Peters, R (On the Application Of) v Secretary of State for the Home Department

Whether immigration leave is discretionary leave or leave outside the Immigration Rules is determined objectively from the contemporaneous communications and their factual and legal context. The decision-maker’s undisclosed intention is not determinative. Where an application plainly seeks discretionary leave and the circumstances support that form of leave, the decision-maker must make clear if a different form of leave is being granted. A plainly erroneous classification may constitute a mistake of fact or law and be legally irrational. Where continuity of leave depends on an apparent payment-related gap, the decision-maker must exercise a discretion informed by the relevant circumstances and applicable guidance.

The claimant sought judicial review of the refusal to grant indefinite leave to remain. She relied on six years’ continuous discretionary leave. The Secretary of State treated two earlier grants as leave outside the Immigration Rules and relied additionally on a 35-day interruption caused by an application being returned as invalid after payment was apparently not collected.

The challenge concerned alleged mistake of fact or law, unfairness, and failure to consider exercising discretion in relation to the interruption. The court had to determine the nature of the earlier grants and the proper approach to the alleged break in continuity.

1. The court preferred the claimant’s construction of the correspondence. The October 2010 grant, read objectively in its factual and legal context, was a grant of discretionary leave. The application had sought discretionary leave, the stated reasons were consistent with that form of leave, and the correspondence did not clearly communicate that leave outside the Immigration Rules was intended.
2. The later grant followed naturally from the first. It renewed the same leave on the same basis. Even if the first grant were ambiguous, the reasonable inference from an application that clearly justified discretionary leave was that discretionary leave was granted unless the contrary was made clear.
3. The Secretary of State’s contrary classification was plainly wrong. It involved a mistake of fact and/or law and was legally irrational or Wednesbury unreasonable. The decision was quashed, and the court declared that the claimant had been granted discretionary leave throughout the relevant periods.
4. The fairness challenge did not strictly arise. The judge nevertheless indicated that, if leave outside the Rules had been granted, the unclear communications and the claimant’s lack of knowledge of their significance would have made it unfair to rely on that classification without taking those matters into account.
5. As to the 35-day gap, the Secretary of State accepted that a fresh decision was required. She had to reconsider whether to exercise her discretion to rely on the apparent interruption, having regard to the circumstances of the attempted payment and the guidance in Basnet v Secretary of State for the Home Department [2012] UKUT 000113 (IAC). The court declined to determine that issue without evidence or prior consideration by the Secretary of State.

The judgment describes permission being granted on some grounds by His Honour Judge Bird and a renewed application being directed to a rolled-up hearing by His Honour Judge Raynor QC. The present court determined the judicial review at first instance.