described as a “supplemental” letter, which “should be read in conjunction with the original decision of 4 October 2013”. Despite that description, the letter in effect starts again from scratch and sets out full grounds for refusing leave to remain in the case of each of the applicants in turn, covering both Appendix FM and paragraph 276ADE. In the case of Jenna, the passage relating to paragraph 276ADE (iv) reads as follows:

“Your daughter has lived continuously in the UK for at least 8 years and it would be reasonable to expect her to leave the UK. It is considered that she would be able to adapt to life in Mauritius because she will be returning to her home country with her parents and sibling who will assist her in adapting to life in Mauritius. Therefore the Secretary of State is not satisfied that she can meet the requirements of Rule 276ADE (1) (iv).

We have taken into consideration that your daughter has lived continuously in the UK for 8 years. However, it is considered that she would be able to adapt to life in Mauritius because she will be with her mother, father and sibling who will assist her in adapting to life in her home country. Her mother and father will be able to support her to enjoy her full rights as a citizen.

Therefore, it is considered reasonable for your daughter to return to Mauritius as a family unit and continue to enjoy her family life overseas. Whilst this may involve initial disruption to her life it is considered that it is proportionate in order to meet the legitimate aims of the state.”

The Grounds of Defence. On 27 July 2014 the Secretary of State lodged detailed Grounds of Defence. Her case is summarised at para. 3. Under head (i) she took a point which has now been abandoned about whether any application had been made on behalf of Jenna. Head (ii) reads:

“Alternatively, if this was a valid application by Jenna, while it is accepted that there was no express consideration of it, nevertheless it is plain that the Secretary of State considered that it would be reasonable for Jenna to leave the United Kingdom such that Jenna’s application under paragraph 276 ADE (iv) would have inevitably failed. A remedy in these circumstances would therefore be inappropriate. Likewise, a remedy is also inappropriate given the fact that the Secretary of State has issued a further decision dated 18 June 2014 which expressly considered paragraph 276ADE, which is annexed to these grounds.”

As appears, the supplementary letter was annexed to the Grounds. It is said by Ms Caroopen that it had not been sent to her or her representatives previously, although it had supposedly been written six weeks previously; and that was not controverted before us. That is thoroughly bad practice. No doubt what prompted the letter was the litigation context, but nevertheless it was a decision about Ms Caroopen’s future and should have been sent to her and not merely exhibited to a court document.

The judgment. The substantive application for judicial review came before UTJ Southern on 24 September 2014. Ms Caroopen was represented by Ms Dilrubi Qureshi and the Secretary of State by Mr William Hays, both of counsel. The Judge dismissed the application. I will give his reasons in due course. It is sufficient to note at this stage that in reaching his decision he took into account the terms of the supplementary letter.

The parties to this appeal. Oddly, the appeal to us has been brought only in the name of Ms Caroopen. But Mr Staker told us that the Secretary of State accepts that the result of the appeal will apply equally to the claims of her husband and children, so that for practical purposes all four can be treated as appellants.

Immigration history. Ms Myrie is a Jamaican national. She was born on 23 September 1977. She came to this country on 7 March 2009 on a visitor’s visa valid until 24 March 2009. She did not return to Jamaica following the expiry of her leave and has ever since then been an illegal overstayer.

Application for leave to remain. On 7 March 2012 Ms Myrie applied for leave to remain, through her solicitors, Greenland Lawyers, under article 8 of the Convention, on the basis that she had established both a private life and a family life in this country. Her essential case was that she was living with her elder sister, Clover, and Clover’s partner Vincent and the four children of the family, who were either British citizens or in any event had indefinite leave to remain. Clover and Vincent both worked full-time and Ms Myrie is said to have played the role of a “second mother” to her nephews and niece: in the cases of two of them the relationship was reinforced by the fact that they had lived with her in Jamaica for some time before she came to this country. Her application was supported by letters from Clover and two of the children and several photographs.

The Secretary of State’s initial decision. As in Ms Caroopen’s case, the Secretary of State did not respond to that application for over a year. But on 28 June 2013 it was refused. The Notice of Decision is short. It begins:

“The family life that you claim to have with relatives in the United Kingdom does not constitute family life as set out in Appendix FM of the Immigration Rules. Therefore your claim has been considered on the basis of your private life in accordance with paragraph 276ADE of the Immigration Rules.”

The decision then goes on to consider Ms Myrie’s private life claim in accordance with paragraph 276ADE. It goes through heads (ii)-(iv), demonstrating why Ms Myrie does not qualify under them. I need only set out what is said about (vi), namely:

“Having spent 31 years in your home country and in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (vi).”

There is a concluding paragraph which reads as follows:

“It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the United Kingdom is therefore refused.”

The judicial review application. On 28 June 2013 Ms Myrie applied for judicial review of that decision. The grounds are drafted by her solicitors. The essential ground pleaded is in para. 6, which reads as follows:

“The Claimant contends that the Defendant failed to consider in any details the particular circumstances of her application in accordance with the provision of Article 8 of the ECHR. The Claimant provided the Defendant with evidence of her extensive family life in the UK and shown [sic] that she had established a right to private life in accordance with Article 8 of the ECHR.”

Other points are taken but I need not summarise them here. On 28 January 2014 permission to apply for judicial review was refused on the papers by UTJ Allen. However, at a renewal hearing on 26 March, at which Ms Myrie was represented by Mr Saini, Jeremy Baker J and UTJ Storey gave permission. This was primarily on the basis that it was arguable that the Secretary of State had not addressed the family life claim, although permission was also given to her to pursue a point based on whether the pre-July 2012 rules applied.

The first supplementary letter. As in the case of Ms Caroopen, the grant of permission to apply for judicial review evidently prompted the Secretary of State to reconsider the terms of her original decision. On 24 July 2014 she wrote a further letter which the introductory paragraph says “is supplemental and should be read in conjunction with the original decision of 28 June 2013”. No explanation is given of why a supplementary letter is required. The letter is arranged under four headings, which I can summarise as follows:

The second supplementary letter. About three months later the Secretary of State appears to have had yet further thoughts about her decision. On 30 October 2014 she wrote another letter, again introduced on the basis that it was “supplemental” and “should be read in conjunction with the original decision of 26 June 2013 (Footnote: ³) and the Supplementary letter of 24 July 2014”. It is organised under five headings, which I take in turn:

It will be apparent from my comments on both the supplementary letters that I regard them as confused and confusing. Even when read in isolation, they are poorly drafted and appear to combine individually-drafted passages with standard templates, some of which are of no, or doubtful, relevance to the particular case, in a way which tends to obscure the real basis of the reasoning. But the problems are compounded when, as the letters expressly say should happen, they are read together; although they are largely repetitious, there is enough variation to make it awkward to identify what different points are being intended to be made and what the end result is supposed to be. I am conscious that the officials drafting such letters are not lawyers and that they are working under great pressure and having to apply a constantly shifting body of law, and lore, which is shamefully complicated and is confusing even to experts. They have my sympathy, and it is no doubt easier to criticise such letters than to draft them. But in the end applicants are entitled to be given decisions and reasons which are as straightforward and comprehensible as the subject-matter allows; and these letters fall well short of that standard.

