Ewaen Sorae, R (on the application of) v The Secretary of State for the Home Department

A decision-maker need not reproduce or expressly cite the applicable policy if the decision, read with the relevant correspondence and reconsideration process, shows that the policy was in fact considered and applied.

Guidance permitting consideration of exceptional circumstances for an overstayer sets a high threshold. An example in a non-exhaustive list does not create an automatic entitlement to a favourable exercise of discretion. The decision-maker may reasonably conclude that stolen documents did not prevent a timely application where an application could have been made with an explanation and available evidence. A claimant who cannot meet an express evidential requirement under the policy suffers no material prejudice from any alleged failure to consider it.

The applicant sought judicial review of the Secretary of State’s supplementary refusal letter dated 5 November 2014. That letter maintained the refusal of his application for indefinite leave to remain as a Tier 1 (General) Migrant because he had made a valid application more than 28 days after his leave expired.

He relied on the theft in Nigeria of documents said to be required for the application. He contended that the Secretary of State had failed to apply the policy on applications from overstayers and had acted unfairly by delay. A proposed Article 8 challenge was no longer pursued. The central issue was whether the Secretary of State had considered and rationally exercised the exceptional-circumstances discretion under the policy.

1. The application for judicial review was refused. The Secretary of State had been entitled to maintain the refusal of indefinite leave to remain.

2. The relevant policy was not expressly cited in the supplementary refusal letter. That omission was not determinative. Read with the pre-action correspondence, the agreement to reconsider the earlier decision because of the policy issue, and the request for further evidence of exceptional circumstances, the letter plainly showed that the Secretary of State had considered the applicant’s case under the policy.

3. The Secretary of State’s conclusion that the theft did not amount to exceptional circumstances was rational. The applicant could have made an in-time application with an explanation for absent documents and the police report already available. Most of the supporting material concerned his United Kingdom business activities and could have been submitted in time.

4. The policy imposed a high threshold and its examples were non-exhaustive. Difficulties replacing documents following theft did not automatically require discretion to be exercised in the applicant’s favour. The Secretary of State was entitled to consider all the circumstances.

5. In any event, the applicant had not provided evidence of the date on which he requested replacement documents, as the policy required. Thus, even if the policy had not been considered, any error would have been immaterial because he could not satisfy its terms. Permission to appeal to the Court of Appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review of the Secretary of State’s supplementary refusal letter of 5 November 2014 was refused.

• First-tier Tribunal: the applicant withdrew his appeal against the administrative removal decision, accepting that he had not made a qualifying in-country human-rights claim.

• Secretary of State: the refusal of indefinite leave to remain was maintained on reconsideration after pre-action correspondence.