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

A public authority exercising immigration discretion must take account of material confusion caused by its own correspondence and must not fetter the discretion by applying a usual policy without considering the individual circumstances. Where an applicant’s appeal was reasonably pursued because of that confusion, the authority must consider the resulting consequences when deciding whether to grant further or indefinite leave. The court may quash an irrational or unfair decision, but should not compel the grant of indefinite leave where the statutory discretion remains with the decision-maker.

The claimant, an Indian national who had entered the United Kingdom as a work permit holder, sought judicial review of decisions refusing indefinite leave to remain and granting three years’ discretionary leave instead. His application under paragraph 134 of the Immigration Rules was refused because an absence caused by a motor accident interrupted the required continuous period. The defendant indicated that he could later aggregate leave, but correspondence suggested that he first needed to obtain further leave as a Tier 2 migrant. The claimant pursued an appeal and was granted discretionary leave following an Article 8 decision. He challenged the failure to grant indefinite leave or to reconsider the matter fairly.

1. Claim allowed in part. The decision of 19 June 2011, as explained by the letter of 30 September 2011, was quashed.
2. The Secretary of State had discretion to grant indefinite leave outside the Immigration Rules. The claimant’s application had been decided before 17 May 2011, so the original application could not simply be reconsidered as a continuing application under section 3 C of the Immigration Act 1971. New matters fell to be dealt with through the appeal process.
3. The Immigration Judge had been entitled to conclude that the claimant did not satisfy paragraph 134 because his residence was not continuous. Although the analysis in BD (work permit - “continuous period”) Nigeria [2010] UKUT 418 (IAC) had not been undertaken, that authority had not been cited and there had been no further appeal. The defendant nevertheless had to take the relevant findings into account.
4. The defendant had considered the claimant’s family circumstances and the consequences of the Immigration Judge’s Article 8 decision. However, the correspondence from March to September 2011 created and maintained the impression that a Tier 2 extension was required. That confusion reasonably contributed to the claimant’s decision to pursue the appeal and materially affected his position.
5. The defendant therefore failed to consider a material circumstance and unlawfully fettered the discretion by applying the usual policy for discretionary leave. The same matters alternatively amounted to a failure to deal fairly with the application.
6. A mandatory order requiring indefinite leave was inappropriate. The matter was left to the defendant to reconsider, taking the material findings into account. The defendant was ordered to pay the claimant’s costs, subject to the agreed qualification concerning the adjournment application.

The judgment records that permission to proceed on the irrationality ground, together with an extension of time, was granted by Mr John Bowers QC sitting as a Deputy High Court Judge on 16 May 2012. The present court was the first-instance judicial review court.