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Home Office Exercise of Discretion and Technical Errors

Is the Secretary of State under an obligation to consider whether to exercise his discretion outside of the Immigration Rules to grant leave to remain?

Yes. Since R (Behary & Ullah) v SSHD [2016] EWCA Civ 702, it has been good law that “There is an obligation to consider such a grant [outside of the Rules] when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support” [39]. The Court of Appeal was bound by this principle in the recent case of Asiweh v The Secretary of State for the Home Department [2019] EWCA Civ 13.

Asiweh had arrived in the UK on 12 September 2008 and held valid leave until it was curtailed to 29 August 2015, when the licence of his Tier 2 Sponsor was revoked and he received notice of the curtailment. The day prior to the expiry of his curtailed leave, Asiweh made an application outside of the Rules expressly asking the Secretary of State to exercise discretion to vary his leave. The application was certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. In the refusal letter it was clear that the Secretary of State had not considered exercising discretion.

The certification was challenged by way of judicial review, but permission was refused by Upper Tribunal Judge Jordan, who held that held that “there is no duty to make a separate decision under such residual discretionary powers as may exist”. This was clearly an error.

However the error was immaterial. The Court of Appeal concluded that had the Secretary of State turned his mind to deal with the material in support of the application for leave outside the Rules, it is inevitable that he would have come to the same conclusion. Requiring the appellant to leave before finishing his PhD did not amount to degrading and inhuman treatment under article 3. As for article 8, the appellant’s family could remain together and continue their education in Nigeria, the country of their citizenship. For these reasons only one view could be taken in relation to the claim: it was clearly unfounded.

Should technical errors be pursued?

No. In Asiweh, Mr Biggs for the appellant conceded that, “technical errors divorced from the factual merits of a case are rarely an appropriate basis for an appeal although there may sometimes be a proper ancillary purpose if it is disclosed and reasoned” [36].

Sir Ernest Ryder, the Senior President of Tribunals, went further in agreeing: “Technical errors should not be pursued when it is clear the case cannot succeed on its merits. It is a waste of both the appellant’s and the public’s resources” [36]. Irwin LJ concurred that pursuit of such technical points in cases devoid of merit also delays the resolution of cases with more merit [39].

Therefore, if you have received a refusal, you should ensure that you receive proper immigration advice regarding the merits of bringing a judicial review claim. While there may be technical errors to challenge in a decision,  if there is no merit in pursuing them you will only waste your time and financial resources and that of the court or tribunal.

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