The Grounds of Defence. On 3 November 2014 the Secretary of State lodged Detailed Grounds of Defence settled by Mr William Hansen of counsel. These pleaded, inter alia, that “any lack of reasoning has now been cured by [the supplementary letters]” and went on to rely on passages in them with some particularity (see paras. 5, 23-24 and 26). The letters were served with the Defence.

The hearing before UTJ Coker. The claim came on for hearing before Judge Coker on 6 January 2015. The Appellant was represented by Mr Saini and the Secretary of State by Mr Hansen. Mr Saini raised a preliminary question about the status and effect of the supplementary letters. He contended that they could not be relied on to defend the decision under challenge. Mr Hansen submitted that they could and should be taken into account as forming part of a single decision process. Judge Coker accepted Mr Saini’s submission, but she said that the supplementary letters might nevertheless be relevant to the question of whether it was appropriate to grant relief. She adjourned the hearing on the basis that the parties could put in further written submissions in the light of that ruling and ask for a further hearing if required. Such submissions were duly lodged but neither party requested an oral hearing.

Judge Coker’s decision. Judge Coker’s decision was handed down on 30 July 2015. She gave full reasons for the decision already communicated that the supplementary decision letters were irrelevant to the lawfulness of the original decision. She held that that decision was unlawful, on the basis that it wholly failed to address the specifics of Ms Myrie’s claim to have a family life. However, she held that as a matter of discretion she would not quash the original decision because the supplementary letters addressed the matters with which it had failed to deal. I give her reasons below.

“Supplementary letter/decision letter” is a label which may be applied in any case where the Secretary of State (Footnote: ⁴) has made a decision the validity of which is challenged in judicial review proceedings and then issues a further letter with a view to assisting in her defence of the claim. This can occur in many different circumstances. We asked the Secretary of State to provide a list of the kinds of situation in which supplementary letters are commonly employed by her. In response to that request we were given following the hearing a Note drafted by the Immigration and Border Policy Directorate of the Home Office. The burden of the Note was that the decision whether to provide a supplementary letter in any given case was highly fact-specific and that it was accordingly impossible to provide a comprehensive list of scenarios in which they might be deployed, although an indicative list was given. The Note also helpfully confirmed – what can in any event be inferred from the procedural histories of cases like these – that the Home Office applies a triage process under which judicial review claims are assessed by a team of officials and lawyers if permission is given (Footnote: ⁵) and a decision is made as to, among other things, whether a supplementary letter would be appropriate.

Drawing partly on the Note from the Home Office but partly also on the authorities and my own experience of hearing cases of this kind, I have found it useful to distinguish between three conceptually different types of purpose which a supplementary letter may serve. There may be others, or other ways of analysing them; but this seems to me to be the analysis that is relevant for our purposes.

First, a supplementary letter may be sent in order to supply reasons, or fuller reasons, for the original decision in response to a criticism of the adequacy of the reasons given with that decision. The authorities express caution about permitting a decision-taker to cure defects in his original decision in this way. The case most often referred to in this regard is R v Westminster City Council, ex p Ermakov [1995] EWCA Civ 42, [1996] 2 All ER 302, where this Court declined to allow a housing authority which had made a finding of intentional homelessness, under what was then section 64 of the Housing Act 1985, to give reasons for its decision which differed substantially from the (unlawful) reasons given with the decision itself. However, that was a case where the section imposed an express obligation to give reasons at the same time as the decision, and there are other cases in which a more flexible approach has been adopted and where subsequently-provided reasons have been admitted so as to cure a defective original decision. I will refer to such cases as “further reasons” cases. The authorities in question are identified in section 62.4 in Fordham’s Judicial Review Handbook, 6^th ed. (see esp para. 62.4.4). We were referred in particular to the decision of Stanley Burnton J in Nash v Chelsea College of Art and Design [2001] EWHC (Admin) 538. The judgment in that case contains, at paras. 27-36, a lucid discussion of the authorities as they then stood, together with his summary of their effect, which has been referred to in many other first-instance decisions (Footnote: ⁶). In particular, it has more than once been relied on by the Upper Tribunal in refusing to allow the Secretary of State to rely on reasons provided in supplementary decision letters: examples are the careful decisions of UTJ Rintoul in R (AB) v Secretary of State for the Home Department [2015] UKUT 00352 (IAC) and UTJ Coker in R (Hamasour) v Secretary of State for the Home Department [2015] UKUT 00414 (IAC). Since (as the section in Fordham to which I have referred shows) there is voluminous case-law, including several authorities post-dating Nash, to which we were not referred, I prefer not to approve Stanley Burnton J’s summary as a comprehensive account of the correct approach, and I will accordingly not set it out here. In broad terms, however, he recognised that even in a case where there was no explicit statutory duty to give reasons the courts should approach attempts to rely on subsequently-provided reasons with caution; and he said that that was particularly so in the case of reasons put forward after the commencement of proceedings and where important human rights are concerned. I would endorse that.

Secondly, a supplementary letter may be effective not by retrospectively curing the original decision but by prospectively filling the gap which would arise if it should be held to be invalid. There is clear authority in the Upper Tribunal that the fact that there has been a subsequent decision may be relevant to the relief granted: the reasoning is that, whereas the default position is that the decision-maker will be required to re-take an invalid decision (Footnote: ⁷), that may be pointless where a fresh decision has since been taken which the court or tribunal is satisfied is lawful. I will refer to cases of this kind as “fresh decision” cases. A full and clear exposition of the reasoning in a fresh decision case can be found in the judgment of the UT in Kerr v Secretary of State for the Home Department [2014] UKUT 00493 (IAC). In that case the Secretary of State had in a letter dated 9 March 2013 refused the claimant leave to remain. That decision was challenged by way of judicial review, and the UT held that it was unlawful because it contained no proper consideration of her rights under article 8. But in a supplementary letter dated 10 September 2014, which was attached to the acknowledgment of service, the Secretary of State had addressed the article 8 claim. The claimant argued that the tribunal should have no regard to that letter, relying on Ermakov. UTJ Jordan rejected that argument. He said, at paras. 14-16 (Footnote: ⁸):

“14.

  The principles set out in Ermakov have no application in the present case. They were directed towards the lawfulness of an earlier statutory decision. Such a decision cannot be remedied by what is said later. In this case I have already made a finding that the decision of March 2013 is unlawful. It was unlawful and remains unlawful and will always be unlawful. Nothing that is said in the decision of 10 September 2014 alters the lawfulness of the earlier decision. Indeed, the very fact that it was thought necessary to provide another letter strongly suggests that the earlier decision was deficient and required the consideration of additional material.

15.

  The relevance of the letter of 10 September 2014 is focused upon the remedy that the Tribunal affords when an earlier decision is found to be unlawful but is followed by a later decision. If the later decision is a lawful consideration of all of the factors that the decision maker was required to consider but failed to consider in the earlier decision and omits consideration of all those factors that the decision maker was required to omit, the later decision will be a lawful one. This does not alter the status of the earlier decision. As I said in the course of argument, if judicial review proceedings are commenced alleging that the relevant decision is unlawful, those proceedings will have been justified and their commencement will remain justified at least until a lawful decision is made. Hence, the applicant is protected insofar as the costs are concerned until at least the letter of 10 September 2014 was received. Thereafter, an applicant is entitled to a little time in which to consider the ramifications of the later letter and to consider whether the judicial review proceedings should continue, to include, where appropriate, a suitable provision for the payment of costs. Thus protected, there is no prejudice suffered by the applicant from the Tribunal considering the subsequent letter providing that, in doing so, the applicant is afforded sufficient time to consider it and it is not unfair for the Tribunal to express its views about its lawfulness.

