Bhavna Anilkumar Sharma, R (on the application of) v Secretary of State for the Home Department

A refusal of leave to remain is not unlawful where the decision-maker has considered the evidence relied on outside the Immigration Rules and the conclusion was reasonably open on that evidence.

A failure to make an appealable removal decision at the same time as refusing leave is not, without more, unlawful. Whether a later appealable decision is made is governed by the Secretary of State’s policy. Public law intervention requires circumstances capable of making the omission unlawful.

Delay in refusing to reconsider does not itself invalidate that refusal where it has not altered the factual basis for the decision.

The applicant, a Kenyan national and overstayer, sought judicial review of the Secretary of State’s decision of 10 January 2014 refusing leave to remain. Her application relied on Article 8, compassionate circumstances, her care for her mother, social and family ties in the United Kingdom, and psychiatric evidence concerning dependency and social phobia.

Permission was granted because the supplied decision appeared not to address Article 8 or the medical evidence. It later emerged that the applicant had omitted the second page of the decision, which expressly addressed exceptional circumstances and the psychiatric report.

The applicant also complained of an alleged continuing failure to decide representations seeking reconsideration. The Secretary of State refused reconsideration on 15 July 2015 and invited a fresh paid application. The central issues were whether the refusal and absence of an appealable decision disclosed public law error or unfairness.

1. The judicial review claim was dismissed. The decision of 10 January 2014 did not merely apply the Immigration Rules. It considered the applicant’s evidence outside the Rules, including the medical report, her mother’s care needs, other family members in the United Kingdom, her father in Kenya, and the availability of treatment in Kenya. The refusal was plainly open to the Secretary of State on the evidence and was consistent with established case law.

2. The Secretary of State’s failure to make an appealable decision at the same time as refusing leave was not unlawful. Bharadva [2010] EWHC 3030 (Admin) established that no such contemporaneous decision was required. Any later appealable decision was a matter for the Secretary of State under her policy. The applicant’s circumstances did not approach the exceptional or compelling level at which the omission could be unlawful on public law grounds.

3. The applicant had not amended her grounds to challenge the later refusal to reconsider. In any event, whether reconsideration was operationally expedient or appropriate was for the Secretary of State. The delay was to be deprecated, but it did not make the decision unlawful because it did not change the factual basis.

4. There was no unfairness in requiring a further paid application. The statutory scheme then allowed an appeal from a refusal of a human rights claim, and the applicant had already had her circumstances considered twice.

5. The applicant was ordered to pay the respondent’s agreed or assessed costs. Permission to appeal to the Court of Appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): The judicial review claim against the refusal of leave to remain and the alleged failure to make an appealable decision was dismissed.
• Secretary of State for the Home Department: On 10 January 2014, leave to remain was refused under and outside the Immigration Rules.
• Secretary of State for the Home Department: On 15 July 2015, reconsideration was refused and the applicant was invited to make a fresh application.