Zermani, R (On the Application Of) v Secretary of State for the Home Department

In an Article 8 private-life claim, a decision-maker must consider whether the applicant’s contribution to the community is relevant to the proportionality balance. A significant contribution may reduce the weight attached to maintaining effective immigration control, although this will affect the outcome only in relatively few cases. The decision-maker must distinguish the value of the applicant’s private life or voluntary work to the applicant from the value of the applicant’s work to the community. A decision outside the Immigration Rules need not repeat the full Article 8 assessment if the relevant issues were consciously addressed under the Rules, but the decision must demonstrate that they were considered. Failure to address a substantial and clearly raised issue is material where the court cannot say that the outcome was inevitable.

The claimant, an Algerian national who had remained unlawfully in the United Kingdom and had a criminal and adverse immigration history, sought judicial review of a refusal of leave to remain based on Article 8 private life. His application relied substantially on evidence from public and community figures describing his extensive voluntary work, value to local organisations and difficulty of replacement.

The original decision considered only paragraph 276ADE of the Immigration Rules. Following the grant of permission, the Secretary of State issued a supplementary decision considering the claim outside the Rules. The issues were whether the original failure was immaterial because refusal had been inevitable, and whether the supplementary decision rendered the claim academic or itself remained unlawful.

1. Claim allowed and decision quashed. The original decision was unlawful because it failed to consider the application outside the Immigration Rules. The error was material: given the evidence of the claimant’s exceptional community contribution and the difficulty of replacing him, it could not be said that the outcome would inevitably have been the same.
2. Under UE (Nigeria) v Secretary of State for the Home Department [2012] 1 WLR 127, community value is capable in principle of affecting the public-interest side of the Article 8 proportionality exercise. It may reduce the weight attached to maintaining effective immigration control in the individual case. The factor will rarely determine the outcome, and its significance depends on the detailed facts, including the extent of the contribution and the interference with private or family life.
3. The supplementary decision was also unlawful. It referred to the claimant’s friendships and voluntary work, but considered their value to him rather than his value to the community and the evidence that he would be difficult to replace. That issue was central to the application and grounds.
4. A decision-maker need not conduct a wholly separate repetition of the Article 8 assessment outside the Rules where all relevant issues have already been addressed under the Rules. However, following Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 and R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), that conclusion must be reached consciously and the decision must demonstrate that the necessary consideration occurred.
5. The matter was remitted for reconsideration. The court did not fetter the Secretary of State’s discretion or require consideration of any particular current circumstances.

The judgment records that permission for judicial review was initially refused on paper on 8 April 2014 but granted after oral renewal by HHJ McKenna on 11 August 2014. Following permission, the Secretary of State issued a supplementary decision dated 6 October 2014. The Administrative Court quashed the decision and ordered reconsideration.