Supplementary decision letters do not undermine the rule of law, says Court of Appeal
The Court of Appeal in Caroopen & Myrie v Secretary of State for the Home Department [2016] EWCA Civ 1307 has issued fresh guidance on the way in which courts and tribunals should view so-called ‘supplementary letters’ (the Court is careful not to refer to them as ‘supplementary refusal letters’ at any point in its judgement).
Supplementary Letters
Supplementary letters – or supplementary refusal letters as they are known to most practitioners – are issued in cases where the Secretary of State has made a decision, the validity of which is then challenged by judicial review. Three main uses are identified in Caroopen as:
1. To supply reasons, or to elaborate on previous reasons, for the original decision in response to a criticism of the adequacy of the reasons given with that decision;
2. To prospectively fill in the gap in the decision making which would arise if the decision was found to be invalid, known as ‘fresh decision’ cases;
3. To address new material which has been subsequently brought to the attention of the Secretary of State.
Caroopen and Myrie
Both Applicants applied for leave to remain in relation to Article 8 of the ECHR, namely their right to a family and private life. In the case of the first Appellant, the Appellant had applied for leave to remain under paragraph 276ADE (iv) of the Immigration Rules, namely that the Appellant’s eldest daughter had been living in the UK for longer than 7 years. The second Appellant applied for leave to remain under Appendix FM, although in the Secretary of State’s decision letter, the decision was considered under private life, in paragraph 276ADE (vi), that she had no ties to her country of origin.
In both cases, the Appellants were not granted leave to remain by the Secretary of State. However, the reasoning in both decisions was found to be lacking, and the decision letters partially incomplete. A JR was brought, and the Secretary of State subsequently sent a ‘supplementary letter’ to the Appellant, detailing more complete grounds for the decision.
At the subsequent Judicial Review, both cases failed. In the case of Caroopen, the judge ruled that the decision, together with the supplementary letter constituted a valid decision. In Myrie, it was ruled that the reasons set out in the supplementary letter themselves constituted a valid decision.
The Court of Appeal
These decisions were subsequently appealed. Counsel for both Appellants submitted that the Upper Tribunal had erred in law by placing reliance on the supplementary letters.
Whilst being critical of the way in which the supplementary refusal letters had been drafted, the Court rejected the submission that there was anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge.
At paragraphs 49 and 51 the Court held:
“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 … It makes practical sense … 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 … 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.”
The Court also issued a warning to any claimants who may be tempted to commence separate proceedings to challenge a supplementary decision (paragraph 50):
“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.”
However, later in the judgment, the Court did also accept that in cases where the supplementary letter incorporates a fresh decision, it would be open to a Tribunal to decline to consider it and instead require it to be challenged in separate proceedings (paragraph 61):
“… in the real world [supplementary letters] 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.”
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