16.

  This is a necessary corollary of its determination that the earlier decision was unlawful. If the earlier decision is quashed, it would normally be appropriate to direct that the respondent makes a fresh and lawful decision. If, however, a fresh and lawful decision has already been made, there is no point in requiring a further decision which would, of necessity, replicate what has already been decided. Accordingly, it is necessary to look at the decision of 10 September 2014 in order to determine the appropriate remedy. If the decision of 10 September 2014 merely replicates the error of the original decision, the respondent's position is advanced no farther and the appropriate remedy is to direct that the respondent must make a fresh and lawful decision.”

Applying that approach, UTJ Jordan made an order quashing the original decision in that case, but he declined to grant any further relief on the basis that the supplementary letter constituted a distinct decision which was itself unimpeachable. He said, at para. 26 of his judgment:

“Having quashed the order [this must be a slip for “decision”] of 9 March 2013, I make no order for any further relief. Whilst, technically, this permits the applicant a further challenge to the decision of 10 September 2014, the practical consequences of this decision are that no such challenge has a viable prospect of success.”

He awarded the applicant her costs up to the date of the supplementary letter.

Thirdly, further material – whether in the form of evidence or arguments – may have been brought to the Secretary of State’s attention which requires her to reconsider her original decision, irrespective of whether it was valid when first made: the material may relate to subsequent developments or it may have been available from the start but simply not supplied. One example, though not the only one, is where in the papers lodged with the judicial review claim the claimant relies on material which was not deployed previously. In principle the point could be taken that material that was not before the decision-maker was inadmissible for the purpose of a challenge to that decision (though the position is not so straightforward when Convention rights are in play), but it is common experience that the Secretary of State often chooses to address the new material by way of a supplementary decision. Although this too as a matter of analysis constitutes a fresh decision, it is rendered necessary not because of any defect in the previous decision but as a result of the supply of further material. I will refer to cases of this kind as “new material” cases. How to handle such cases is the subject of some consideration in the well-known decision of this Court in R v Secretary of State for the Home Department, ex p Turgut [2000] EWCA Civ 22, [2001] 1 All ER 719. Neither of the present cases is of this kind.

I should, for clarity, identify a fourth type of case, namely where the Secretary of State explicitly acknowledges that her original decision was defective but simultaneously makes a fresh decision to the same effect. I would not describe the letter conveying the fresh decision in such a case as “supplementary”, and so far as I know the Secretary of State does not do so either. However, the situation would not seem to be essentially different from that considered in Turgut: the original decision has been superseded, albeit for a different reason, and the tribunal has to decide whether to allow the validity of the fresh decision to be determined in the context of the existing proceedings.

Those categories are clear enough conceptually but they can often be blurred in practice. Although the term “supplementary” might be more apt to the provision of further reasons (Footnote: ⁹), as opposed to a fresh decision, what is described in a particular case as a “supplementary letter/decision letter” may fall into any of the three categories identified above, or all of them on alternative bases. For example, the Secretary of State’s position may be – though it will rarely be spelt out in quite this way – (a) that her original decision was lawful and properly reasoned; but (b) that if it was inadequately reasoned the further reasons contained in the letter will cure that defect; but (c) that if it cannot be so cured the letter constitutes a fresh decision such that the claimant is not entitled to any substantive relief. She should not necessarily be criticised for hedging her bets in this way: it will sometimes be genuinely debatable whether the original decision is invalid. The position will be further complicated if the claimant has sought also to rely on new material and the letter has to deal with that. It will be for the tribunal to decide in any particular case whether the letter takes effect in any of the ways identified above.

The issue is the extent to which in either case the Upper Tribunal relied on the supplementary decisions. I take the cases in turn.

Judge Southern analysed Ms Caroopen’s challenge as twofold – (a) that the Secretary of State had failed to consider material considerations, namely the factors that rendered it unreasonable for Jenna to be removed to Mauritius, given that she had lived in this country for over eight years (see para. 6 of the judgment); and (b) that even if she had her decision was one which was not rationally open to her (see para. 8).

As regards the first argument, the Judge noted at para. 11 of his judgment that there had been both an initial decision – or rather four decisions, one for each member of the family – and a supplementary decision (as he termed it, echoing how it was described in the Grounds of Defence), but he did not expressly consider the relationship between them: so far as appears, it was not suggested to him that the supplementary letter ought to be ignored. However in the remainder of that paragraph and paras. 12-14 he focused on the initial decisions. He acknowledged that the decision in Jenna’s own case ignored the crucial factors, but he pointed out that those factors were expressly considered in the decision relating to Ms Caroopen: see para. 11 above. He said, at para. 14:

“It can be seen from that decision [sc. the initial decision relating to Ms Caroopen] that even if issues such as length of residence and questions of the best interests of the children were not engaged with in the decision letters relating to the children, they had plainly been addressed as part of the overall decision making process”.

It would seem to follow that the challenge was rejected without reference to the supplementary letter at all. However, the Judge went on at paras. 15 and 16 to record a number of submissions from Mr Hays, among them that “the supplementary decision … is … a complete answer to the claim”, and at para. 17 he says that he accepts those submissions.

Turning to the second argument, i.e. that based on perversity, the Judge begins para. 18 of his judgment by setting out an extensive passage from the supplementary letter. But it does not feature in the reasoning that follows (which I need not set out here, though I do so at para. 84 below). It is in fact hard to see how the terms of either letter could be directly material to a case based on perversity rather than on a failure to have regard to particular matters: the essence of a perversity case is that the decision is one which was not rationally open to the decision-taker, and the details of how he came to make it are ultimately irrelevant.

It will be apparent from the foregoing that there is some ambiguity about whether the Judge’s reasoning materially depended on the supplementary letter, despite the references that he made to it. I think the better view is that it did not; but, as will appear, the answer is not determinative of the appeal.

As we have seen, in Myrie, unlike in Caroopen, a specific objection had been raised to the Secretary of State’s reliance on the supplementary letters, and Judge Coker tackled the question fully in her judgment. After reciting the procedural history and summarising counsel’s objections, at paras. 10-19 she gave her reasons for accepting Mr Saini’s submission that the supplementary letters could not be used to cure the defects in the original decision. In essence she followed the reasoning of UTJ Jordan in Kerr, though she found support for her approach also in the decision of Green J in R (Hafeez) v Secretary of State for the Home Department [2014] EWHC 1342 (Admin). As already noted, she rejected Mr Hansen’s submission that the letters merely elucidated and elaborated the original decision, so that all three could be regarded as part of a single decision; but she held that they were potentially relevant to the issue of relief if the original decision was quashed. In support of the latter point she said, at para. 18:

“Considerations of pragmatism in immigration proceedings require letters issued subsequent to either the issue of an application for permission or the grant of permission to be admitted into consideration. To refuse to do so would result in unnecessarily repetitive, proceedings that would result in inordinate delay, lack of certainty for an applicant and significantly increased costs to no avail.”

