Ngouh, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2218 (Admin)

[2010] EWHC 2218 (Admin)Case No CO/5981/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/08/2010
Before
MR JUSTICE FOSKETT
Between
THE QUEENClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Helen Mountfield QC and Samantha Knights (instructed by Immigration Advisory Service) for ClaimantAlexander Ruck Keene (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 9 July 2010
Judgment

Introduction

[1]The Claimant is a national of Cameroon where he was born and educated. He passed the International Baccalaureate and came to the UK in November 1991 at the age of 21 with leave to enter as a student in order to study (and thus advance his) English initially. That leave was subsequently extended until the end of November 2003. Shortly before the end of that extended leave he enlisted in the British Army and served for a total period of just less than 4½ years, including a 6-month dangerous operational tour of duty in Iraq. He left the Army voluntarily on 1 April 2008. He is now aged 30.[2]He brings these proceedings with permission granted by Blair J following an oral renewal hearing on 10 November 2009 (permission having previously been refused on the papers by Ouseley J on 12 August 2009) to challenge to the decision letter of the Secretary of State for the Home Office ('the Secretary of State') of 25 February 2010 (which replaced the decision letter of 13 March 2009) to refuse his application for indefinite leave to remain ('ILR') in the UK on the basis of his service in the British Army.[3]It has long been the policy of the Secretary of State that those who have served in the Army for a significant period should have an enhanced status within the framework that applies to those seeking the right to live in the UK (see paragraph 7 below). This was once called 'the Armed Forces Concession'.[4]Few would, in my judgment, quarrel with the proposition that, but for one blot (or possibly two blots) on his copybook (see paragraphs 12-14 and 84-90 below), the Claimant was (and remains) a prime candidate for the grant of indefinite leave to remain ('ILR') in the UK given his Army service and the positive assessments made of him by those who supervised him in the Army, particularly reflected in the reference referred to in paragraph 39 below. There is no doubt that he would not be someone who would be a drain on public resources - indeed quite the reverse. Subject to the supervisory jurisdiction of judicial review, the grant of ILR is, however, a discretionary matter for the Secretary of State. The Claimant is supported in his endeavours to remain in the UK by The Royal British Legion and by The Soldiers, Sailors, Airmen and Families Association.[5]The case he advances in these proceedings is that the decision to refuse him ILR was irrational, disproportionate and unreasonable and/or insufficiently reasoned and/or in breach of his rights under Article 8 of the European Convention on Human Rights (‘the ECHR’).[6]I will turn to these matters in due course, but by way of preface it should be noted that, unlike many who seek the court's intervention in these matters, he entered the UK lawfully and was lawfully in the UK for much of the period during which his long-term immigration status has been under consideration. He did at one stage technically become an “overstayer” (see paragraph 59 below), but subsequently (see paragraph 74) the Secretary of State has confirmed that the point was not being taken against him for reasons which will become apparent in due course.

The applicable rules

[7]The current Immigration Rules applicable to someone who has served in the Army are rules 276L-Q. They are as follows:
“Requirements for indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276L. The requirements for indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces are that: (i) the applicant has completed at least four years' service with HM Forces; and (ii) was discharged from HM Forces on completion of engagement; and (iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and (iv) holds a valid United Kingdom entry clearance for entry in this capacity. Indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276M. A person seeking indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces may be granted indefinite leave to enter provided a valid United Kingdom entry clearance for entry in this capacity is produced to the Immigration Officer on arrival. Refusal of indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276N. Indefinite leave to enter the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces is to be refused if a valid United Kingdom entry clearance for entry in this capacity is not produced to the Immigration Officer on arrival. Requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276O. The requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces are that: (i) the applicant has completed at least four years' service with HM Forces; and (ii) was discharged from HM Forces on completion of engagement; and (iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and (iv) on the date of application has leave to enter or remain in the United Kingdom. Indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276P. A person seeking indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces may be granted indefinite leave to remain provided the Secretary of State is satisfied that each of the requirements of paragraph 276O is met. Refusal of indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces 276Q. Indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276O is met.”
[8]Other rules of potential relevance to the Claimant's case are paragraphs 320(19), 322 and 363 of the Immigration Rules. Paragraph 320(19) is as follows:
"In addition to the grounds for refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply: ... (19) where from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.” Paragraph 322 (which was effective from 1 April 2008 and which is relevant to the exercise of discretion provided by rule 276P) is as follows: “Refusal of variation of leave to enter or remain or curtailment of leave 322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for variation of leave to enter or remain or, where appropriate, the curtailment of leave: Grounds on which leave to remain in the United Kingdom is to be refused (1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules. (1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application. Grounds on which leave to remain in the United Kingdom should normally be refused (2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave; (3) failure to comply with any conditions attached to the grant of leave to enter or remain; (4) failure by the person concerned to maintain or accommodate himself and any dependants without recourse to public funds; (5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his character, conduct or associations or the fact that he represents a threat to national security; (6) refusal by a sponsor of the person concerned to give, if requested to do so, an undertaking in writing to be responsible for his maintenance and accommodation in the United Kingdom or failure to honour such an undertaking once given; (7) failure by the person concerned to honour any declaration or undertaking given orally or in writing as to the intended duration and/or purpose of his stay; (8) failure, except by a person who qualifies for settlement in the United Kingdom or by the spouse or civil partner of a person settled in the United Kingdom, to satisfy the Secretary of State that he will be returnable to another country if allowed to remain in the United Kingdom for a further period; (9) failure by an applicant to produce within a reasonable time information, documents or other evidence required by the Secretary of State to establish his claim to remain under these Rules; (10) failure, without providing a reasonable explanation, to comply with a request made on behalf of the Secretary of State to attend for interview; (11) failure, in the case of a child under the age of 18 years seeking a variation of his leave to enter or remain in the United Kingdom otherwise than in conjunction with an application by his parent(s) or legal guardian, to provide the Secretary of State, if required to do so, with written consent to the application from his parent(s) or legal guardian; save that the requirement as to written consent does not apply in the case of a child who has been admitted to the United Kingdom as an asylum seeker."
Paragraph 363 is in the following terms:
“The circumstances in which a person is liable to deportation include: (i) where the Secretary of State deems the person’s deportation to be conducive to the public good …”
Grounds on which leave to remain in the United Kingdom is to be refused

