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

On 6^th June 2017 David Elvin QC (sitting as a Deputy High Court Judge) granted the Claimant permission to bring Judicial Review proceedings in relation to the Defendant’s decision of 11^th October 2016 to grant her 30 months leave to remain in the United Kingdom as opposed to the indefinite leave to remain she had sought. In granting permission, the Judge specifically excluded any ground relating to the rationality of the decision.

The Claimant has a tragic personal history. She is a Jamaican national who moved to this country in 2000. Prior to her relocating to the United Kingdom she had been abused by more than one person. She was further abused by her partner in this country until he was deported to Jamaica in 2006. She had two male children who have died young. The first was living in the USA and died leaving a number of young children behind him. The second, Gary Scott, was murdered in London when he was only 17 years old and at a time when he was living with his mother.

The Claimant’s relevant immigration history is as follows. On 14^th August 2000 the Claimant and her son Gary arrived in the UK as visitors on a six moth visa. Once that period had expired they remained here as over-stayers. In 2011 the Claimant and her son applied for leave to remain, which was granted on 25^th January 2013 for a period of 30 months. Initially it was granted on the basis that she was to have no recourse to public funds but thereafter (on 24^th July 2014) that limitation was removed. The Claimant’s son was later killed. Thereafter, on 16^th November 2016, the Defendant granted the Claimant a further 30 months leave to remain outside of the rules.

The challenge to the decision is brought on two bases. Firstly, that there was uncontested medical evidence that the Claimant had long-standing mental health difficulties and that her perceived uncertainty about her long-term immigration status was having a significant and deleterious effect on her treatment and possible recovery. It was submitted that the Defendant’s decision had not referred to or analysed that evidence properly and thus had not taken it into account. Secondly, that Article 8 is engaged and that failing to grant indefinite leave to remain breached the Claimant’s Article 8 rights.

The applicable law is agreed. The Defendant has under s3(b) Immigration Act 1971 a discretion to grant anyone indefinite leave to remain in the United Kingdom. She has this discretion whether or not the case of any claimant fits within the Immigration Rules. The grant of limited leave to remain in this case was initially made in 2014 under the Immigration Rules (paragraph D-LTRP1.2 of Appendix FM). The Rules provide that a person must spend 120 months in the United Kingdom with successive periods of limited leave under this category before being considered for indefinite Leave to remain (“ILR”) (IR para E-ILRPT1.3 of Appendix FM). In 2016 leave was granted outside of the Rules because, on the death of her son, the Claimant could not succeed within the Rules. The Defendant has published guidance on granting leave outside of the Rules in two documents entitled “Immigration Directorates’ Instructions Chapter 1 Section 14”, and “Appendix FM 1.0 Family Life and Private Life: 10 year routes”. The former document sets out that such leave should only be granted when “reasons are particularly compelling” (see para 1.2). The policy records that the grant of limited leave to remain under this policy should not “convey any expectation of further leave or eventual settlement” (see para 3.1.). The decision maker is to consider “each case on its merits” (see para 2.2) and grant leave outside of the Rules for “genuinely compassionate and circumstantial reasons” (see para 2.2). Leave is only to be given indefinitely if “the particular compelling circumstances of the individual case are such that it is almost certain that there will be no change in circumstances within five years” (see para 3.2). The latter document records that “unless there are truly exceptional reasons the expectation is that applicants should serve a probationary period of limited time before being eligible to apply for ILR”, but that ILR can be granted where there are “particularly exceptional or compelling reasons” to grant it. Further it sets out that “in cases not involving children there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain”.

Therefore, in this case the questions to be addressed by the decision maker were whether there were “particularly exceptional or compelling reasons” to grant ILR, which involved considering whether there was “sufficient evidence to demonstrate the individual circumstances [of the Claimant] are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from the standard grant of 30 months leave to remain”. This necessitated a careful consideration being given to all of the evidence presented to him/her including the medical evidence. The medical evidence was particularly important as it formed the basis for the Claimant’s assertion that she should be given ILR and not limited leave to remain (“LTR”). I shall look firstly to the medical evidence and then to the way in which it was summarised by the Defendant in her decision notice. I will then set out my conclusions.

The Claimant supplied the Defendant with three medical reports prior to her making the decision under review; those of Dr Bulkeley (a mental health psychologist) dated 30^th September 2014, Dr Maloney (a psychiatrist) dated 5^th September 2015, and a second report of Dr Maloney dated 5^th January 2016.

