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

A decision-maker considering exceptional or compelling reasons for indefinite leave to remain must assess the applicant’s evidence fully and fairly. In a case relying on mental-health evidence, the decision-maker must address the effect of immigration uncertainty on the applicant’s condition and treatment, rather than consider only the underlying history or the services objectively available. A general policy favouring staged grants of leave is relevant but cannot automatically outweigh cogent, individual evidence. Where the decision is materially flawed by failing to consider significant evidence, it should be quashed and reconsidered. The reviewing court should not itself conduct the final balancing exercise or assume that the same decision is inevitable.

The claimant, a Jamaican national with long-standing and serious mental-health difficulties, challenged the Secretary of State’s decision to grant a further 30 months’ leave to remain outside the Immigration Rules rather than indefinite leave to remain. She relied on medical evidence that uncertainty about her immigration status aggravated her condition and prevented effective trauma-focused treatment.

The challenge alleged failure to take relevant evidence into account and breach of Article 8. The central issue was whether the decision-maker had properly assessed whether the claimant’s individual circumstances amounted to particularly exceptional or compelling reasons for departing from the usual staged approach to settlement.

1. The judicial review succeeded. The decision of 11 October 2016 was quashed. The Secretary of State was required to make a fresh decision on the totality of the evidence.
2. The decision-maker failed to consider Dr Maloney’s first report. The report was absent from the listed material, was not referred to in the decision notice or GCID notes, and there was no indication that it had been read or considered.
3. The decision-maker wrongly treated the fact that the claimant’s mental-health problems pre-dated her immigration uncertainty as relevant against her. The issue was the effect of present uncertainty on her existing conditions and on her ability to engage in treatment.
4. The decision-maker also failed to engage with the medical evidence that uncertainty about immigration status was a significant factor explaining the claimant’s reluctance to accept available help. It was illogical to rely on that reluctance without considering its stated cause.
5. The reasoning that indefinite leave could not provide additional services was legally inadequate. The proper question was whether more secure status would alter the claimant’s perception of her circumstances and enable her to accept treatment that she was not presently taking because of perceived uncertainty.
6. The general policy favouring a probationary period and staged grants of leave was a relevant consideration. However, it could not automatically trump new and cogent expert evidence. R (Alladin & anr) v SSHD [2014] EWCA Civ 1334 was not a true analogy because it concerned generic disadvantages of limited leave, whereas the claimant’s difficulties were unusual and personal.
7. The Article 8 ground was not determined because the successful failure-to-consider ground made it unnecessary. The fresh decision was to be made after considering any further evidence submitted within 28 days, and communicated within three months of receipt of that evidence. Costs followed the event.

This was a first-instance judicial review in the Administrative Court. Permission was granted on 6 June 2017, with any rationality ground excluded. The court granted the claim, quashed the decision and directed reconsideration.