The Judge accordingly proceeded, at paras. 20-24 of her judgment, to consider the lawfulness of the original decision without reference to the supplementary letters. She held that it was unlawful, saying at para. 23:

“The decision did not engage with the specific matters put forward by the applicant which did not fall into the generality of claims made of family life or private life which involves the interrelationship between the applicant and her sister and her sister’s children. There were letters from the children which indicated a close bond and it behoved the respondent to at least engage with the scenario put forward.”

She then proceeded to consider the question of relief. Applying the approach in Kerr (subject to one point which I consider at para. 47 below), she held that the supplementary letters, unlike the original decision, gave valid reasons for refusing Ms Myrie’s application and that accordingly no relief should be granted. The relevant passage from her judgment reads:

“28.

The applicant has not identified any matters that have not now been considered by the respondent on the basis of the evidence that was before her and simply asserts that the later two decisions remain unlawful. Although the applicant asserts that they have not been admitted into evidence, they plainly exist and there must be consideration whether they are relevant as to remedy given the discretionary nature of judicial review. 

29.

The later two decisions consider and engage with the evidence and information that had been placed before the respondent. They do not ‘cure’ the first decision of its unlawfulness but plainly address all the matters that had previously not been addressed by the respondent.

30.

Judicial review is a discretionary remedy. It is plain from the later two letters that the applicant’s case has now been considered and the representations/evidence she submitted have been considered. In the light of my findings at [28] and [29] above this claim must fail.”

Consistently with that approach, at paras. 31-32 of her judgment the Judge awarded Ms Myrie her costs up to a point three weeks after the date of service of the Summary Grounds of Defence (which is when she first received the supplementary letters), but awarded the Secretary of State her costs from that point onward. As regards the latter period, she observed, at para. 31:

“The applicant has, by the production of the two later letters achieved full consideration of application, which is no more than she could have expected had those two later letters not been produced.”

Although she does not say so in terms, the three weeks evidently represented her estimate of a reasonable period for Ms Myrie to consider whether her challenge should be continued in the light of the supplementary letters which she had received for the first time with the Defence.

Ms Myrie’s grounds of appeal and skeleton argument settled by Mr Saini are quite discursive, and I will not quote them verbatim here. The essential point advanced is that Judge Coker was wrong to refuse relief on the basis that the Secretary of State had made an unimpeachable decision subsequently. She avowedly did so as an exercise of judicial discretion, and Mr Saini referred us to statements in the authorities and the academic literature to the effect that the discretion to refuse relief where a decision has been held to be unlawful is very limited. For example, para. 18-47 of De Smith’s Judicial Review (7^th ed) says:

“… [T]he requirements of the rule of law mean that ‘the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow’” (Footnote: ¹⁰).

Mr Saini contended that it was not, absent exceptional circumstances which were not present here, a proper exercise of judicial discretion to rely on a supplementary letter so as refuse to quash a defective original decision in the immigration and asylum field. He advanced various supporting arguments, which I will identify so far as necessary in my discussion below.

Only one of Ms Caroopen’s Grounds of Appeal (ground 3 – for the other grounds see para. 65 below) was directed to this issue. It reads: “the UT erred in law in dismissing the Appellant’s judicial review claim on the basis of the supplementary decision issued by the Secretary of State on 15 July 2014”. But before us Mr Malik was content to rely in support of this ground on the submissions made by Mr Saini, which both embrace and go further than the points made in the skeleton argument settled by Ms Caroopen’s solicitors.

I start with two preliminary points.

First, although Judge Coker in Ms Myrie’s case broadly followed the approach of Judge Jordan in Kerr, it is important to note one difference. In Kerr Judge Jordan did grant the claimant relief, to the extent that he quashed the original decision of the Secretary of State; but what he declined to do was to order that the decision be re-taken – see in particular para. 16 of his judgment. In Ms Myrie’s case, however, Judge Coker appears not to have quashed the original decision. The difference is formal rather than substantial. The substance of the Tribunal’s decision in both cases was that the claimant’s application for leave to remain had been lawfully refused, but only because of the later decision contained in the supplementary letter; and that was reflected in both cases by the terms of the order for costs. The real question raised by this part of the appeal is whether it was legitimate for it to determine the lawfulness of the subsequent decision in the context of proceedings which had been brought in order to determine the unlawfulness of a prior and different decision. It is on that question that I shall focus in what follows. However, I think I should say that in a fresh decision case the course taken in Kerr will be generally correct. If the original decision was unlawful the default position is that it should be quashed: that reflects the reality of what has occurred and is in accordance with principle. I do not rule out the possibility that in a particular case or class of case there may be a good reason for leaving the original decision in place but no such reason was identified in the cases before us.

Secondly, it is important always to bear in mind the different purposes which a supplementary letter may serve, as identified at paras. 30-32 above. If I may say so, Mr Saini in his skeleton argument and oral submissions showed a tendency to cite authorities without sufficient attention to the kind of subsequent letter or decision with which they were concerned. In Myrie, to which his submissions were addressed, we are quite clearly dealing with a fresh decision case: although the Secretary of State had argued that the supplementary letters could be relied on as further reasons for the original decision, Judge Coker rejected that argument and it was not sought to be revived before us. The position in Caroopen is not so clear-cut because the issue was not addressed, but in the end nothing turns on this.

I think it best to start with my conclusion before addressing the counter-arguments. In my view, where in judicial review proceedings a court or tribunal (from now on I will say “tribunal” for short) holds that the decision originally challenged in those proceedings is unlawful, it is open to it to consider whether a fresh decision to the same effect, made subsequent to the commencement of proceedings, is valid, for the purpose of deciding whether to order that the original decision be re-taken. In short, I agree with the reasoning in Kerr. That accords with what I believe to be the long-standing practice of not only the Upper Tribunal but also the Administrative Court. It makes practical sense, for the reasons succinctly stated by Judge Coker at para. 18 of her judgment in Myrie (see para. 40 above). If the tribunal simply quashed the original decision and declined to reach any conclusion about the validity of the fresh decision, the claimant would (at least if he or she disputed the lawfulness of that decision, as they typically would) have to start proceedings all over again, with all the attendant cost, delay and waste of the tribunal’s resources. It is obviously more efficient and sensible for the tribunal which has the case before it, and has acquired the necessary understanding of the facts, to dispose of all related issues so far as possible. Of course there may be cases where for some particular reason the lawfulness of the fresh decision cannot be fairly disposed of in the same proceedings as the challenge to the original decision, but I would expect such cases to be rare.

In this connection I should emphasise one point made in Kerr. At para. 26 of his judgment (see para. 31 above) Judge Jordan says that although it would be technically open to the claimant to challenge the subsequent decision the practical consequences of his reasoning were that such a challenge would not be “viable”. That is important, because if the claimant could indeed mount a further challenge, the advantages in terms of finality of deciding the validity of the supplementary decision in the context of the first claim would be lost. But I would put the obstacle to any such further challenge in more specific terms: in my view it would be liable to struck out on the ground of issue estoppel, since the tribunal will have already held, as its reason for refusing to order that the original decision be re-taken, that the supplementary decision was valid.

Correctly understood, this approach does not engage the principle stated in the passage from De Smith relied on by Mr Saini. The tribunal is not withholding relief on discretionary grounds: the original decision is quashed. All that is happening is that the Court is declining to order that the decision be re-taken, because that has already occurred and it has decided that the fresh decision is valid. The claimant has received exactly what he or she is entitled to, namely a valid decision. There is nothing in that that undermines the rule of law.