Grounds on which leave to remain in the United Kingdom should normally be refused

[9]The Claimant applied for ILR under paragraph 276O of the Rules on 14 April 2008 and it is the ultimate refusal of that application that lies behind these proceedings. It is necessary to trace the history, both of the Claimant's time in the Army and of that application and how it has been handled, to understand the arguments in the case.

The detailed background up to the making of the application for ILR

[10]The story can begin for this purpose with the Claimant's enlistment in the Army on 14 November 2003. Consistent with normal practice, on 17 November 2003 the Army requested that the Claimant’s passport be endorsed with “Exemption from Control during Service”. This was granted on 28 November 2003.[11]In the first year of his service the Claimant engaged in a number of training courses. He decided that he wanted a position as a clerk for Human Resources, carried out further training to that end and qualified as Military Clerk Class 3. On 30 September 2004 he was posted to Germany with 1(UK) Armoured Division and Signal Regiment. For some part of the period in Germany he was stationed in Osnabruck. It was there that the first (and potentially most significant) blot on his record appeared. Until then there is no suggestion of any problem with his behaviour in the Army although it is clear that he had some difficulties in adapting to Army life.[12]On 5 December 2004 (when he was aged 24) he was involved in an incident that led to his pleading guilty on the day of the trial at a District Court Martial nearly 6 months later on 25 May 2005 to an offence of sexual assault on a female soldier contrary to section 70 of the Army Act 1955. The incident followed a party at the camp where he was based on an occasion when, uncharacteristically, he had had too much to drink. The basis of his plea of guilty, which was accepted as the basis for sentencing by the Assistant

Judge Advocate who presided at the hearing, was as follows:

“The defendant, whilst tipsy, entered the complainant’s room in the early hours of 5 December 2004. The complainant was asleep in bed. She was naked from the waist up. The defendant pulled back her duvet and sat on her bed. He attempted to touch her right breast. He was prevented from doing so because the complainant had crossed her arms across her breasts. The complainant told the defendant to stop and he then left the room. The defendant accepts that the complainant only put her arms up to her breasts in a reaction to the defendant trying to touch her right breast and in order to thwart such a touching. The defendant remained fully clothed.”
The defendant remained fully clothed.”[13]It does appear that that version differed to some extent from the version put forward by the victim (who, it has to be said, had been drinking herself) and the version thus presented by the prosecuting officer to the court. Whilst this is a matter of some concern, where a 'basis of plea' has been accepted and acted upon by a court, it would be unfair for a different version to be adopted for any other purpose. However, it does not appear that the circumstances of the incident have ever played any part in the Secretary of State’s evaluation of the Claimant’s application for ILR (see paragraphs 108-110 below).[14]The Claimant was sentenced by the Assistant Judge Advocate immediately to 6 months detention in the Military Corrective and Training Centre at Colchester.[15]In order to maintain the chronology of events, before I deal with the appeal he launched against this sentence, I should refer to the report prepared on him by the officers responsible for him for the period 30 September 2004 to 1 June 2005. The Pen Picture completed by Major Hart contained the following paragraph:
“[The Claimant] appeared from the outset to be a soldier with high ambitions. He is articulate, well spoken and bright. He has however had some difficulty in adapting to Army life, where he has encountered problems integrating as part of the team. [He] needs to mature and adapt quickly to have any chance of a promising career.”
[16]His Commanding Officer's observations were somewhat more optimistic and positive:
“[The Claimant] is enthusiastic about everything he does. He is an excellent sportsman and recently had the courage to stand up in front of the Regiment and perform well at this level. Fluent in French and nearly fluent in German, he has a flair and passion for languages and, since his arrival, has sought to improve his language qualifications for the benefit of the Unit. It is a shame that he does not yet match his performance as a clerk with his sporting and language skills, however he is learning and slowly improving his soldierly and trade skills. He should not be considered for promotion this year, however he has potential and once he realises some rank, he would be an ideal candidate for an Embassy post.”
[17]That is, therefore, how things stood with his Unit at about the time he was embarking on his sentence of detention.[18]On 4 June 2005 the Claimant petitioned against the 6-month sentence to the Army Reviewing Authority (the 'ARA') under s 113(1) of the Army Act 1955. A number of mitigating factors were put before the ARA including the following as taken from the Skeleton Argument dated 23 July 2005 lodged in support of the appeal: 1. The Claimant was young and hitherto of good character. 2. The Claimant believed that he and the complainant were very good friends and the offence arose out of his misapprehension to that effect. 3. The offence was entirely out of character for the Claimant and at a time when he was tipsy having drunk alcohol for the second time only in his life. 4. The sentencing judge had seemed to accept that the offence perpetrated in a civilian context would have been dealt with by way of a Community Sentence in the Magistrates’ Court (a disposal not available in respect of military personnel).

