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

A discretionary immigration policy must be applied according to its stated eligibility criteria. A residual discretion to depart from the policy is reserved for truly exceptional compassionate cases and does not extend the policy to circumstances wholly outside its purpose and scope. A decision-maker may give brief reasons where the essential reason is clear and the decision shows that the material circumstances were considered. The court may assume the most stringent applicable standard of public-law review without deciding which standard governs, where the decision survives that standard. Article 8 cannot remedy defects in a challenge confined to the policy decision when no free-standing Article 8 claim is advanced.

The claimant, an orphan from Kenya, sought judicial review of the Secretary of State’s refusal to grant her indefinite leave to remain under the Family ILR policy. Her aunt had been recognised as a refugee and granted indefinite leave before the policy was introduced. The claimant arrived in the United Kingdom in 2002 and lived with her aunt, who acted in loco parentis.

The Secretary of State rejected the application on the basis that the aunt was already entitled to indefinite leave and that neither applicant fell within the policy. The claimant challenged the decision on eligibility, adequacy of reasons, irrationality, unreasonableness and disproportionality. There was no free-standing Article 8 claim.

1. Application dismissed. Neither the claimant nor her aunt fell within the letter or spirit of the Family ILR policy.
2. The aunt’s asylum claim had been decided in her favour on 24 July 2000. The Secretary of State decided on 13 December 2000 to grant her indefinite leave to enter as a refugee. The later issue or receipt of documentary confirmation did not postpone that decision. She therefore fell within none of the policy’s eligibility limbs, including the limb concerning a favourable asylum decision followed by limited leave.
3. The policy was intended to benefit qualifying family units and granted the very status which the aunt had already obtained. The claimant was not a dependant within the policy’s definition. Her close relationship with her aunt did not bring either of them within the policy or make the case a near miss.
4. The decision letter gave adequate reasons. Although brief, it made clear that, accepting the claimant’s circumstances, the Secretary of State found no exceptional or compassionate grounds sufficient to justify departure from the policy. There was no obligation to provide further reasons explaining or justifying that reason.
5. The refusal of residual discretion was not irrational, unreasonable or disproportionate. The case concerned circumstances wholly outside the policy’s purpose. Assuming, without deciding, that the most stringent standard of review applied, the decision satisfied it.
6. Authorities concerning Article 8 did not assist because no free-standing Article 8 claim was before the court. The court expressed no view on any future independent Article 8 claim. Permission to appeal was refused because the proposed grounds had no real prospect of success and raised no compelling reason for an appeal.

• High Court (Administrative Court): Permission for judicial review was initially refused on the papers, but was granted on renewal. The claim was subsequently dismissed.
• High Court (Administrative Court): Permission to appeal was refused because the proposed grounds had no real prospect of success and there was no other compelling reason for an appeal.