Dr Bulkeley’s report contained, inter alia, the following opinions and conclusions:

At 4.7.1, Dr Bulkeley recorded that the Claimant’s fear of being returned to Jamaica had not been alleviated significantly by the previous grant of limited leave to remain. He considered the difference between time-limited and indefinite leave to remain, stating that:

He continued:

Dr Maloney’s first report contained the following:

At 10.1, Dr Maloney referred to the Claimant’s uncertain immigration status. He then stated (at paragraph 10.4) that:

At paragraph 7.1 of his second report, he pointed out that the Claimant (after the death of her son) was now having an intense bereavement reaction.

He continued:

The decision notice clearly sets out the material read and relied upon by the decision-maker in reaching his/her conclusions. This included the report of Dr Bulkeley and the second report of Dr Maloney but not that doctor’s first report.

The medical evidence was dealt with in the decision notice in the following way:

The decision notice went on to point out that settlement in the United Kingdom is to be regarded as a privilege and not a right and that ordinarily anyone applying for Indefinite Leave to Remain is expected to go through a probationary period before being granted such a privilege.

I have been shown the GCID notes relevant to the taking of this decision. There is nothing in them which is suggestive of a more careful or thorough scrutiny of the evidence than is revealed by the decision notice itself. What is apparent from those notes is that initially the decision maker was minded to refuse altogether the application for further leave to remain – indefinite and time limited. That position was only changed after discussion with a more senior officer at the Department when limited LTR was granted. There is a significance to this which I shall deal with hereafter.

In my judgment, the decision notice reveals a number of errors of approach. Firstly, the list of materials read by the decision maker does not include the first report of Dr. Maloney. There is nothing in the way in which the decision notice is written to suggest that it was considered and nothing in the disclosed GCID notes of the decision making process to suggest that it had. It would be wrong to conclude in a case in which the decision maker has carefully listed the material relied upon in reaching her conclusion that she has read this report and failed to note it. I find that this report was not read and considered because (a) it was not referred to in the body of the report whereas other reports were, (b) it was not referred to in the GCID notes, and (c) there is nothing in the text of the decision notice suggesting that it had been read and considered.

Secondly, the decision maker has looked to the history of the development of the Claimant’s mental health problems recording she has had them since she lived in Jamaica. This is of no relevance. It is not the cause of the problems with which the decision maker should have been concerned but the effect that any uncertainty about the future will or may have on the problems which she undoubtedly has. The application for ILR is not based on an assertion that the mental health issues are a result of the uncertainty over her immigration status but on the assertion that her current status is preventing her being effectively treated for them. The decision notice is phrased in a way that can only mean that the decision maker has taken the long-standing nature of the mental health issues as being a sign that they will not be alleviated if her immigration status is made more secure. The one does not in any way follow from the other. Indeed, that conclusion is not supported by the medical evidence which suggests that the treatment of her mental health issues will be aided by certainty over her immigration status.

Thirdly, while the decision maker has identified from the reports that the Claimant is presently reluctant to receive the help that others are prepared to offer her, she has not recorded the fact that this is only one part of the conclusion in the reports. One of the messages from the reports is that the uncertain immigration status is at least part of the explanation as to why the Claimant has not availed herself of the help potentially available to her. It would be illogical to refuse her application for ILR on the basis that she has refused help if a reason for her refusal was based on her uncertainty as to her future. The decision takes into account only her failure to get help and not the reasons for it which are fully canvassed in the reports. The fact that this issue is neither properly identified or addressed in the notice leads me to conclude that the reports have either not been fully read or not properly digested: either scenario meaning that the decision has been taken without a full assessment of significant evidence.

Fourthly, the conclusion that the Claimant “has been granted access to public funds and it is unclear how she would benefit any further from a change in her current immigration status as it is open to her to access any relevant services and/or care” approaches the question to be decided from the wrong angle. The decision presupposes that as there would be no further services available to the Claimant were she to be someone with ILR, ILR cannot hope to benefit her in any way. When considering issues of mental health and its treatment, this is not the correct approach. One must consider whether the Claimant would see the world differently were she to have enhanced status and, if so, would she avail herself of help that she is not taking at present because of her perceived uncertainty as to her future. If her approach to the services available for someone with her conditions would or might change so that she is better able to accept that help, then a change in her current status would benefit her. That is so even if someone without her conditions might not have reacted in the same way to having only time-limited leave to remain.

