Joshua Tinashe Chirairo, R (on the application of) v The Secretary of State for the Home Department

An immigration decision-maker must either appeal a judicial determination affecting an applicant’s status or give effect to it. The authority cannot circumvent that determination by granting only short-term leave and later disregarding it.

A refusal may be set aside where it fails to explain a material difference between the applicant’s treatment and that of a closely comparable family member, particularly where the earlier judicial decision had required recognition of the applicant’s dependency position.

The applicant, a Zimbabwean national, sought judicial review of the Secretary of State’s refusal of discretionary leave to remain on 7 August 2013.

An immigration judge had allowed the applicant’s 2006 appeal, notwithstanding that he had turned 18, because his application had been made with those of his parents and sister and his dependency position otherwise matched his sister’s. The Secretary of State granted the family short-term leave but subsequently granted further leave to the parents and sister while refusing the applicant.

Permission was granted because the differing treatment of the applicant and his sister had not been adequately explained. The central issue was whether the Secretary of State had lawfully maintained that distinction.

1. The application for judicial review was granted. The decision under challenge was set aside.

2. The applicant’s first ground, based on Edgehill & another [2014] EWCA Civ 402, did not determine the result. Even if the decision had wrongly considered only the new immigration rules although the application had been made under the former rules, the applicant’s individual article 8 case would have been weak under the former rules.

3. The decisive issue was the unexplained inconsistency between the applicant and his sister. The Secretary of State’s later letter noted that the sister had originally received leave while still under 18, but did not address her further grant of discretionary leave in 2012, when she was nearly 22.

4. The 2006 immigration judge had determined that the applicant should receive leave in the same capacity as his father’s dependant. Whether that determination was correct was immaterial at this stage. The Secretary of State was required either to appeal it or to recognise it.

5. Instead, the Secretary of State granted the applicant a short period of leave, refused him further leave, and later disregarded the earlier determination without an adequate explanation. That was a clear disregard of the statutory appellate procedure. The refusal could not stand.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the Tribunal granted the application and set aside the Secretary of State’s decision of 7 August 2013.

• Permission stage: Permission was granted on 27 September 2014 because the different treatment of the applicant and his sister had not been properly explained.