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

Judicial review of a discretionary immigration policy remains concerned with legality, rationality and adequacy of reasons. Where a concessionary policy is directed at a defined class, its residual discretion must be assessed in the context of the policy’s purpose and scope. Compassionate circumstances alone do not require consideration under a policy with which the claimant has no material connection. Article 8 of the ECHR cannot convert a policy challenge into a free-standing human-rights claim. The court must not substitute its own view of whether exceptional circumstances justify leave. An independent Article 8 claim should be pursued through the procedure for further submissions under paragraph 353 of the Immigration Rules.

The appellant, an orphan from Kenya, lived in the United Kingdom with her aunt, who had acted as her parent. She challenged the Secretary of State’s refusal to grant indefinite leave to remain under the Family ILR policy, including its residual discretion for truly exceptional compassionate cases.

Munby J dismissed the application for judicial review, holding that neither the aunt nor the appellant fell within the letter or spirit of the policy and that the decision letter was adequate. The appellant appealed, arguing that the policy had been irrationally applied, that the reasons were inadequate, and that Article 8 was relevant. The Court of Appeal considered whether the policy or its residual discretion was engaged and whether the Secretary of State’s reasoning was unlawful.

1. Appeal dismissed by a majority. Hallett LJ delivered the principal judgment. Wilson LJ agreed in the result, although he regarded the decision letter as troubling and its reference to the absence of evidence as irrational when read literally. Ward LJ dissented and would have allowed the appeal and quashed the decision.
2. The Family ILR policy was a concessionary, one-off exercise directed to qualifying asylum-seeking family units forming part of the relevant backlog. The aunt had already obtained indefinite leave in connection with her successful asylum claim before the policy was introduced. She was therefore outside both its terms and its rationale. The appellant was not the child of a qualifying principal applicant. The policy and its residual discretion were consequently never engaged.
3. The residual discretion for truly exceptional compassionate cases had to be evaluated against the policy’s purpose and scope. Since the case was not analogous to the families for whom the policy was designed, refusal to extend the concession was not irrational, unreasonable or disproportionate.
4. The majority treated the decision letter, read in context, as conveying that the evidence did not establish exceptional circumstances of the kind required to justify departure from the policy. Although the letter could have been expressed more clearly, it sufficiently identified the decision and its reasons. Wilson LJ considered the reasoning inadequate in isolation but concluded that the policy’s inapplicability made the defect immaterial.
5. Article 8 could not overcome the fundamental defect that the claim rested solely on a policy which did not apply. The policy was not a comprehensive charter of rights and did not prevent the claimant pursuing an independent Article 8 claim. Any such claim should be advanced by further submissions under paragraph 353 of the Immigration Rules.
6. The court’s task was supervisory. It was not to decide whether exceptional compassionate factors existed or whether leave should be granted, but whether the Secretary of State’s decision was one he was lawfully entitled to make.

• Court of Appeal (Civil Division): [2009] EWCA Civ 1009. By a majority, the appeal from Munby J’s dismissal of the judicial-review claim was dismissed.
• Administrative Court, Queen’s Bench Division: Munby J dismissed the application for judicial review on 18 December 2008.