Fifthly, the decision does not deal with the firm and repeated conclusions of the doctors that the uncertainties of the Claimant’s immigration status are having a significant impact on her mental health. It is one of the constant themes to these reports and one which is not referred to at all in the decision notice. The point was made on behalf of the Defendant at trial that this is not a challenge to paucity of reasoning. That is true but where such a fundamental and recurrent theme in the evidence is not addressed in the decision notice I am driven to conclude that it has not been considered. I conclude again that either the decision maker has not read the reports fully or has read them but failed to engage with their conclusions: either failing represents a significant flaw.

My conclusion is that the Defendant has failed properly to consider the evidence presented to her. She has not accurately summarised the significant factors set out in the reports and has not fully considered the conclusions of the medical expert witnesses. She has considered how an ordinary individual might react to being placed into the situation in which the Claimant finds herself and not how the Claimant actually reacted and how that will affect her into the future. The decision making process is flawed to the extent that the decision should not stand. I will quash it and it will have to be taken afresh.

I reach that conclusion having considered the argument of the Defendant that I should not allow the Claimant the relief she seeks as were I to quash the decision and order that it be re-made she would certainly reach the same decision. In making that argument the Defendant relies on the authority of R(Alladin & anr) v SSHD [2014] EWCA Civ 1334. It is pointed out that the court in that case decided that a staged approach to granting applicants leave to remain was a legitimate aim. In that case a number of potential disadvantages to having time-limited leave to remain were identified such as it being difficult to obtain visas for school trips abroad, a perceived difficulty with obtaining such things as a good job or a mortgage, a potential problem proving that the claimants had a right to access services such as those provided by the NHS in the period between the expiry of one time-limited period and the grant of another leave to remain, and difficulty in taking holidays abroad while a new grant of time was under consideration. The court considered these difficulties but reached the conclusion that the Defendant would have been forced to make the same decision again were the original decision to be quashed. They declined to quash the decision on those facts.

There is no doubt that the Defendant will be entitled on reconsideration of this case to take into account the desirability of a staged approach in cases such as this. That cannot mean that this one consideration will automatically trump all others. In particular it cannot mean that I should assume that a decision maker faced with new and cogent expert evidence will necessarily give that evidence (when looked at with the other expert evidence already considered by the Defendant) less weight than the policy of proceeding by way of a staged approach in most cases. I do not do that. It seems to me that there are a number of finely balanced considerations to be weighed up and it is not for me to undertake that task.

In any event, the case of Alladin does not provide a true analogy to this one. In Alladin the difficulties of having only limited LTR advanced for the court’s consideration were generic in that all or many claimants granted limited leave to remain would face some or all of them. Here the difficulties faced by this claimant are unusual and personal in nature. There are few people who have had the difficulties in life that she has faced and few who have mental health difficulties of the type that she still faces. It will be a matter for the Defendant in due course to decide whether those factors amount to “particularly exceptional or compelling reasons”. In making that decision she must look at the medical evidence fully and fairly. In deciding whether to grant ILR she is also entitled to take into account the understandable general policy that applicants are normally expected to serve a probationary period before being granted ILR. She will of course bear in mind when assessing the weight to attach to that policy the fact that the Claimant has already been in this country for some time (some of it as an over-stayer but also a significant period with leave). How far that reduces the weight to be given to the general policy will be a matter for her to weigh up and not me.

I have made my decision on the first ground of challenge. Having decided that it is made out, the Article 8 challenge adds nothing. I have been referred to the authority of Y v SSHD [2013] EWHC 2127, a first instance decision which suggests that the Article 8 challenge might be good also. That is a point that I do not need to decide.

I quash the decision. It is for the Defendant to make a fresh decision on the totality of the evidence.

The Claimant’s application for judicial review is granted, and the Defendant’s decision of 11 October 2016 is quashed.

The Defendant shall pay the Claimant’s reasonable costs, with said costs to be the subject of detailed assessment if not agreed.

A detailed assessment of the Claimant’s publicly funded costs shall be undertaken in accordance with the Civil Legal Aid (Costs) Regulations 2013.

The Claimant shall submit to the Defendant any further evidence upon which she wishes to rely in support of her request for Indefinite Leave to Remain, within 28 days of the sealing of this Order.

The Defendant shall make and communicate a fresh decision in respect of the Claimant’s request for Indefinite Leave to Remain, within 3 months of the receipt of any further evidence as described in paragraph 4 of this Order.