Awan & Ors v Secretary of State for the Home Department

Where an immigration applicant does not satisfy the rules, the Secretary of State must still consider whether compelling circumstances justify leave under Article 8 and must exercise the residual discretion. A decision is not unlawful merely because it uses the phrase exceptional circumstances rather than compelling circumstances, or because it does not recite every fact in numerical order, provided the decision shows that discretion was exercised and the material circumstances were before the decision-maker. Limited reasoning may suffice where the relevant family and private-life circumstances were known.

The proposed applicant, a Pakistani national, sought discretionary leave to remain for himself and his family on Article 8 family-life and private-life grounds after his diplomatic employment ended. The Secretary of State refused the application because the family did not satisfy the immigration rules, retained ties to Pakistan, and presented no exceptional circumstances.

The Upper Tribunal, Immigration and Asylum Chamber, refused permission to apply for judicial review on 8 May 2014. Floyd LJ later refused the application on paper. The central issue before the Court of Appeal was whether the decision letter unlawfully failed to exercise the residual discretion, adequately consider the family circumstances, or give sufficient reasons.

Application refused. Lady Justice King refused permission to appeal. There was no reasonable prospect of success on the grounds advanced.

1. The irrationality ground was not arguable. King agreed with Floyd LJ that the applicant’s diplomatic status was expressly temporary, his circumstances were not exceptional on the material before the court, and the Upper Tribunal had no separate reason to address irrationality.
2. Failure to satisfy the immigration rules did not remove the Secretary of State’s residual discretion in an Article 8 case. The decision letter expressly considered whether the application raised exceptional circumstances. Although compelling circumstances was the more appropriate terminology, the wording used did not establish a failure to exercise discretion. The Secretary of State had, in accordance with Nagre v Secretary of State [2013] EWHC 720 (Admin), considered whether compelling circumstances justified leave outside the rules.
3. The limited detail in the decision letter did not make the decision unlawful. The relevant family circumstances had been set out in the application and were known to the decision-maker. The letter did not need to reproduce every factual matter or list all nine points in numerical order. There was therefore no error of law, irrationality, or material failure to consider the case.

The Court accordingly refused permission to appeal and ordered that the application be refused.

• Court of Appeal (Civil Division) — 12 November 2015: refused permission to appeal and ordered that the application be refused: [2015] EWCA Civ 1445.
• Court of Appeal, paper reconsideration — 12 December 2014: Floyd LJ refused the application on paper, finding no arguable irrationality or error of principle and no compelling reason for the appeal to be heard.
• Upper Tribunal (Immigration and Asylum Chamber) — 8 May 2014: Judge Warr refused permission to make an application for judicial review.