The Secretary of State for the Home Department, ex parte Zackrocki

When considering compassionate leave outside the immigration rules, the decision-maker must take account of the position and legally relevant interests of a British citizen who depends on the applicant’s care. Those interests must be weighed against immigration-control considerations. A conclusion that adequate alternative care can be arranged must have an evidential basis, especially where the responsible social services authority considers the proposed arrangements inappropriate or costly. If the decision-maker gives no substantial reason for rejecting that evidence, the refusal may be unreasonable in the Wednesbury sense and be quashed. Domestic public-law principles may resolve the issue without reliance on Convention rights.

The applicants were a Polish husband and wife in their sixties who had remained in the United Kingdom under successive extensions of visitor leave. They cared for the wife’s British brother, who had epilepsy, learning difficulties, disabilities and required constant assistance with daily living.

The Secretary of State refused further leave outside the immigration rules, finding no compassionate circumstances and asserting that adequate arrangements could be made in the United Kingdom, or that the brother could return to Poland. Hackney social services considered residential care inappropriate and costly and regarded the applicants as the best carers. The central issue was whether the refusal was lawful despite that evidence and the brother’s status as a British citizen.

The court considered that it was unnecessary to rely on the European Convention or the International Convention on Economic, Social and Cultural Rights. The issue could be resolved by domestic public-law principles.

1. The Secretary of State was entitled to consider whether compassionate circumstances justified action outside the immigration rules. He correctly recognised that the brother’s position had to be taken into account.
2. However, the decision-making record gave no weight to the brother’s status as a British citizen with rights under the laws and policies of the United Kingdom. It also contained no adequate balancing of those interests against immigration-control considerations. The court regarded the reasoning in R v Secretary of State for the Home Department ex-parte Ajayi (12th May 1994 - unreported) as providing a relevant parallel.
3. The Secretary of State’s assertion that adequate arrangements could be made lacked an evidential foundation. Hackney Borough Council had stated that residential care was inappropriate and costly. There was no evidence that the Secretary of State had consulted the authority, established workable alternatives or obtained substantial reasons for rejecting its assessment. The brother’s unwillingness to enter residential care or return to Poland, and the adverse effect of distress on his epilepsy, were also relevant.
4. The evidence from social services, supported by medical evidence, indicated that care by the applicants was the best solution and was consistent with the policy of Care in the Community. The refusal was therefore unreasonable in the Wednesbury sense and the Secretary of State’s decision was quashed.

1. Court of Appeal (Civil Division) — The court quashed the Secretary of State’s refusal of further leave as unreasonable in the Wednesbury sense. The supplied judgment does not state the lower-court decision or citation.