I turn to the various objections canvassed in the submissions before us.

I start with the objection that it is wrong in principle that a binding determination of the validity of one decision – that is, the fresh decision – should be made in the context of proceedings issued to challenge a different decision. But the answer to that objection is that in a case of this kind the tribunal is not formally concerned with a challenge to the fresh decision in its own right. Its validity comes in issue only collaterally, because of its relevance to the issue of relief.

In connection with that point I did at one stage consider whether the situation was analogous with that considered by this Court in Turgut, to which I have referred at para. 32 above. That was a case to which Mr Saini devoted much attention in his skeleton argument, and I should accordingly say why I consider that it is immaterial for our purposes. The applicant was challenging the Secretary of State’s decision to return him to Turkey notwithstanding his claim that he would be subjected to torture. In the course of the proceedings the Secretary of State made a number of further decisions in response to further representations and evidence filed by the applicant. Some concern was expressed in argument in this Court about the procedural response to that situation. In his judgment Schiemann LJ, with whom the other members of the Court agreed, said, at pp. 735-6:

“Sometimes the Secretary of State will seek permission to adduce evidence to the effect that he has considered the evidence filed by the applicant and that he has made a new, second, decision in the light of that evidence. Where that new decision is in favour of the applicant the case is usually disposed of by consent. Where however the second decision is to the same effect as the first decision and the applicant challenges the legality of the second decision the question then arises as to what is the proper approach of the court. Further litigation on the first decision will generally be pointless. In general it will be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings. The applicant may apply for permission to amend his application for permission so as to substitute the new decision and generally the court will grant such an application.”

It will be seen that what Schiemann LJ was considering in that passage was fresh decisions prompted by new evidence – in other words, what I have called a “new material” case. In such a case the Secretary of State accepts (though she may not always do so explicitly) that, while the original decision may have been right when made, debate about its validity is “pointless” because it has been superseded by the need to make a fresh decision on the basis of the new material. The formal focus thus changes to the new decision (whence the need for amendment). By contrast, in a case of the kind with which we are concerned the Secretary of State continues to maintain the lawfulness of the original decision (with or without the assistance of further reasons), and the relevance of the further decision is, as I have said, only to the issue of relief. Turgut remains of some background relevance in as much as it shows a general willingness on the part of this Court to allow procedural flexibility, but the detailed analysis is different.

Mr Saini placed a good deal of weight on Ermakov. That is fair enough in a true “further reasons” case, though, as appears from para. 30 above, there is no universal rule against the admission of further reasons. But it will be clear from my endorsement of the reasoning in Kerr why I regard Ermakov as irrelevant in the case of a fresh decision. (Footnote: ¹¹) In his judgment in Ermakov Hutchison LJ mentioned some policy reasons for not permitting a defective decision to be saved by the admission of subsequent reasons, in particular that to do so would encourage a sloppy approach by decision-makers and give rise to case-management problems (see p. 316 c-d). Those considerations do not weigh heavily in a fresh decision case. In such a case the original decision is quashed and the Secretary of State is generally found liable for the costs of the proceedings up to the date of the fresh decision: that is a significant adverse consequence of having made an invalid decision first time round. As for case-management problems, in a case of the kind which we are concerned with here any such problems should not be serious, and they are far outweighed by the cost and inconvenience of requiring the parties to go back to square one.

Mr Saini referred to the line of cases generally identified by reference to the judgment of Ouseley J in R (Rathakrishnan) v Secretary of State for the Home Department [2011] EWHC 1406 (Admin). In Rathakrishnan, following the grant of permission to apply for judicial review, the Secretary of State explicitly withdrew the decision under challenge and undertook to make a fresh decision. She invited the claimant to withdraw his challenge, but he refused and instead sought a stay of proceedings on the basis that they could be revived when and if he wished to challenge the new decision: he relied on Turgut. Ouseley J made it clear that such an approach was (save in exceptional circumstances) wrong in principle and that the correct course was for the proceedings to be discontinued and fresh proceedings started when and if a fresh decision were made which the applicant wished to challenge. The relevant passage from his judgment reads:

“9.

It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications, including payment of fees, for the purposes of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application. Such a process has occurred in cases where permission has been granted or a renewal hearing is awaited, with the upshot being a series of letters which may or may not constitute the decision letter, further representations often addressed to the court rather than the Secretary of State by way of unamended grounds of challenge, amended grounds of challenge which are expressed in skeleton arguments without formal amendment and real difficulty for the court in knowing what is the focus of the challenge, what are the grounds that are relied on and what material can lawfully be admitted in order to show that there was an error of law. And due fees are left unpaid.

10.

It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation.

11.

This appears to be the consequence of a misunderstanding of what the Court of Appeal said in Turgut. In Turgut the court was concerned to avoid an unduly procedurally complex process where, at the time the court was dealing with a particular decision, there had been a further decision by the Secretary of State upon which the Secretary of State was relying instead and against which the claimant was seeking to raise the same or additional points of challenge. Where, at the particular point where the court is considering a case, there has been a further decision on which the Secretary of State relies and the claimant has already formulated his reasons as to why that is unlawful, it may be appropriate for the court to deal with the fresh decision requiring a formal amendment, with undertakings to pay appropriate fees if necessary, and to consider whether during the course of that amendment process the claimant's challenge to the new decision does, in fact, show an arguable error of law in it. That is merely sensible use of court time. That is what the Court of Appeal in Turgut was suggesting.

12.

... Turgut was not and did not purport to be authority for a general proposition that where proceedings challenging a decision of the Secretary of State on a purported fresh claim had begun, those proceedings are to remain on foot or stayed until such time as any further challenges to further decisions which may be issued at future dates have been finally concluded. That, for the reasons which I have given, would be a recipe for muddle and has already contributed to muddled litigation over fresh claims.”

He went on to cite in support of that approach the decision of this Court in R v Secretary of State for the Home Department, ex p Alabi (unreported, 5.2.97).

Rathakrishnan has been applied on many occasions in the Administrative Court: we were referred also to R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin) (HHJ Pelling QC), R (Aminzada) v Secretary of State for the Home Department [2015] EWHC 4024 (Admin) (Walker J) and R (Yousuf) v Secretary of State for the Home Department [2016] EWHC 663 (Admin) (Holman J). It has also been referred to with approval in this Court: see R (A) v Chief Constable of Kent Constabulary [2013] EWCA Civ 1706, per Beatson LJ at para. 83, and R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, per Lloyd-Jones LJ, at paras. 76-80, both deprecating “rolling judicial review”. Mr Saini’s submission was that the approach evinced in those cases was equally applicable in the present case.