The Judge Advocate, in his advice to the ARA, said this:

“The proceedings are legally in order. It is a serious offence for a male soldier to go uninvited into a female soldier’s accommodation at night and this is aggravated by waking her up and then attempting to touch her sexually. Such behaviour undermines the trust and can affect unit cohesiveness. In that respect the offence is more serious when committed in a Service context. … In this case, had the court sentenced on the basis of the prosecution opening a custodial sentence of six months, possibly dismissal, would have been entirely appropriate. However, even with the aggravating Service features of the case such a sentence is manifestly excessive on the facts in the basis of plea. In that respect the petition has merit. A sentence of detention is right in principle to reflect the seriousness of invading a fellow soldier’s accommodation at night and thereby undermining mutual trust, but a much shorter period of about three months is appropriate. The Reviewing Authority should, therefore, substitute a sentence of eighty four days detention.”
[20]On 19 July 2005, at the hearing of the appeal against sentence, the ARA reduced the Claimant's sentence not to 84 days, but to 112 days.[21]If one pauses at this point to assess this incident on the basis of the Claimant's account, a number of observations can be made. In the first place, whilst no sexual assault is to be condoned, in the scale of sexual offending this assault is clearly at the very lowest end of the bracket of seriousness. On the basis of the 'Basis of Plea' the incident must have been over very quickly and there is no suggestion that the victim, who had herself been at the party and, as I have indicated, had herself been drinking, was more than temporarily upset by it. Judges with experience of the criminal courts regularly have to deal with quite appalling offences of a wholly different character from this one. From time to time the Secretary of State, through her officials, has to consider the implications of a sexual offence of great gravity (for example, rape or sexual assault, sometimes involving children) on a decision concerning the immigration position of someone who has committed such an offence. The officials dealing with the Claimant's case have not been dealing with that kind of offence. There is little doubt that if an incident as reflected in the 'Basis of Plea' had occurred in a civilian context,(a) it might never have seen the light of day or(b) if it had, it is possible that it would not have led to a prosecution at all or(c) if it did, the penalty would undoubtedly not have involved a prison sentence, certainly for someone who was acting entirely out of character when uncharacteristically affected by alcohol.[22]It is clear that what made this offence serious in the Army context was going into a female soldier's room at night uninvited and making an unwanted sexual overture. It is that that led to the sentence of detention. It is equally clear that the Claimant was at the time, and has been since then, full of remorse for getting carried away in the way that he did on this occasion. There is equally no suggestion of any repetition of conduct of this nature at any stage subsequently.[23]Given that it was the Army context that made this offence more serious than it might otherwise have been in a different setting, it is part of the Claimant's argument in this case that the Secretary of State, by her officials, has failed to take into account the circumstances of the offence and, in addition, the way the Army has looked upon the Claimant and his career since he served his sentence. I will revert to that argument when I have traced the history further.[24]The net effect of the sentence imposed upon him was that the Claimant was detained at Colchester for 75 days, receiving a one-third credit for good behaviour during his sentence. He was released on or about 6 August 2005 and sent back immediately to his unit in Germany. The report of the Company Commander on his discharge from Colchester was in the following terms:
“[He] has completed 75 days in detention for an assault related offence awarded by [a District Court Martial]. He arrived with a unit report that suggested that he is articulate and ambitious, and that when focused he has the potential to be a very effective soldier with a promising career. ... He has been assessed “very good” on his training records, has improved his personal fitness and displayed much potential. It has been identified that he has shown an aptitude towards physical training and been recommended that he attend an all Arms PTI course. He has given 100% throughout and proven to be an excellent team player displaying fully his commitment to his military career. Assisting those [soldiers under sentence] less able within the company he interacts with ease displaying a sound understanding of others’ needs. His time here has been well spent; he has demonstrated personal determination and considerable effort. Providing he maintains his personal motivation and drive he should do well on his return to unit.”
[25]The Commandant said this:
“[He] has performed to an extremely high standard whilst here. He has learnt a valuable lesson and I believe he will be an asset to his unit. Well done.”
[26]His Final Training Report from Colchester was in the following terms:
“[He] has produced a very good performance during the [Military Training] phase of his sentence. His attitude towards [Training] has been very positive and consistent. A popular member among his peers, who has assisted others less able than himself …. In conclusion this has been a very good all-round performance from a very capable soldier. Well done.”
[27]Having returned to his unit (and the same job) he remained there until in July 2006 he embarked on the tour of duty in Iraq. In March 2006 he received a certificate to demonstrate his progress in German and which, as I understand it, qualified him as a translator. (I should add that in November 2006 he received an excellent report for his work on the German course he had undertaken that year and commended not only for his ability, but also his hardworking attitude and his popularity with staff and students on the course.)[28]The Pen Picture completed by Major Hart in his annual report dated 31 May 2006 was in these terms:
