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

A successful immigration appeal determines the application and period then before the tribunal. A finding that an adult child was a dependant for that limited purpose does not bind the Secretary of State on a later application requiring assessment of circumstances after that period.

A discretionary public-law power must not be exercised arbitrarily or partially. Identical, or sufficiently similar, cases may require a rational explanation for different treatment. However, adult siblings are not thereby like cases. Material differences in age, immigration history, lawful residence and evidence of dependency may justify different decisions without a separate explanation.

The respondent, a Zimbabwean national, had obtained a short period of leave after an immigration judge allowed his 2006 appeal as the dependant of his student father. He was refused further leave later in 2006 because he was over 18, did not challenge a further refusal in 2008, and thereafter remained without leave.

His sister had continued to hold leave as their father’s dependant and was granted discretionary leave in 2012. In 2013 the Secretary of State refused the respondent discretionary leave based on article 8 of the European Convention on Human Rights.

The Upper Tribunal allowed judicial review and quashed that refusal. It considered that the Secretary of State had disregarded the earlier immigration decision and had not explained the different treatment of the respondent and his sister. The Secretary of State appealed. The central issue was whether the earlier decision had continuing effect and whether the siblings’ circumstances were sufficiently alike to require a reasoned explanation for different treatment.

1. Appeal allowed. The Upper Tribunal’s finding that the Secretary of State had sidestepped or disregarded the earlier immigration decision was unsustainable. The earlier appeal concerned leave only until the father completed his course in July 2006. The Secretary of State granted leave beyond that period. The immigration judge’s finding that the respondent was then dependent on his father did not assess, and could not determine, his position after July 2006.

2. A discretionary public-law power must not be exercised arbitrarily or partially. Knowingly treating persons in identical circumstances differently may be unlawful unless there is a rational explanation. Likewise, circumstances that are sufficiently similar may require an explanation for adverse differential treatment. This was consistent with R v Secretary of State for the Home Department, ex p Zeqiri [2002] UKHL 3 and Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893.

3. That principle requires caution. Personal circumstances will commonly prevent two persons from being like cases, and rational decision-makers may reach different conclusions on substantially similar facts. The relevant comparison was at the dates of the respective decisions, especially the refusal under review in August 2013.

4. The respondent and his sister were not sufficiently alike to require the Secretary of State to explain their different treatment. When the respondent was refused, he was over 26, had been without leave since November 2006, and had supplied no evidence of exceptional dependency on his parents. His sister’s immigration history and age at the earlier decisions materially differed. Being adult siblings who wished to remain with their parents did not require identical immigration decisions or reasons addressing the disparity.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and set aside the Upper Tribunal’s decision: [2016] EWCA Civ 77.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Freeman allowed the respondent’s judicial-review application and quashed the Secretary of State’s refusal of discretionary leave (JR/141/2013).