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

An immigration decision may comply with the rules yet be unlawful if the statutory discretion is exercised inflexibly and without regard to common sense, humanity and the individual circumstances. The decision-maker must confront the practical impact of removal on family life. Requiring a person who entered lawfully to leave the United Kingdom merely to apply from abroad for entry clearance may be manifestly disproportionate, particularly where the application failed for a technical payment defect and there is no question of queue-jumping. A fair and firm immigration policy does not require rigid application without justification in the individual case.

The claimant, a Jamaican national, had lived lawfully in the United Kingdom for several years and married a person settled here. Her application for further leave as a spouse was initially invalid because the accompanying cheque was dishonoured. A later application was refused because her leave had expired. The Secretary of State’s subsequent decision stated that she and her daughter were liable to removal, without considering the effect on family life or the practical need to apply for entry clearance from Jamaica.

The claim concerned whether that decision was unlawful as an unreasonable and disproportionate exercise of immigration discretion.

1. Permission and disposition. Permission to apply for judicial review was granted at the rolled-up hearing. The decision of 11 April 2008 was quashed. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment unless agreed.
2. The refusal was in accordance with the immigration rules because the original application was invalid when the cheque was not honoured and the later application was made after leave had expired. That did not end the matter. The Secretary of State’s discretion had to be exercised with a modicum of intelligence, common sense and humanity.
3. The absence of a formal removal direction did not prevent consideration of family life. Treating that absence as decisive elevated form over substance. The probable consequence of the decision was removal to Jamaica, followed by an application for entry clearance and a return to the United Kingdom.
4. The relevant question was the purpose of requiring departure and whether even the resulting limited interference with family life was reasonable and proportionate. The general need to maintain a fair and firm immigration system did not justify an inflexible policy which ignored the facts. The claimant had entered lawfully and had not attempted to bypass the entry-clearance system.
5. Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 concerned materially different circumstances, including an asylum seeker who had entered without entry clearance and conditions in Zimbabwe described as harsh and unpalatable. Its discussion of policy rationale therefore had little bearing on this case. The possibility that the husband could return to Jamaica, and that separation might be brief, did not itself justify the interference.
6. The decision was a thoroughly unreasonable and disproportionate application of policy and was quashed.

The judgment was a first-instance decision of the Administrative Court. The judgment records that Dobbs J had ordered the matter to an oral hearing, but gives no citation for that earlier decision.