“[The Claimant] is a polite, courteous and likeable character who gets on well as a member of the detachment but most importantly the Sqn administrative team. [He] is a very capable individual whose intelligence and articulate approach to all situations have allowed him to adapt to a move to one of the Armd Sqns. [He] is extremely robust and hard working and is finding work at the ‘coalface’ extremely rewarding. More time and experience in trade have allowed him the technical attributes to better his approach to the work environment. He has some superb interpersonal skills and is well versed in a number of foreign languages especially German. He recently attended one of the basic German language courses and was immediately moved to one of the more experienced level courses. [He] has worked hard to impress especially during the latter half of the reporting period. He has proved his abilities and is deserving of my recommendation for promotion.”
[29]That reflects a very much more positive picture than the one compiled by Major Hart the previous year (see paragraph 15 above).[30]His Commanding Officer, Major Caie, said this:
“[The Claimant] has set about his work in the Sqn in a confident and professional manner. He clearly enjoys the post in which he is currently employed and has adapted well to the workings and the personalities of those officers/SNCOs and junior soldiers within the Sqn. No task is ever too big and he will ask for clarification if he is unsure always giving 100% to the task given. I have been very impressed with his work ethos and think he would certainly make a good LCpl, a matter that will be further strengthened by the experiences he will gain on his forthcoming deployment to Iraq. Based on his hard work and determination, especially over the latter period of the reporting period, I agree that he is deserving of a recommendation for promotion.”
[31]As I have indicated previously, he served in Iraq, based in Basra at Basra Airport, until January 2007. In his unchallenged witness statement he says that he found this tour of duty particularly challenging as a result of the constant threat of mortar attack and the intense heat (some 60°C) that prevailed throughout the period he was there. He says that 3 soldiers were killed in the camp as a result of mortar attacks during that time. There can be no doubt that this was a dangerous period for troops stationed there since it was the period leading up to the execution of Saddam Hussein on 30 December 2006. Although he was essentially employed as a clerk, he did his "fair share of guard duty". On 11 October 2006 the Claimant was awarded a Telic Medal for his service in Iraq.[32]On his completion of this tour the following report was made upon him on 9 January 2007:
“[The Claimant] has enjoyed a productive detachment at Basrah .… His keenness to learn and to take on new challenges ensured that he quickly became a 'jack of all trades'. He is an enthusiastic individual who is happy to undertake whatever task is thrown at him, regardless of its nature. Since mid-Oct 06, [he] has been part of the Estates Flt, acting as the office [clerk]. This has been a testing period for him and one which he has worked hard to reach a competent standard. The basis of the work was alien to him and demanded attention to detail, alertness and general administrative ability. With the help and guidance of his [corporal], [he] showed that he is capable of a good performance. His assistance with the Flt was much appreciated, allowing the [corporal] to take on many of the more strategic tasks… Outside of the work forum, I have been impressed at the way he has immersed himself in the social aspects of the detachment. He is a constant supporter of all functions and voluntarily took on the task of being the DJ booth manager at the Toucan bar facility. I have received very positive feedback from the [officer in charge] of the bar, praising him for his commitment and assistance with the many functions that have taken place. An intelligent and physically fit individual, [he] has demonstrated that he has the ability to learn and apply. A cheerful and polite soldier, [he] uses his pleasant demeanour to achieve results. In summary, [he] can be pleased with his efforts whilst at Basrah, and he returns to his unit having learnt a number of new skills.”
[33]By the time of the completion of his posting in Basra, he had decided that he wanted to return to his studies. He had hoped to study whilst in the Army (which was one of his reasons for enlisting in the first place), but the opportunities were less than he had anticipated. His plan was to try to become a Commissioned Officer, but he needed a degree for that purpose. It was necessary for him to give one year’s notice and he handed in his official notice on 1 April 2007 which meant that he could leave the Army on 1 April 2008. His wish was to stay in the UK to study so that he could return to the Army in due course as a Commissioned Officer.[34]He told his commanding officer of his plan when he returned to his Regiment after his tour of duty in Iraq ended.[35]His annual report to 30 June 2007 (completed in September 2007) was excellent. The Pen Picture was in the following terms:
“During the reporting period [the Claimant] has completed a demanding operational tour in Iraq .… [He] is a well turned out, intelligent and polite serviceman. Quiet by nature, he is however very articulate and has a keen sense of humour; which he unfortunately tends to keep hidden. He is well liked and respected by all and participates in all [Adjutant General's Corps] activities. He is militarily sound and maintains a good level of fitness. This has been a good year for [him]. He received praise from the [officer commanding] the unit he was attached to, for his performance whilst on Operation TELIC and then confirmed on his return to normal works that he has the ability to apply lessons learnt. He is able to work largely unsupervised and although he still needs to improve his technical knowledge, he is not afraid to ask questions and utilise the wider knowledge of [a] senior member of the Detachment. Unfortunately [he] has decided that the Army is no longer for him and shortly after his return from Op TELIC, submitted his notice to terminate. He is not however let this interfere with his performance and has continued to work hard and remain motivated; as such he is deserving of a recommendation for promotion.”
