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

Where an Article 8 claim fails under Appendix FM or rule 276ADE, the Secretary of State must still consider whether leave should be granted outside the Immigration Rules. The extent of the assessment and reasons depends on the circumstances. There is no threshold which removes the duty to address that discretion. Factors considered under the Rules, including lawful residence, immigration status and cumulative private and family life, may remain relevant to proportionality, although a near miss under the Rules does not itself justify leave. A decision may be upheld despite inadequate reasoning only if the outcome would inevitably have been the same. The Secretary of State’s failure to address the residual discretion and exceptional circumstances rendered the refusal unlawful.

The claimant, a Sri Lankan national, challenged a decision refusing him leave to remain. He relied on his private and family life under Article 8, including his long residence in the United Kingdom, substantial prior lawful residence, marriage to a British citizen and his wife’s established life and employment in the United Kingdom.

The Secretary of State concluded that the claimant did not satisfy rule 284, rule 276ADE or Appendix FM. The decision letter addressed the Immigration Rules but contained no separate consideration of exceptional circumstances or leave outside the Rules. The issues were whether such consideration was required and, if so, whether the refusal should nevertheless be upheld because the same outcome was inevitable.

1. Claim allowed. The decision dated 15 February 2013 was unlawful because neither the decision notice nor the accompanying letter demonstrated that the Secretary of State had considered the residual discretion to grant leave outside the Immigration Rules, exceptional circumstances or proportionality.
2. Appendix FM and rule 276ADE are not a complete code for Article 8. They operate with the relevant guidance and a residual discretion. The Secretary of State must address that discretion after an application fails under the Rules, although the extent of the assessment and reasons required depends on the case.
3. The guidance required consideration of all relevant factors when determining whether exceptional circumstances existed. The ultimate question was whether refusal would have unjustifiably harsh and disproportionate consequences. Cumulative private and family life, duration of residence and the proportion of lawful to unlawful residence could be relevant, even where those matters overlapped with the Rules.
4. The requirement was not necessarily a full or duplicated Article 8 assessment. The decision maker could conclude that the Rules had fully addressed the relevant issues, but the decision had to show that this question had been considered and explain the conclusion reached. A threshold question did not remove the duty to consider whether exceptional circumstances existed.
5. The court accepted that judicial review could be refused where the Secretary of State demonstrated that the outcome would inevitably have been the same. That test was not met. Comparisons with Ahmed v Secretary of State for the Home Department and Halleemudeen v Secretary of State for the Home Department could not establish inevitability because the factual combinations differed materially.
6. The reliance on Chikwamba v Secretary of State for the Home Department added nothing: the Secretary of State had not relied on the claimant’s ability to leave and seek entry clearance as the basis of refusal. The claimant received the costs of the judicial review, subject to detailed assessment, excluding the costs of preparing affidavits.

First-instance judicial review claim. Permission had been granted by Hickinbottom J. The claim was allowed and the refusal decision was quashed; permission to appeal was refused.