Since the hearing of the appeal this Court has, in R (Hussain) v Secretary of State for the Home Department [2016] EWCA Civ 1111, considered Rathakrishnan and to some extent modified the guidance given by Ouseley J, emphasising the need for procedural flexibility: see paras. 13-27 in the judgment of Sales LJ, though I see nothing in his judgment inconsistent with the concerns expressed in A and in Tesfay about rolling judicial review. But in any event the kind of case with which we are concerned is different. In Rathakrishnan the Secretary of State had withdrawn the original decision and not yet made a fresh decision, whereas in the cases before us there has been a further decision and the validity of both that decision and the original decision are in issue – the original decision because it is the target of the claim and has not been withdrawn, and the latter decision, albeit collaterally, because of its relevance to relief. Accordingly different considerations arise. Indeed Ouseley J made a similar point himself in distinguishing Turgut: see the reference in para. 11 of his judgment to the fact that in cases of the kind there being considered “at the particular point where the court is considering [the] case there has been a further decision on which the Secretary of State relies and the claimant has already formulated his reasons as to why that is unlawful”.

Mr Saini referred to the line of authority to the effect that in a case where a decision has been found to be legally flawed a Court should be slow to refuse relief on the basis that the same decision would inevitably have been made if it had been taken properly. But that too is a quite different situation. There is no need to speculate because the decision-maker has already made a fresh decision.

Finally, I should briefly mention a point raised in Ms Caroopen’s skeleton argument. This relied not only on Ermakov but on some observations in the judgment of Beatson J in R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The passage in question (paras. 45-46) sounds a warning note about the Secretary of State at a late stage in proceedings withdrawing vulnerable decisions which are the subject of challenge in order to avoid an unwelcome precedent and points out that in an appropriate case the claim may be allowed to proceed notwithstanding that withdrawal. I would not want to dissociate myself in any way from those observations; but, again, they are directed at a wholly different situation. In cases like the present the Secretary of State’s subsequent decision is designed to preserve the original decision or in any event to procure the same outcome: in an Omar-type case the validity of the challenge is accepted.

In summary, I would reject the submission that there is anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge. They may be effective in any one of three ways identified above. Ms Anderson sensibly acknowledged in her oral submissions that their use was “sub-optimal”, but in the real world they will often prove the most pragmatic response to the risk that the original decision may be held to be defective or to have been superseded by subsequent developments. But I am not to be taken as saying that that will always be the right course. If in a particular case the reliance by the Secretary of State on a fresh decision incorporated in a supplementary letter will lead to serious problems it remains open to the tribunal to decline to consider it and to require it to be challenged in other proceedings.

Since drafting the foregoing I have seen a draft of the judgment of Beatson LJ. There are two points on which it might be helpful if I were to say something further. The first concerns what he says at paras. 94 and 95. I respectfully agree with him that the Secretary of State should when writing a supplementary letter state explicitly what her stance is about its relationship with the original decision: the vague formula about reading the one together with the other is not helpful. I do not resile from my acknowledgment at para. 34 above that there will be cases where it is legitimate for her to assert the validity of the original decision while giving further reasons and/or making a further decision on a precautionary basis. But I suspect that in many cases if the Secretary of State is required to face up to the question rather than fudge it she will have to acknowledge that the initial decision was defective and make what is unequivocally a fresh (and thus not “supplementary”) decision: if she does, the case will fall into the fourth category which I have identified at para. 33 above. The second point concerns what he says at paras. 101 and 102. I agree that considerations of the kind there identified may well constitute reasons why claimants may legitimately object to the tribunal determining the validity of a fresh decision: they are the kinds of reason that I had in mind in paras. 49 and 61 above. I say at para. 49 that I would expect such cases to be rare. As I read it, Beatson LJ thinks that they may be more common. I am happy to accept that I may be wrong about that. Whether I am will depend partly on how often claimants do in fact choose to object (which may in turn depend on how ready they are to incur the cost of fresh proceedings) and partly on the judgments made by tribunals about what course is fair in the circumstances of the particular case before them.

In Myrie Judge Coker approached the case in essentially the way that I have endorsed above. She found that the original decision was defective but she declined to order the Secretary of State to re-take it because there had been a fresh decision that she held to be unimpeachable. For the reason given at para. 46 above, I think that she ought to have quashed the original order, and I would allow the appeal to the extent of making an order to that effect. But that victory does not undermine the substance of the Judge’s decision, namely that Ms Myrie was not entitled to leave to remain pursuant to her application of 7 March 2012. There is in her case, unlike Ms Caroopen’s, no challenge to the substance of the fresh decision if the Upper Tribunal was entitled to take it into account; and my conclusion on this point, if My Lady and My Lord agree, disposes of the appeal.

As for Caroopen, the issue of the effect of the supplementary letters only arises if the original decision was defective. As noted at para. 38 above, I do not think that the Judge held that it was. However, if the issue does arise the correct analysis depends on the reason why the original letter was defective. If the defect consisted only in the fact that the decision letter in Jenna’s case contained no consideration of paragraph 276ADE (iv) (see para. 11 above) I would regard the supplementary letter as sufficient to cure that defect on a “further reasons” basis. That is because the points that it makes had all in substance been made at the time of the original decision, albeit in a letter ostensibly concerned with Ms Caroopen’s case and without explicit reference to paragraph 276ADE (iv). For that very reason, however, the question whether the supplementary letter could be relied on as a fresh decision cannot in practice arise: since the two letters make substantially the same points, either both are defective or neither. For reasons that will appear, I need not take this point any further.

Four grounds of appeal are pleaded in Caroopen. Ground 3 concerns the use of supplementary letters, which I have already addressed. Mr Malik accepted that he could not pursue ground 2, which concerned the version of paragraph 276ADE applicable at the date of the decision, because the point had been conceded in the Upper Tribunal. Ground 1 is, to paraphrase, that UTJ Southern wrongly applied a Wednesbury approach to the Secretary of State’s decision (or decisions) rather than deciding for himself whether the article 8 rights of Ms Caroopen and her family would be breached by the denial of leave to remain. Ground 4 is on analysis essentially a development of ground 1, setting out the various factors relating to Jenna’s best interests which it is said that the Judge was obliged to take into account in making his own decision on article 8.

It follows that there is in practice a single (remaining) ground of appeal in Ms Caroopen’s case. I start by identifying the approach which the Upper Tribunal was obliged to take to the review of the Secretary of State’s decision and will then consider whether UTJ Southern did in fact take that approach.

In practice the claims of Ms Caroopen and her husband and son stand or fall on Jenna’s rights, as a child who at the date of the application had lived in the UK for eight years, and I will henceforward refer to Jenna as if she were the primary claimant.

I should note by way of preliminary that Jenna’s claim is primarily based on paragraph 276ADE (iv) of the Rules, so that on the face of it the issue is whether it is “reasonable” to expect her to leave the UK. However paragraph 276ADE is avowedly intended to give effect to the article 8 rights of applicants (so far as regards their private life), and in my view it follows that the question of reasonableness must be treated as the vehicle for an assessment, in accordance with article 8, of the proportionality of removal and thus also that the nature of the review must correspond to that which would apply to an assessment made explicitly under article 8. Although the point was not explicitly discussed, this was clearly the common assumption in the recent decision of this Court in R (MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705, [2016] 1 WLR 5093, which concerned both paragraph 276ADE (iv) and section 117A (6) of the Nationality, Immigration and Asylum Act 2002 (which also has a “seven-year rule” as regards children): see, e.g., at paras. 29 and 44 of the judgment of Elias LJ.

Ms Caroopen’s skeleton argument, and Mr Malik in his oral submissions, relied on a number of authorities about the correct approach to the proportionality issue in the context of an article 8 challenge. Mr Staker did not take issue with Mr Malik’s essential analysis, though he suggested that it required some qualification. Despite the absence of any fundamental dispute, I think I ought to go through the principal authorities in a little detail, partly in order to establish the context for resolving such difference as there was between Mr Malik and Mr Staker but partly also because the question of the correct approach in these cases is of some general significance.

