FATMATA TURAY (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

An immigration decision-maker is entitled to determine the application actually made and on the material supplied. Where an applicant for leave as a partner has unequivocally stated that the couple can live outside the United Kingdom, the decision-maker need not investigate whether there are, contrary to that statement, insurmountable obstacles to family life continuing abroad.

Immigration Rules paragraph 276ADE does not apply to an application unambiguously made as a spouse application rather than on private-life grounds. A brief refusal of discretionary leave is adequate where no basis for a grant other than asserted entitlement has been advanced. Post-decision material may be addressed in supplementary reasons, but a claimant who declines to amend the judicial-review challenge remains confined to the original decision and its factual matrix.

The applicant, a Guinean national who had remained unlawfully after her asylum appeal rights were exhausted, applied in November 2012 for leave to remain as the spouse of a British citizen. Her application stated that she and her husband could live together outside the United Kingdom if necessary.

The Secretary of State refused the application on 11 March 2014. She found that the applicant did not meet the partner requirements or the exception in paragraph EX.1. After permission for judicial review was granted, the Secretary of State issued a supplementary letter addressing material, including an HIV diagnosis, first supplied in the judicial-review proceedings.

The central issues were whether the original decision required further inquiry, consideration outside the Rules or under paragraph 276ADE, adequate reasons concerning discretion, and whether the supplementary letter could be relied upon.

1. The application for judicial review was dismissed. The refusal of 11 March 2014 was an adequate and apposite response to the application actually made and to the material then before the Secretary of State.

2. The applicant had expressly declared that she and her husband could live together outside the United Kingdom. There was therefore no proper basis for requiring the Secretary of State to investigate, contrary to that declaration, whether there were insurmountable obstacles to family life continuing abroad for the purposes of paragraph EX.1 of the Immigration Rules. Nothing in the application established a reason to consider that article 8 of the ECHR required leave outside the Rules.

3. Paragraph 276ADE was inapplicable at the threshold. The application was for leave as a spouse, not leave to remain on private-life grounds. The matters relied on to suggest absence of ties to Guinea, including the HIV diagnosis, had not been supplied before the impugned decision.

4. The reasons concerning discretionary leave were sufficient. No case had been advanced for a discretionary grant other than on the basis of entitlement. In any event, an error in that passage would not have justified relief.

5. A supplementary letter is not necessarily a new decision. In judicial review, supplementary reasons may pragmatically address material provided during the proceedings, ordinarily with the claimant adjusting the grounds if necessary. Here, however, the claimant chose not to amend her grounds and could not isolate the response to the HIV diagnosis from the supplementary decision as a whole. The Tribunal would have refused any amendment, since the diagnosis pre-dated the original decision and had not been disclosed by the applicant.

6. Costs were to follow the event in the respondent’s favour.

Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by His Honour Judge McKenna on 30 October 2014. The Upper Tribunal dismissed the challenge to the Secretary of State’s refusal decision of 11 March 2014.