[36]The recommendation for promotion was endorsed by the Commanding Officer, Captain Moody.[37]On 24 August 2007 the Claimant had been successful in passing his 'Life in the UK' test as required for his application for naturalisation as a British citizen or for obtaining ILR.[38]Supported by Captain Moody, who said that he had "served the British Army well during the last four years and [had] been a great asset to the team", on 23 October 2007 the Claimant applied for naturalisation as a British citizen under section 6 of the British Nationality Act 1981. The application was submitted to the Home Office under cover of a letter the British Consulate in Düsseldorf. The Claimant declared his conviction and sentence in his application. He paid the relevant fee of £655.[39]I am unclear whether the following reference was supplied as part of the naturalisation application, but it is convenient chronologically to note the terms of a personal reference for the Claimant from Major Lee Keily dated 5 September 2007. Major Keily had known him from his early days in the Army. He said this:
“[He] has excellent personal qualities being both totally dependable and very loyal. During his tenure in the Regiment he has regularly been held responsible for the ‘outside hours’ provision of welfare and compassionate services to the 400+ soldiers and families of a busy Signal Regiment. In this role he showed the compassionate and caring side of his nature, whilst being very discrete. [He] displays courage and self-confidence and he inspires, motivates and instils self-esteem in his team. He readily accepts responsibility and upholds only the very highest of standards. He has the ability to get to the heart of issues quickly and deduces creative solutions; he is also adaptable and makes sound decisions. He is also very fit and clean living (he doesn’t smoke or drink). I have no reservation in recommending [him] to an employer in any field. He would enhance any organisation and increase its output. I would definitely snap him up should he choose to re-join the British Army.”
[40]Whether that was submitted in support of the application or not, the application was rejected. In a letter dated 27 November 2007 addressed to the British Consulate in Düsseldorf, a Home Office official said, in the first instance, that the rules require that an applicant should be in the UK “on the date the application [is] received at the Home Office” and because the Claimant was serving in Germany at the time “his application falls for refusal”. However, that was not the only reason given for refusal. The other was that the Claimant was not regarded as being of “good character” because of the conviction on 25 May 2005. The letter indicated that it was “not the normal practice of the Secretary of State to naturalise a person who has a recent previous conviction”. The letter indicated that if the Claimant “still wishes to become a British citizen a fresh application will be required”, but it was also recorded that if he was still subject to “a sex offender’s notice” the application was unlikely to be successful.[41]On 24 January 2008 the writer of that letter apologised for the incorrect inclusion of the paragraph in the letter indicating that the application fell for refusal because the Claimant was absent from the UK at the time it was received. It was confirmed that the reason for refusal was the second ground.[42]The Claimant left Germany on 2 February 2008 and returned to the UK. He had 28 days holiday entitlement and also 28 days termination leave and in consequence did not return to Army duties again before he completed his term of service on 1 April 2008.[43]On 9 April 2008 the Service Personnel and Veterans Agency of the Ministry of Defence sent the Claimant his Certificate of Service showing his Record of Service and giving the date of enlistment as 14 November 2003 and his date of termination as 1 April 2008.[44]The Claimant was preparing to apply for ILR and it is to the first stage in that process to which I will turn after noting briefly the terms of this final report from the Army. The Pen Picture was in these terms: “[He] has had a difficult reporting period; balancing the needs of the service with his personal aspirations for civilian life. That said he has continued to remain positive and has performed up to the standard expected and completed all tasks set, albeit with supervision. His technical knowledge has improved and he continues to ask when required to ensure the correct result. [He] has applied for settlement in the UK upon discharge and I wish him well. If he were remaining in the Army, based on his performance this year, he would not receive a firm recommendation for promotion."[45]The Commanding Officer endorsed those observations, but commented on "the leadership ability that I am sure he has" and concluded with these words: "[He] has had a good career in the Army and I am sure he will do well in whatever career path he chooses. Good luck.”[46]If one pauses there and reviews his Army career, how is it to be assessed and, more importantly for present purposes, how should the offence committed in early December 2004 be looked upon in that context? In summary, it can be said that, after initial difficulties in coming to terms with Army life (which, of itself, would not be surprising), the Claimant applied himself conscientiously and with determination in order to make a success of it. He was plainly highly regarded by those who held superior positions over him and he was popular with (and helpful to) his fellow soldiers. He learnt a lesson from the offence and the sentence and, notwithstanding that episode, he was received back into his unit with no difficulty, was twice recommended for promotion thereafter (in May 2006 and September 2007) and he had undertaken a difficult, demanding and dangerous tour of duty in Basra where there was a risk of being killed. That posting yielded a very positive report and the general success of his Army career was reflected in the testimonial of Major Keily (see paragraph 39 above) and the pithy assessment of Captain Moody (see paragraph 38 above). The “blip” arising from the offence had long since been forgotten and, perhaps of significance, there had been no repetition of the kind of behaviour that led to it.