The starting-point is that it is well-established that in the context of a statutory appeal against an immigration decision of the Secretary of State which is said to be in breach of the appellant’s Convention rights the tribunal must decide that issue for itself. That was authoritatively decided by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167. At para. 11 of the opinion of the appellate committee (p. 187 B-C) Lord Bingham said:

“… the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”

The present case is not of course concerned with a statutory appeal but with an application for judicial review. But there have been a series of authorities which have made it plain that where Convention rights are in issue a similar approach is necessary in the judicial review context. Mr Malik placed particular reliance on a well-known passage in the judgment of Lord Hoffmann in Nasseri v Secretary of State for the Home Department [2009] UKHL 23, [2010] 1 AC 1, but it is convenient first to cite two passages from the decisions of the House of Lords in R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, and Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420, on both of which Lord Hoffmann explicitly relied. Both were claims for judicial review. At para. 30 of his speech in the Denbigh High School case (p. 116 C-F) Lord Bingham said:

“… [I]t is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time (Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 62-67). Proportionality must be judged objectively, by the court (Williamson, above, para 51).”

In her opinion in Miss Behavin’ Lady Hale said, at para. 31 (p. 1430H):

“The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.”

I return to Nasseri. The claim in that case was for judicial review of a decision of the Secretary of State to remove an asylum-seeker to Greece in alleged breach of his rights under article 3 of the Convention. Considering the correct approach to be applied to the review of the decision, Lord Hoffmann said, at para. 12 (p. 32 G-H):

“It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State's decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right.”

Lord Hoffmann then developed that point by reference to the decisions in the Denbigh High School and Miss Behavin' cases. He went on, at para. 14 (p. 33D):

“The other side of the coin is that, when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. That was the basis of the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which the question was whether the removal of a migrant would infringe his right to respect for family life under article 8.”

He then quoted the passage from Huang which I have set out above.

The actual issue in Nasseri, as indeed in the Denbigh High School and Miss Behavin' cases, was whether the claimant could rely on alleged procedural unfairness as a breach of his Convention rights; and accordingly the effect of Lord Hoffmann’s point that the court was concerned with the substance of Convention rights rather than with process was that the claims failed. But the passage which I have quoted from para. 14 of his speech explicitly recognises that the point cuts both ways, so that, where the issue raised by a judicial review challenge is whether there has been a breach of Convention rights, the Court cannot confine itself to asking whether the decision-making process was defective but must decide whether the decision was right.

The other decision to which Mr Malik attached particular weight is R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621. The two claims in that case were for judicial review of decisions of the Secretary of State to deny leave to enter to a spouse aged under 21, in alleged breach of the claimants’ rights under article 8: the decisions self-evidently interfered with the claimants’ family life, and the only issue was whether the interference was proportionate. The claims failed at first instance but were upheld in this Court and the Supreme Court. Lord Wilson, with whose judgment the other members of the Court except Lord Brown agreed, posed at the start of para. 46 of his judgment (p. 643F) the question “… what is the nature of the court’s inquiry ?” and answered it by quoting the passage from the speech of Lord Bingham in the Denbigh High School case which I have set out above. At para. 61 of her concurring judgment Lady Hale referred to the obligation of the Secretary of State to act compatibly with Convention rights and continued (p. 649 E-F):

“Of course, where delicate and difficult judgments are involved in deciding whether or not she has done so, this Court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached … .”

She referred to Denbigh High School and Miss Behavin'.

The importance of Quila is that it applies as a matter of ratio what in Nasseri had only been the subject of a dictum. It shows the other side of Lord Hoffmann’s coin in action: the effect of the disapplication, or in any event the modification, of the ordinary judicial review approach was to require a more intensive review under which the Court itself had to decide whether the interference with the claimants’ article 8 rights was proportionate.

Mr Malik referred us to several other cases in which the approach enunciated in Nasseri and Quila has been recognised and/or applied. I need not examine them in any detail, but they included R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161 (see the judgment of Sullivan LJ at para. 13); Khairdin v Secretary of State for the Home Department [2014] UKUT 00566 (IAC) (see paras. 50-56) (Footnote: ¹²); Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 (see my judgment at paras. 70-71); and R (SA) v Secretary of State for the Home Department [2015] UKUT 00536 (IAC) (see the full discussion at paras. 17-30 of the judgment of the President, McCloskey J).

As I have said, Mr Staker did not dispute the applicability of those authorities, but he said that they had to be read with the more recent decision of the Supreme Court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945. That case involved a judicial review challenge to the decision of the Home Secretary to exclude an Iranian politician, Mrs Rajavi, from entering the UK on the grounds that her admission would create a risk of serious damage to British relations with Iran and possible harm to British nationals. The claimant’s case was that Mrs Rajavi’s exclusion breached the article 10 rights of the parliamentarians and others who wished to meet her and hear her views. One of the issues was the correct approach for the Court to take to the Home Secretary’s assessment of the risk to British interests. Mr Staker referred in particular to the judgment of Lord Sumption, but the issue is also addressed in the judgments of Lord Neuberger and Lady Hale.

Before considering the judgments in Lord Carlile’s case itself I should set out a passage from the judgment of Lord Reed in the Supreme Court’s earlier decision in Bank Mellat v HM Treasury (no. 2) [2013] SC 38 & 39, [2014] AC 700, to which both Lord Sumption and Lord Neuberger referred. Bank Mellat was a case in which the Government sought to justify a decision to prohibit dealings with an Iranian bank by reference to the risk of terrorism. Having discussed the principle of proportionality in the Strasbourg case law (as well as elsewhere), Lord Reed observed, at para. 71 (p. 789 G-H), that it

“does not … entitle the courts simply to substitute their own assessment for that of the decision-maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs.”

He continues, later in the same paragraph, to say (p. 790 A-B) that

“the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend upon the context, and will in part reflect national traditions and institutional culture.”

There were passages to the same effect in the judgment of the majority.

In Lord Carlile’s case Lord Sumption, at para. 20 of his judgment, expressly approved the first of those two passages from Lord Reed’s judgment in Bank Mellat, saying that “no review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision-maker”. Lord Neuberger, at para. 67 of his judgment (p. 984 E-G), quoted both passages from Lord Reed’s judgment in support of a rather different proposition, namely that

“where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. That was made clear by all members of the appellate committee in Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420, paras 13, 24, 31, 44 and 97, applying R (SB) v Governors of Denbigh High School [2007] 1 AC 100”.

At para. 68 (p. 985 A-C) he said:

“Accordingly, even where … the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality.”

Lady Hale did not deal with the question in detail, but she said at para. 98 of her judgment (p. 992H), having referred to Quila:

“I have no doubt that it is for the court to make the proportionality assessment; but I have equally no doubt that on some parts of that assessment the court should be very slow indeed to disagree with the assessment made by the Government.”

