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

Extra-statutory immigration policies are interpreted objectively, according to the meaning a reasonable and literate person would give their language. A published policy stating what will normally occur preserves discretion to depart from that norm where the decision-maker takes account of the policy and has a reason for treating the case as abnormal.

Supplementary reasons supplied during a legal challenge may elucidate earlier reasons or constitute a fresh decision. They cannot retrospectively explain an earlier decision where that decision gave no relevant reasons. A lawful fresh decision with the same outcome may nevertheless require the refusal of relief under Senior Courts Act 1981, s.31(2A), where it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of the Secretary of State's refusal of indefinite leave to remain and grant of three years' discretionary leave. He had received two earlier periods of discretionary leave and contended that the Home Office discretionary leave policy normally entitled him to settlement after six years' continuous discretionary leave.

The original decision did not explain why settlement was refused under the policy. After permission for judicial review was granted on that ground, the Secretary of State issued a supplementary letter relying on the claimant's criminality as a reason to depart from the normal position. The central issues were the proper construction of the policy, whether the later letter could cure the original decision, and whether relief had to be withheld.

1. Claim dismissed. The decision of 21 March 2019 was unlawful, but the later letter was a lawful fresh decision with the same result. Relief had to be refused under s.31(2A) of the Senior Courts Act 1981.
2. Published extra-statutory immigration policies are construed objectively. The relevant discretionary leave policy did not make settlement automatic after six years' continuous discretionary leave. Its use of normally preserved discretion to depart from the ordinary outcome, provided the decision-maker considered the policy and had a reason to regard the individual case as abnormal.
3. The claimant fell within the transitional policy. In a normal case, a person granted three years' discretionary leave before 9 July 2012 would receive a further three years' leave and then indefinite leave to remain. A criminal conviction arising after the earlier grant could in principle justify departure from that norm.
4. The original decision failed to show that the policy had been considered and gave no reason for granting limited leave rather than settlement. It was therefore unlawful. The later reasons could not elucidate the original decision because there had been no relevant reason to elucidate.
5. Applying the categories in Caroopen v Secretary of State for the Home Department [2016] EWCA Civ 1307, the later letter was a fresh decision. Although its reasoning was limited, it identified the claimant's criminality, including a later custodial sentence, as a logically capable reason to treat the case as abnormal. It was legally adequate.
6. The lawful fresh decision made it highly likely that the outcome would not have been substantially different without the original failure to give reasons. No exceptional public-interest basis for disapplying s.31(2A) arose.

• Upper Tribunal (Immigration and Asylum Chamber): Permission for judicial review was initially refused on the papers but granted after an oral hearing on 18 October 2019, limited to the discretionary-leave-policy ground. The claim was dismissed, although the 21 March 2019 decision was held unlawful because it had been superseded by a lawful fresh decision.