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

An unappealed tribunal decision binds the Secretary of State as to what the tribunal decided. The Secretary of State cannot use the later grant-of-leave stage to revisit the tribunal’s factual or legal conclusions, or the adequacy of its reasons. The proper route for challenge is the statutory reconsideration procedure, subject to a material change in circumstances or another special feature.

A tribunal determination must be read sensibly, as a whole and in context. Where the grounds raised humanitarian protection and the tribunal expressly allowed the appeal under humanitarian protection protocols, inadequate reasoning did not permit the Secretary of State to disregard that part of the decision. The refusal to grant leave in accordance with the humanitarian protection policy was unlawful.

The claimant, a Zimbabwean citizen, challenged the Secretary of State’s decision to grant her discretionary leave rather than leave under the humanitarian protection policy. An Asylum and Immigration Tribunal had allowed her appeal against deportation, stating that the deportation notice was unlawful and allowing the appeal under humanitarian protection protocols and the Human Rights Convention.

The Secretary of State contended that the tribunal had decided the appeal on Article 8 grounds only and had not found that the claimant qualified for humanitarian protection under paragraph 339 C of the Immigration Rules. The central issue was whether the tribunal had in fact decided the humanitarian protection ground in the claimant’s favour.

1. The judicial review claim succeeded. The decision to refuse leave in accordance with the humanitarian protection policy was quashed. No declaration requiring the grant of humanitarian protection was made. The claimant was awarded her costs, subject to detailed assessment.
2. An unappealed decision of the Immigration Tribunal binds the Secretary of State. The Secretary of State cannot circumvent it by administrative decision, or revisit its soundness in law or fact or the adequacy of its reasoning. A material change in circumstances or another special feature may justify an exception, but none was established here. The proper means of challenge was an application for reconsideration under section 103A(1) of the Nationality, Immigration and Asylum Act 2002.
3. The tribunal’s determination had to be construed on a commonsense and straightforward basis, read as a whole and in context. The court considered what the tribunal understood itself to have to decide and what it did not have to decide. A tribunal must determine the grounds raised before it and give a written determination stating its decision and reasons.
4. The tribunal had been required to address the humanitarian protection ground. The claimant’s grounds referred to paragraph 339 C, the determination referred to the Immigration Rules and the Qualifications Directive, and the tribunal’s final decision expressly allowed the appeal under humanitarian protection protocols. That wording was a meaningful and significant separate basis of decision, notwithstanding the absence of detailed findings.
5. The tribunal’s reasoning might have been inadequate and could have constituted an error of law. That did not alter what it had decided, and the Secretary of State had not sought reconsideration. It would have been fundamentally unfair to deprive the claimant of the benefit of the favourable decision after the opportunity for reconsideration had passed.

This was a first-instance judicial review claim. The judgment records that the Asylum and Immigration Tribunal had allowed the claimant’s appeal on 30 July 2008. Neither party sought reconsideration of that decision for error of law.