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

In judicial review, quashing an unlawful decision does not necessarily require further relief. Where a later decision is fresh, lawful and properly considers the claim, the court may refuse relief if remittal would be futile. The principle that a decision maker cannot repair an unlawful decision by relying on fundamentally different reasons does not prevent the court from treating a subsequent lawful decision separately. A person cannot require the Secretary of State to issue removal directions merely to create an appealable decision. Their issue remains subject to the Secretary of State’s discretion and relevant policies.

The applicant, a Jamaican national, entered the United Kingdom as a visitor in 2001 and overstayed. After marrying a British citizen, she applied for leave to remain as his wife. The application was refused in March 2013. Following requests for reconsideration based on Article 8 rights, a supplemental decision letter was issued in September 2014.

On judicial review, the Upper Tribunal quashed the March 2013 decision but granted no further relief. It treated the supplemental letter as a fresh and lawful decision and rejected a challenge based on the absence of removal directions. The applicant renewed her challenge, arguing that the two letters should not have been treated separately and that the Secretary of State was required to issue removal directions. The central issues were whether further relief would be futile and whether such a duty existed.

The renewed application was refused.

1. The March 2013 decision was unlawful and was properly quashed. That did not require a further order. The September 2014 letter was a fresh decision, and no error or unlawfulness in it was identified.
2. The principle in Ermakov, [1995] EWCA Civ 42, did not require further relief. The Upper Tribunal had not treated the original decision as lawful by substituting new reasons. It had quashed that decision and assessed the later decision separately. Since no error was identified in the later letter, a further challenge would have no prospect of success and remittal would be futile.
3. The Secretary of State was under no obligation to make removal directions at the applicant’s election. The decision whether, and in what priority, to make removal directions remained within her discretion, exercised in accordance with relevant policies. No lawful basis was shown for challenging the decision not to make them.

1. Upper Tribunal (Immigration and Asylum Chamber: quashed the March 2013 decision, made no order for further relief, treated the September 2014 letter as a fresh lawful decision, and rejected the challenge concerning removal directions.
2. Court of Appeal (Civil Division): [2015] EWCA Civ 965 refused the renewed application.