Debbie Ann Myrie, R (on the application of) v Secretary of State for the Home Department

A later immigration decision cannot make an earlier challenged decision lawful. Unless the documents properly form one combined decision, or the earlier decision has been withdrawn and remade, the earlier decision must be assessed on its own legality. Later decisions may nevertheless be relevant to the discretionary remedy in judicial review.

A decision-maker must engage with a specific and evidenced claim to family life and the interests of affected children under Article 8. A failure to do so renders the original decision unlawful. Relief may be refused where subsequent lawful decisions have fully considered the omitted material and no useful purpose would be served by remittal.

The applicant, a Jamaican national who had overstayed, sought leave to remain on the basis of private and family life under Article 8. She relied on her relationship with her adult sister and her sister’s children, including an asserted close bond comparable to a maternal relationship.

The Secretary of State refused the application on 28 June 2013. Permission for judicial review was granted on grounds including the alleged failure to consider that family life and the children’s interests. After permission was granted, the Secretary of State issued letters dated 24 July and 30 October 2014, expressed to supplement the original refusal.

The central issues were whether those later letters formed part of the challenged decision, whether the original refusal was lawful, and what remedy should follow if it was not.

1. The claim was dismissed, although the original refusal decision was unlawful. The Tribunal held that the refusal of 28 June 2013 did not engage with the applicant’s specific case about family life with her sister’s children. The material included the asserted close relationship and letters from the children. The respondent was required at least to engage with that scenario when considering Article 8.

2. The letters of July and October 2014 were not part of the original decision and could not render it lawful. The Tribunal agreed with the approach in R (on the application of Kerr) v Secretary of State for the Home Department [2014] UKUT 493 (IAC): a later lawful decision does not alter the unlawfulness of an earlier decision. The principle in Ermakov v Westminster City Council [1995] EWCA Civ 42, concerning statutory duties to give reasons, was not directly applicable to this immigration decision.

3. The later letters were, however, relevant to remedy. Judicial review relief is discretionary. They addressed the evidence and representations that had not been dealt with in the original refusal, and the applicant identified no outstanding matter requiring further consideration. A quashing order or remittal would therefore serve no useful purpose.

4. The respondent was ordered to pay the applicant’s costs up to service of the detailed grounds of defence and for three weeks afterwards. The applicant was ordered to pay the respondent’s costs thereafter, with costs to be agreed or determined by the Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): Jeremy Baker J and Upper Tribunal Judge Storey granted permission to bring judicial review of the refusal dated 28 June 2013. This judgment determined the substantive judicial review and refused relief after finding that later decisions had fully considered the omitted matters.