Mr Staker did not articulate precisely in what way he contended that Lord Carlile’s case qualified the message of the authorities relied on by Mr Malik. In broad terms, however, he relied on it for the emphatic statement by Lord Sumption that the court’s function is always one of review. But that statement does not represent a departure from the previous authorities. In the Denbigh High School case, which is the origin of this line of cases, Lord Bingham himself made it clear that he did not regard the fact that the Court had to make its own, objective, judgment of proportionality as meaning that the exercise became “a merits review”: see the passage quoted at para. 70 above.

It is no doubt true that in Lord Carlile’s case, and indeed in Bank Mellat, the Court emphasised the respect that it was necessary to pay to the original assessment of the Secretary of State. That is unsurprising having regard to the nature of the considerations in play in those cases, involving as they did matters of foreign affairs and national security. Mr Staker submitted that the same emphasis on respect for the assessment of the decision-maker could be straightforwardly read across to cases of the present kind because of the important public interest in controlling immigration. I do not agree. I quite accept that great weight must be accorded to the policy assessments of the Secretary of State in the immigration field, as reflected in the Rules, but in taking decisions in the circumstances of an individual case a caseworker in the Home Office is not inherently better placed to make the necessary proportionality assessment than a specialist judge of the First-tier Tribunal.

I have for the reasons given reviewed the authorities in some detail, but in truth I do not think there is now any doubt about the approach which they say should be taken where a challenge is made by way of judicial review to the Home Secretary’s assessment of the proportionality of interfering with a claimant’s rights under article 8. The position was recently stated succinctly in R (Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020, [2016] 1 WLR 1961, which post-dated the decision in Lord Carlile’s case. In that case the appellants had brought judicial review challenges against the decision of the Home Secretary to certify under section 94B of the 2002 Act their claims that their removal pending an appeal against deportation would be in breach of their rights under article 8. At para. 33 of his judgment (p. 1973 B-F), with which the other members of the Court agreed, Stephen Richards LJ said:

“As to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights … . For that purpose, in an article 8 case such as the present, she has to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context: … . But as to the assessment of proportionality, the decision of the Supreme Court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945 shows that the court is obliged to form its own view, whilst giving appropriate weight (which will depend on context) to any balancing exercise carried out by the primary decision-maker.”

To say that there that there is no doubt about what the authorities say does not mean that what they say is entirely unproblematic. There has been considerable discussion both in the academic literature and in the case-law about the nature and extent of the difference between a proportionality test and “high-intensity” reasonableness review (Footnote: ¹³). In SA McCloskey J anticipated that this would be the subject of further developments in the law: see para. 30 of his judgment. But no such developments will be found in this judgment. These conceptual issues were not material to the ground on which the appeal was pursued, and we were not addressed about them.

The relevant passage in Judge Southern’s judgment reads as follows:

“19.

As I have said, Jenna did have to overcome the reasonableness test set out in Rule 276ADE (iv), notwithstanding the fact that she had established more than seven years’ continuous residence in the United Kingdom which, as Ms Qureshi correctly points out, is a period of significance which demands careful consideration. It is patently clear that the respondent had that in mind throughout these assessments, which were clearly carried out both individually and in respect of the family unit as a whole.

20.

The assessment of the position of Jenna had to be informed by her membership of the family unit because that was relevant, indeed highly relevant, to the question of whether it was reasonable to expect her to leave the United Kingdom. In my judgement the respondent was plainly entitled to conclude that it would not be unreasonable to expect Jenna to leave the United Kingdom and return to Mauritius with her family. The respondent went on to consider the circumstances of the family unit as a whole, and that given the construction of private life while unlawfully present because of a failure to return to Mauritius when leave expired, the continuing family ties with Mauritius and the proportionality assessment carried out in respect of a family none of whose members qualified for leave under the Rules, this meant that this was an application that fell to be refused. That was clearly a rational decision open to the respondent which does not disclose legal error on the basis of a failure to engage with the special status potentially attributable to the oldest child on the basis of the period during which she had been living in this country and attending school and becoming engaged with the community because those were all matters taken into account by the respondent.

21.

There can be no doubt from the material now presented on the applicant’s behalf that this is a diligent industrious and well-motivated family that works hard to play its full part in the local community. They involve themselves in charitable work and the oldest child in particular is doing well at school. But this application discloses no basis upon which to disturb the decision under challenge. For those reasons I find it impossible to avoid the conclusion that the respondent was entitled to make the decision that she did and there is no basis upon which to interfere with it. For those reasons the application for judicial review is refused.”

Mr Malik submits that in that passage the Judge consistently, and evidently advisedly, uses the language of conventional judicial review. The point of para. 19 is that the Secretary of State had in mind the essential consideration that Jenna had been in the U.K. for more than seven years. The point of the first half of para. 20 is that the position of the other members of her family was not an irrelevant consideration. In the second half of para. 20 the Judge concludes that the Secretary of State’s decision was “open to her”, was “rational” and “did not disclose legal error”. This is the classic language of rationality review and shows that the Judge did not approach the case on the basis that the proportionality of refusing Jenna leave to remain was a matter on which he had to form his own view.

In my view that submission is correct. Mr Staker submitted that it would be wrong to conclude that in every case where a judge used phrases of the kind relied on by Mr Malik he or she had failed to make their own assessment of proportionality. I see some force in that point. In particular, I agree that loose language inevitably creeps in from time to time, particularly where a judge is delivering an ex tempore judgment, and it is important to look at the substance of the reasoning process as expressed in the judgment as a whole. (Footnote: ¹⁴) But the language of the Judge in the present case could not have been more explicit, and I have found nothing in the rest of the judgment that demonstrates that, despite the language used, he had consciously undertaken the exercise of deciding for himself whether Jenna’s removal to Mauritius would be reasonable. Mr Staker also suggested that the submissions of the claimants’ counsel may have been framed in Wednesbury terms, and that it was not unnatural for the Judge to use the same language in responding to it. There may be cases where an apparent self-misdirection can be explained by reference to the terms of counsel’s submissions, but I do not think this is one of them. It is not in fact clear that Ms Qureshi framed her submissions in the way alleged, but even if she did I do not think that that could justify the Judge approaching his task in what was, on the authorities, a fundamentally incorrect way.

If it were nevertheless clear that the Judge would have reached the same conclusion if he had adopted the correct approach I would not allow the appeal. But I do not believe that that is so. Since the case will have to be remitted to the Upper Tribunal I will not say much. The issue of the reasonableness/proportionality of denying Jenna leave to remain will have to be carefully considered in the light of the recent guidance of this Court in MA (Pakistan). But certainly the fact that she had at the date of the decision lived in this country for nine years, from the age of eighteen months, had had all her education here and had never visited Mauritius or retained any family ties there will weigh heavily in the balance. (That would be all the more so if, as alleged in the grounds of appeal, she spoke no French, but the Judge drew attention to evidence that appeared to contradict that.) The Judge’s assessment of the contribution made by the family to the community would also be a material consideration in her favour.

I would allow the appeal in Myrie but only to the limited extent identified in para. 63 above.

In Caroopen I would allow the appeal and remit the case to the Upper Tribunal for reconsideration on the correct basis in law. I would, however, observe that since the original decision of the Secretary of State over three years have passed, and whatever the outcome of the present proceedings circumstances are likely to have changed materially. The parties may wish to consider a compromise under which the decision of 4 October 2013 is withdrawn on such terms as they may agree, with the current proceedings accordingly falling away, and a fresh decision being made which takes into account such further information as may be supplied.