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

A refusal of leave to remain under ECHR, Article 8 is unlawful where the decision-maker treats inapplicable Immigration Rules criteria as determinative and fails to address whether the individual circumstances require consideration outside those criteria. The decision need not be formulaic, but it must engage with a material possible exception.

A later, lawful decision cannot retrospectively cure the earlier unlawful decision. It may nevertheless be considered when deciding relief, so that a fresh decision need not be ordered. Requiring an unlawful overstayer in a precarious relationship to apply for entry clearance from the country of nationality will ordinarily be proportionate where there is a sensible reason for that requirement and no undue hardship is shown.

The applicant, a Jamaican national, had overstayed after entering as a visitor in 2001. In 2011 she married a British citizen and, in 2012, sought leave to remain on the basis of family and private life under ECHR, Article 8.

The Secretary of State refused the application on 9 March 2013. The refusal considered Appendix FM and paragraph 276ADE of the Immigration Rules, but did not consider whether circumstances outside those rules required a different Article 8 assessment. During the judicial review proceedings, the Secretary of State issued a supplemental decision dated 10 September 2014 which considered the applicant's family life and the option of an out-of-country spouse application.

The central issues were whether the original refusal was lawful, whether the later letter could be considered in deciding relief, and whether requiring an application for entry clearance from Jamaica was disproportionate.

1. The decision of 9 March 2013 was quashed. Although a decision-maker need not conduct a formulaic search for exceptional circumstances in every overstayer case, the original decision had concentrated on largely irrelevant Immigration Rules criteria and had treated their non-satisfaction as determinative. It did not engage at all with the possibility that the applicant's individual circumstances might require consideration outside those criteria. That omission made the decision unlawful.

2. The Tribunal rejected the submission that the supplemental letter of 10 September 2014 was barred by Ermakov, R (on the application of) v Westminster [1995] EWCA Civ 42. A later letter could not alter the unlawfulness of the original decision or retrospectively validate it. However, it could be considered when deciding the appropriate remedy. If it was a lawful and complete decision, there was no utility in ordering a further decision which would merely replicate it. The applicant remained protected as to costs until receipt of the later letter and had to be given a fair opportunity to consider it.

3. The later decision lawfully addressed Article 8. The finding that there were no insurmountable obstacles to the couple living in Jamaica was not irrational, but was not determinative. Applying Chikwamba v SSHD [2008] UKHL 40 and SSHD v Treebhowan and Hayat [2012] EWCA Civ 1054, the proportionality of requiring an out-of-country application was fact-sensitive and depended on whether there was a sensible reason for doing so.

4. There was such a reason here. The applicant had substantially abused the immigration system and formed her relationship while her status was precarious. No undue hardship from an application in Jamaica was established, and the evidence did not establish that the entry-clearance maintenance requirements would be met. It was therefore proportionate to require an application for entry clearance from Jamaica.

5. There was no duty to issue removal directions merely because the applicant said she would not leave voluntarily. The Secretary of State retained discretion as to the timing and priority of removal action. No further relief was ordered. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review of the Secretary of State's refusal of leave to remain dated 9 March 2013. The Tribunal quashed that decision but held that the later decision of 10 September 2014 was lawful and made no order requiring a further decision.