Caroopen & Myrie v The Secretary of State for the Home Department

Where a tribunal finds that the decision challenged in judicial review is unlawful, it may assess a later fresh decision to the same effect when deciding whether a further decision must be taken. The original decision should ordinarily be quashed. This course is subject to fairness and procedural practicality.

In a judicial review alleging breach of article 8, the court must form its own objective view of proportionality. It must give context-appropriate weight to the decision-maker’s assessment, but must not confine itself to rationality review. Under paragraph 276ADE(iv) of the Immigration Rules, the reasonableness of requiring a child to leave is the vehicle for that proportionality assessment.

Johanna Caroopen and her family, Mauritian nationals, applied for leave to remain relying principally on the private-life claim of their daughter, who had lived in the United Kingdom for more than seven years. The Secretary of State refused the applications and later issued a supplementary letter addressing paragraph 276ADE(iv). Upper Tribunal Judge Southern dismissed their judicial review claim.

Debbie Myrie, a Jamaican national, relied on her relationship with her sister and her sister’s children in support of an article 8 application. Her original refusal did not engage with that family-life claim. Upper Tribunal Judge Coker held it unlawful but refused substantive relief because two later supplementary letters addressed the omitted matters.

The common issue was the permissible use of supplementary letters in judicial review. In Caroopen, the further issue was whether the Upper Tribunal had wrongly applied a Wednesbury approach to an article 8 proportionality assessment.

1. The appeals were allowed. In Myrie, the Court quashed the original refusal decision, but made no order requiring a further decision because the later fresh decision had lawfully dealt with the application. In Caroopen, the appeal was allowed and remitted to the Upper Tribunal.

2. Per Underhill LJ, with Black LJ agreeing, a supplementary letter may provide further reasons, record a fresh decision, or address new material. Where the original decision is unlawful and a later letter contains a genuinely fresh decision, the tribunal may determine that decision’s validity when deciding whether to require the original decision to be retaken. This is not an impermissible discretionary refusal of relief: the claimant receives a lawful decision. The original unlawful decision should nevertheless normally be quashed. A later challenge to the fresh decision would generally be barred by issue estoppel if its validity has already been determined.

3. That procedural flexibility does not permit unfairness. Beatson LJ stressed that the Secretary of State should identify whether a later letter supplies reasons or makes a fresh decision, and should serve it promptly. A tribunal should not determine a fresh decision within existing proceedings where late service or other circumstances prevent the claimant from dealing with it fairly.

4. In an article 8 judicial review, the court must determine proportionality for itself. It may review primary facts on conventional public-law grounds, but it cannot uphold an otherwise impeccable process if the interference with Convention rights is disproportionate. Appropriate weight must be given to the Secretary of State’s assessment, particularly to immigration policy embodied in the Rules, but an individual caseworker has no inherent institutional advantage over a specialist tribunal in assessing an individual case.

5. The reasonableness inquiry in paragraph 276ADE(iv) is the means by which proportionality is assessed. UTJ Southern asked only whether the Secretary of State’s conclusion about the child was rationally open to her. He therefore applied the wrong test. On remittal, the child’s lengthy residence from early childhood, education, lack of ties with Mauritius, and the family’s community contribution were material to the proportionality assessment.

• Court of Appeal (Civil Division): allowed both appeals in [2016] EWCA Civ 1307 . It quashed the original decision in Myrie but did not require a new decision. It remitted Caroopen to the Upper Tribunal for reconsideration on the correct article 8 basis.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ Southern dismissed Caroopen’s judicial review challenge. UTJ Coker held Myrie’s original refusal unlawful, but declined substantive relief because later letters had addressed the omitted matters.