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

In judicial review proceedings concerning immigration refusal, a later lawful reconsideration decision may be considered by the court when determining the appropriate remedy for an earlier unlawful decision.

The Immigration Rules concept of insurmountable obstacles requires an assessment of the degree of difficulty faced by the family, not literal impossibility. British or EU citizenship does not prevent consideration of whether family life could continue outside the EU under Article 8, where the EU citizen would not in practice be compelled to leave the EU. Ties to the United Kingdom do not disprove ties to another country. The application was dismissed.

The claimant, a Jamaican national, had lived in the United Kingdom since 2001 with his British partner. His leave to remain had expired in 2002. The Secretary of State refused his application in a notice dated 1 March 2013. After judicial review proceedings began, she issued a further decision dated 13 January 2015 addressing medical and other matters.

The claim challenged reliance on the later decision, the assessment of the partner’s British and EU citizenship, the finding that there were no insurmountable obstacles to family life continuing in Jamaica, the assessment of the claimant’s ties to Jamaica, the Article 8 assessment outside the Immigration Rules, and the absence of removal directions.

1. Later decision. The 2015 Letter recorded a fresh decision rather than impermissibly supplementing the reasons for the 2013 Decision. If the earlier decision was unlawful but the later decision lawfully considered all relevant matters, there was no point in requiring a further reconsideration. This practice was commonplace in immigration cases.
2. EU citizenship and family life. Article 20 TFEU and the Zambrano principle prevent removal of a non-EU national where removal would require an EU citizen to leave the EU. That situation did not arise because the claimant’s partner was not dependent on him and would not be required to leave the United Kingdom. Under Article 8, however, her nationality remained relevant. It did not prevent the Secretary of State from submitting that she could relocate to Jamaica or from considering whether there were insurmountable obstacles to family life there.
3. Insurmountable obstacles. Paragraph EX.1 of Appendix FM did not require literal impossibility. The relevant assessment concerned the degree of difficulty faced by the couple. The Secretary of State had considered the partner’s medical condition and the available healthcare in Jamaica. The evidence supplied with the application did not adequately identify further obstacles concerning the partner’s son, employment, mortgage or Jamaican immigration status.
4. Ties and Article 8. The claimant had lived in Jamaica for 24 years and bore the burden of showing that he had no remaining social, cultural or family ties there. The Secretary of State was not required to counterbalance those ties against his ties to the United Kingdom. The Article 8 assessment outside the Rules disclosed no exceptional or compassionate circumstances producing unduly harsh consequences. The asserted certainty of entry clearance after return was unsupported.
5. Removal decision and outcome. The challenge concerning a right of appeal was not pursued. The relevant removal-decision policy did not apply and, in any event, disclosed no exceptional and compelling reason for making removal directions. The application for judicial review was dismissed. Even if the 2013 Notice had contained an error of law, relief would have been refused in light of the 2015 Letter.