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

A decision on private-life representations must engage rationally and expressly with the material relied upon. A formulaic refusal under paragraph 276ADE, followed by an unreasoned assertion that there are no exceptional circumstances, is unlawful where substantial material relevant to Article 8 has not been addressed.

A later decision does not retrospectively cure the unlawfulness of the challenged decision. It may affect relief only if it is a fresh and lawful consideration of the relevant matters. Administrative error which has led an applicant reasonably to pursue an inappropriate process, and thereby affected her immigration position, is material and must be considered.

The applicant had leave as a student until October 2010 and had an offer of further postgraduate study. The Secretary of State mistakenly treated her as an asylum legacy-case applicant, although she had never claimed asylum. The applicant complied with requests for information and sought clarification before her leave expired.

After her leave had expired, the Secretary of State refused her representations outside the Immigration Rules in July 2013. The decision applied paragraph 276ADE and briefly concluded that there were no exceptional circumstances under Article 8. During the judicial review, the Secretary of State issued a further decision in June 2014 and contended that it removed any need for relief.

The central issues were whether the July 2013 decision was lawful and whether the June 2014 letter made a fresh lawful decision sufficient to defeat relief.

1. The application for judicial review was granted. The Tribunal set aside the July 2013 decision and summarily assessed the applicant’s costs at £6,925.

2. The July 2013 decision was unlawful. Although consideration of paragraph 276ADE produced predictable negative answers, the decision-maker was also required to consider whether the overall circumstances justified leave outside the Rules consistently with Article 8. The conclusion that there were no exceptional circumstances gave no reasons and did not engage with the substantial documentary material provided.

3. In particular, the decision did not address the consequences of the Secretary of State’s erroneous use of the legacy programme. The applicant had reasonably complied with official requests and had raised the impending expiry of her leave. There was a good arguable case that, had she instead made a timely student application, leave would have been granted. The error and its effect on her becoming an overstayer were material matters requiring consideration.

4. The June 2014 letter did not cure the defect. A later lawful decision could bear on whether relief should be granted, but it could not make the earlier decision lawful retrospectively. The later letter substantially repeated the earlier formulaic approach and again failed to grapple with the applicant’s case. It therefore did not provide a basis for refusing relief.

not stated in the judgment.