R (on the application of Jennifer Kerr) v. SSHD IJR  UKUT 00493 (IAC) | Case Summary
In R (on the application of Jennifer Kerr) v. SSHD IJR  UKUT 00493 (IAC) the applicant was a citizen of Jamaica who entered the UK in May 2001 as a visitor. She had remained in the UK unlawfully following the expiry of her visitor visa. On 24 September 2011, she married her husband, a British citizen. About 12 months later she applied for leave to remain in the UK under Article 8 on the basis of the family life that she had developed with her husband in the preceding 12 months.
On 9 March 2013, the application was refused with no removal decision. The refusal letter considered Appendix FM and the requirements of R-LTRP.1.1, as well as paragraph 276ADE, neither of which had been relied on by the applicant. This was the only consideration provided pursuant to Article 8. There was no reference to whether the particular circumstances of the applicant might amount to an exception to the norm in accordance with the now established case law. The Upper Tribunal found that this rendered the refusal decision unlawful:
9. I do not consider that decisions of this type should be over prescriptive in their contents. If a person has entered the United Kingdom as a visitor and has overstayed, there can be no requirement that the decision maker has to go through the process of considering whether there are exceptional circumstances where there are none. This is not a formulaic exercise. However, where as here, the decision maker focused on a series of matters which were largely irrelevant, such as the position of a person who is under 18 or between the ages of 18 and 25 and treats the applicant's failure to meet those requirements as determinative, it is apparent that the decision does not engage with the fact that there may be circumstances beyond those considerations which a decision maker must acknowledge. It may only have required the briefest of references but, in this case, there was none. For this reason I consider that the decision of 9 March 2013 was unlawful.
Ordinarily, the decision having been set aside, the Home Office would have been directed to make a fresh and lawful decision. However, on 10 September 2014, in advance of the hearing before the Upper Tribunal and presumably in an attempt to save the earlier decision, the Home Office served a further decision which, they asserted, was supplemental and should be read in conjunction with the original decision. The Upper Tribunal rejected this line of reasoning:
14. 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.
However, whilst the later decision was not capable of rendering the earlier decision lawful, this did not prevent it from being a lawful decision in itself:
15. 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 … 16. … If the decision … 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.
The Upper Tribunal noted that the judicial review proceedings in the present case were justified at least until a lawful decision was made and the applicant would be protected insofar as costs were concerned until at least the letter of 10 September 2014 was received. However, thereafter, the applicant should consider the ramifications of the new decision and whether the judicial review proceedings should continue. The applicant would be afforded sufficient time to do so and this, together with the protection in terms of costs, meant that there would be no prejudice in the Tribunal considering the subsequent letter.
On the facts, the Tribunal found that the later decision was a lawful decision. It did not merely replicate the error of the earlier decision, but revealed a proper consideration of the applicant's claim arising from the fact that she married a British citizen with reference to Appendix FM with EX1 applied. The Tribunal concluded that the respondent's view that there were no insurmountable obstacles to the applicant and her husband continuing their family life together in Jamaica was not an irrational one.
The Upper Tribunal then went on to find that whether there were, or were not, insurmountable obstacles was in fact immaterial, since in their decision letter the respondent had considered the possibility of the applicant returning to Jamaica to pursue an out-of-country application for leave to enter as a spouse. The Tribunal held that this was 'unquestionably a lawful decision for the respondent to have made' (para. 20) following Chikwamba v. SSHD  UKHL 40 an SSHD v Treebhowan and Hayat  EWCA Civ 1054 (overturning Hayat (nature of Chikwamba principle) Pakistan  UKUT 00444 (IAC)):
22. Where an applicant has remained in the United Kingdom lawfully and establishes that she meets the requirements of the immigration rules for entry clearance in one capacity or another it may be disproportionate to require the applicant to return to the country of her nationality. If, in the case of a person with an exemplary immigration history, the consequences are likely to be losing her job in the United Kingdom, remaining and accommodating herself in a foreign country where conditions may be difficult and where she has established there is a prolonged wait for a decision and where the remaining spouse in the United Kingdom may have to give up his work to look after the children, the disruption and cost will impose a disproportionate burden if the only public interest in requiring the applicant to suffer those burdens is the bare requirement to make an out of country application which, on the evidence is bound to succeed. The amour propre of the respondent must give way to common sense. However, where an applicant has abused the immigration rules and has formed a relationship in circumstances conventionally described as being "precarious", there is a sound reason for requiring the applicant to make an out-of-country application as she would be required to do were she not to be unlawfully in the United Kingdom. If there is no evidence that any undue hardship will be caused by exercising this option, there is little that can be said to be disproportionate.
The Tribunal concluded at paragraph 23 that even if the reality of the applicant's future lay in the United Kingdom, it was open to the respondent to decide that it was not disproportionate to refuse the application for leave to remain under Article 8 where there was a viable and reasonable option of returning to Jamaica to make a lawful application for entry clearance. The decision of 10 September 2014 was therefore a lawful decision on the application for leave to remain outside the Immigration Rules and on the basis of the applicant's private and family life.