The application for ILR

[47]On 14 April 2008 the Claimant made his application for ILR pursuant to paragraph 276O of the Rules. According to his uncontested witness statement, he had made an appointment to go to the UKBA office in Croydon on that day. He took with him all the relevant documents given to him by the Army in order to apply for ILR, those documents including his Certificate of Service. From his point of view, that was the main document he needed to prove how long he had been in the Army and demonstrating his official discharge date. His account is that the lady in the office checked his documents and said everything was fine. She asked him a number of questions about the conviction and the circumstances that led to it and indicated that, because of this, she could not make a decision that day because the file would need to be passed to another unit to investigate his conviction. He paid the premium charge of £950 in the hope that the decision could be made that day. A letter dated 14 April 2008 evidencing receipt of the application was sent to the Claimant. The letter stated that the application was valid, but that it had been passed to a team where further enquiries could be made. The Application Form indicated that what was required by way of documentation from the Army was his Certificate of Discharge. There was no requirement in the Application Form for identifying (and supplying evidence of) the relevant Queens Regulation under which he was discharged.[48]The Claimant heard nothing further from the UKBA until the letter of 12 June 2008 (see paragraph 49 below), but under cover of a letter from his former Division in Germany dated 9 May 2008 the Claimant was sent a further Certificate of Service (Form B 108X(2)) dated 8 May 2008. It was in these terms:
“[The Claimant] joined the British Army in 2004 and has completed just over 4 years service .... During his time in the Army [he] has seen service in the United Kingdom and Europe and has completed a dangerous operational tour of Iraq. [He] has been employed predominantly in the Human Resources Administration area and has been responsible for personnel administration and elements of payroll administration for in excess of 100 staff. He has shown that he is adaptable and resourceful and is able to work with little or no supervision. Intelligent and articulate, [he] has an excellent ability for learning; particularly foreign languages (he is a colloquial German speaker). He is honest and loyal and has a keen sense of humour. Throughout his service [he] has demonstrated that he is a reliable and professional individual. He has the intellect and skills to be successful in any field of employment and will be an asset to any future employer.”
[49]It should be noted that this Certificate of Service contained no information about the Queens Regulation under which he was discharged.[50]On 12 June 2008 the Home Office (the Immigration and Nationality Directorate in Croydon) wrote to the Claimant requesting that he provide "a full certificate of discharge or confirmation in writing from an official Army representative detailing the paragraph of the Queens Regulations" under which he was discharged. This was to enable consideration to be given to his application. He was asked to reply by 27 June 2008.[51]Immediately on receiving this letter the Claimant contacted his Regiment. They told him that they had provided him with the Certificate of Service, including his Record of Service, and that the Home Office had everything they needed in those documents. They offered to speak to the Home Office if any further information was required.[52]By a letter dated 19 June 2008, and thus 8 days before the final date on which the Claimant had been given to respond to its letter of 12 June (and whilst the Claimant was looking further into getting the evidence required), the Home Office wrote to the Claimant, enclosing a Notice of Decision, informing him that his application had been refused. The grounds for the decision were said to be as follows:
“In view of the fact you have failed to provide documentary evidence to confirm which paragraph of the Queens Regulations you were discharged under, the Secretary of States is not satisfied that you were discharged from HM Forces on completion of engagement and therefore qualify for indefinite leave to remain under the Immigration Rules.”
[53]Miss Mountfield has characterised this process as "manifestly unfair" and Mr Ruck Keene has sensibly not sought to justify it. It is obviously grossly unfair to give someone the opportunity to provide evidence in support of an application by a certain date and then make a decision before that date because the information has not been supplied. One does not wish to be too critical of hard-pressed officials who are dealing with many difficult and complex applications, but this particular procedural mistake cannot be ascribed to a "right hand and left hand" mismatch: it was the same hand that signed both letters.[54]The Notice of Decision granted the Claimant a further 28 days leave to remain in the UK until 18 July 2008. As a result of this grant of leave to remain, he was not entitled to the statutory right of appeal before the Asylum and Immigration Tribunal against the decision on its merits to which he would otherwise have been entitled. Whilst there is no suggestion that this step had been taken deliberately to ensure that this was so, the whole process has unfairness written all over it.[55]It is to be noted that the Notice of Decision made no reference to the Claimant's conviction and it would seem that no investigations into it had been undertaken by then. There was certainly no express engagement with the issue.[56]On 26 June 2008 the Claimant wrote to the Home Office (by first-class recorded delivery, he says) asking that the application be reconsidered. He referred to a provision in the Queens Regulations (Chapter 9, paragraph 389, which relates to "discharge by right having given appropriate notice") that he thought applied (which indeed it did: see paragraph 61 below), but he indicated that his former Division could give further information by phone or post and he gave all the contact details. He sent the further Certificate of Service and his passport with this letter. (According to the letter from the Chief Executive of the UKBA referred to in paragraph 65 below, this letter was received on 9 July 2008, nearly two weeks later.)[57]He received no reply to or acknowledgment of his letter until the letter of 9 September 2008 (see paragraph 59 below) and in the meantime had written further letters and, in due course, enlisted the help of his MP. It appears that it was only the MP's intervention that moved things forward. On 25 July 2008 the Claimant wrote to the signatory of the letters of 12 and 19 June. Part of his letter reads as follows:
“…the last time I had some income was on the 31 Mar 08 which was my last Army pay day. I have been at home since that date doing nothing more than eating, sleeping and running my sister’s bills up without providing any financial assistance. She is now fed up and is giving me grief because I am becoming a heavy financial burden. I also have some debts that I have not been able to settle. I feel unfairly treated by the system and I do not understand how this can happen to me, a serviceman on the reserve. I still have Army gear with me and will be called upon to serve under the British flag and I am kept unemployed for four months. I can’t even visit my father who is currently unwell in Africa. I am very sad about this situation and it is starting to take its toll on my health. I feel I deserve better. All I want is work and pay taxes like I have been for the last seven years in this great country. Please do the necessary for my case and let me know as soon as possible. I am even ready to attend further interviews if need be.”
[58]On 21 August 2008 the Claimant wrote to a Mrs Woollacott (in the office of his MP) referring to the difficulties he faced, the fact that his father was not well, that he felt that he should be by his side, but indicating how difficult it was to get evidence of this from "a remote area in Cameroon." His MP wrote to the MP's Correspondence Section in Croydon on 3 September.[59]On 9 September 2008 the Home Office wrote to the Claimant stating that they had considered the information provided but could find no grounds to alter the original decision. The letter further stated that the Claimant had no right to stay in the UK and was liable to be removed. The substantive part of the letter was in these terms:
“A letter was sent to you on 12 June 2008 asking you to provide a full Certificate of Discharge or confirmation from an official Army Representative detailing the paragraph of the Queen’s Regulations you were discharged under. In response to this you provided certificates of service which did not confirm the information requested, therefore your application was refused based on the fact that you had failed to produce a documentary evidence to confirm which paragraph of the Queen’s Regulations you were discharged under as is required by the Immigration Rules. In reaching this decision the Secretary of State also gave specific consideration to your rights under the European Convention on Human Rights 1998 (ECHR), but the Secretary of State can find that no grounds within your application that would impose any obligation on the United Kingdom under any Article of the ECHR or any legislation currently in force.”
[60]Pausing at that juncture, it is very difficult to know precisely what is meant by the paragraph referring to the ECHR.[61]In a letter dated 15 September 2008 the Headquarters Land Forces, Directorate of Personal Services (Army), wrote to the signatory of the letter of 9 September explaining that the paragraph of the Queens Regulations that the Claimant had been discharged under was not recorded on his Certificate of Service, but that a headed letter produced by his old unit had been obtained which stated that he was discharged under QR Para. 9.389 - as indeed the Claimant had indicated in his letter of 26 June 2008. A copy of the letter from his unit was enclosed with the letter with a request that this “new information” be taken into account.[62]No response was received to this letter (or indeed any other letter) until by a letter dated 27 November 2008 the UKBA, by its Chief Executive, Mrs Lin Homer, responded to a letter from Ms Laura Moffat MP, then the Claimant's MP, written on his behalf to Mr Phil Woolas MP on 5 November. I will mention that letter below (see paragraph 65), but in the meantime other letters had been written on his behalf.[63]On 9 October 2008 a letter was sent by the Directorate of Personal Services (Army) from the Headquarters of the Adjutant General to the signatory of the letter of 9 September 2008 confirming that the Claimant’s inability to provide documentation confirming the paragraph in the Queens Regulations that related to his discharge was “through no fault of his own” and asked that his application be reconsidered.[64]On 3 November 2008 Mr Stuart Wood, a Welfare Manager at the Ministry of Defence, wrote to the signatory of the letter of 9 September 2008 asking when a decision might be taken on the Claimant’s case. The letter was in these terms:
“As you will be aware [the Claimant] applied for indefinite leave to remain in April this year. He made his application in person in an attempt to ease and speed the process. His passport was retained. It would appear that under your guidance rules … [the Claimant] satisfies the criteria to remain. He served more than four years in the Army, was not medically discharged, completed his engagement and made his application as soon as he left the Army. Because of the current situation [he] is unable to seek work, obtain housing and generally begin to settle into civilian life. He has already had to decline employment interviews and postpone a further education course. He is becoming increasingly frustrated and depressed with his situation. Could you please advise when a decision can be expected in this case, and what is delaying the process? This seemingly simple case appears to be taking too long to resolve.”
[65]As I have indicated, there was no response to any of those letters. Again, it was only when his MP became involved that any kind of response was forthcoming. The response was, as I have indicated above, from the Chief Executive of the UKBA. I imagine it must have been drafted on her behalf. It repeated the contention that the Claimant had “failed to provide documentary evidence to confirm which paragraph of the Queens Regulations he was discharged under”. The letter referred to the letter of 12 June 2008 and the subsequent letter of 19 June, but made no reference to the deadline imposed in the letter of 12 June for the submission of the information said to be required, namely, 27 June. It would seem that that matter was not relayed to the Chief Executive nor were the terms of the letter of 14 April 2008 indicating that the Claimant's application was "valid" (see paragraph 47 above). The following paragraphs appeared in that letter:
“On 9 July, we received a letter from [the Claimant], enclosing his passport, a testimonial from the Army and his Certificate of Service, asking for a reconsideration of his case. However, the submitted documents did not contain the required information as explained above, and, therefore, the refusal decision was maintained. In our letter of 9 September, advising [the Claimant] of this, he was also advised that any new representations regarding this case will constitute a fresh application requiring the appropriate fee. As [the Claimant’s] LTR had expired at this point, his passport was retained by us. On 15 September a fax was received from the Directorate of Personnel Services of the Army confirming the paragraph of Queen’s Regulations [the Claimant] was discharged under. This was considered as a new representation and, therefore, required a fresh application and the appropriate fee, as advised in our letter of 9 September. As [the Claimant] did not submit a fresh application and pay the appropriate fee, this new representation was not given further consideration. [The Claimant’s] case has already been reconsidered and the decision has been maintained. I am afraid no further consideration can be given to his case. [The Claimant] currently has no outstanding applications. He currently has nor valid leave and, therefore, no basis of stay here. It is open to [him] to submit a fresh application enclosing all relevant documents and paying the appropriate fee for us to fully consider any application. As you will appreciate we consider every application on its individual merits and based on the supporting documentary evidence provided. I am, therefore, unable to guarantee the success of any application [he] may wish to make.”
[66]Against the background of what had in fact occurred, the suggestion that the Claimant had to make a new application and pay another fee seems pretty steep. The reference to the fact that he had “no valid leave” foreshadowed a point taken against him in the Notice of Decision dated 13 March 2009 (see paragraph 71 below), namely, that at the time of the further application that was invited in Mrs Homer's letter he had no leave to remain. (It is, incidentally, a point no longer relied upon - plainly, in my judgment, a point rightly abandoned.) It is, of course, to be noted that no reference was made in this letter to the Claimant's conviction.[67]On 4 December 2008 the Claimant made a fresh application for ILR pursuant to paragraph 276O of the Rules enclosing the evidence requested by the Home Office (including his Certificate of Discharge) and paid a new application fee (of £750) which had been funded by the British Legion. On 5 December 2008 the UKBA wrote to the Claimant stating that the application would be passed to a casework unit and that they would inform him if the application could not be completed quickly. It said also that if “there is any problem with the fee payment or the validity of the application, or if more information or evidence is needed” a caseworker would contact him in writing or by telephone.[68]Given the letter from Mrs Homer of 27 November 2008 the Claimant may have been forgiven for thinking that she had taken a personal interest in his case. Against that background he wrote to her personally on 5 December 2008. The letter contained the following paragraph:
“Ma’am, I am not asking for special treatment here but I am worried about the time it will take to process my application this time round. My father is very ill and has been for the past 4 months back in Africa, I have not seen him or any other member of my immediate family since I came back from a tour of Duty in Iraq in mid-06. The British Legion have offered to fund my travel but of course I cannot go anywhere without my passport. I am therefore; asking you to see how the process can be sped up or if it cannot then, please let me have some form of travel document to see my dad before anything happens, it’s been so long and he is in pain.”
[69]Despite the very polite tone of that letter, it was never acknowledged or responded to either directly by Mrs Homer or on her behalf.[70]The next the Claimant heard was when he received a Notice of Decision dated 4 March 2009 incorrectly addressed to someone from Sri Lanka. Its terms, however, indicate that it related to the Claimant's application dated 4 December 2008. This, incorrectly addressed, Notice of Decision contained the paragraph to which I referred in paragraph 60 above. His MP took the matter up on his behalf indicating that he was “understandably left confused.”[71]A few days later a Notice of Decision dated 13 March 2009 refused the Claimant’s further application for ILR this time under paragraph 322(5) of the Rules in the following terms:
“In view of the fact that you have been convicted of a sexual offence on 25 May 2005. On 19 July 2005 the Army reviewing authority varied on appeal the detention from six months to 112 days. Under the Rehabilitation of Offenders Act 1974 this conviction is not yet spent, therefore the Secretary of State is not satisfied that your character and conduct is conducive to public good.”
[72]Whilst that decision was said to be made pursuant to paragraph 322(5), the words "conducive to the public good" do not appear in that paragraph: they appear in paragraphs 320(19) and 363 (see paragraph 8 above), both provisions that Mr Ruck Keene has been anxious to indicate operate in different circumstances from paragraph 322(5).[73]In passing it is also to be noted that a conviction of the nature recorded against the Claimant in "service disciplinary proceedings" (which is what the Court Martial proceedings constituted) becomes spent 5 years after the date of the conviction: see Table A under section 5 of the Rehabilitation of Offenders Act 1974. (I am not entirely sure why the period is 5 years rather than 7 years as it is for an equivalent "civilian" offence unless it relates to the period actually spent in custody before automatic release for good behaviour, but the statute seems clear.) It follows that as of the date of the Notice of Decision, there remained a 14-month period to run. It expired on 25 May this year. (See further at paragraph 95 below.)[74]The Notice of Decision also pointed out that the Claimant’s leave to remain expired on 18 July 2008 and that he therefore did not have leave to enter/remain at the time of the application. As I have indicated, this point is no longer relied upon having been abandoned in the letter of 25 February 2010 (see paragraph 94 below).[75]The Notice of Decision did not purport to carry out any kind of balancing exercise (see paragraphs 112 and 118-121 below) and made no reference to the positive factors concerning the Claimant. It did not mention Article 8 of the ECHR and did not contain the paragraph referred to in paragraphs 60 and 70 above, but it did state that there was no right of appeal against the decision.[76]I should say that shortly after this (on 20 March 2009) the then Parliamentary Under-Secretary of State for Defence and Minister for Veterans, Mr Kevan Jones MP, wrote to Ms Moffat MP in reply to letters from her dated 27 January and 4 March 2009 confirming that the Certificate of Service issued in time for the Claimant’s first application for ILR did not contain a record of the paragraph of the Queens Regulations under which his discharge had taken place. The explanation given was as follows:
“This was an unintended consequence of the new Joint Personnel Administration System, which generates the Certificate of Service and would not have been appreciated by [the Claimant’s] unit. This problem has since been addressed and resolved ….”
[77]The Claimant was very upset by the Notice of Decision, which referred for the first time to his conviction in the context of his application for ILR, and on 23 March 2009 he wrote to the UKBA stating that his application for ILR had been refused twice for two different reasons and complained that he had not been given any right of appeal against the second refusal and requested that he be permitted to appeal under Article 8 ECHR. He said this: "I really believe that I deserve a second chance in life. As you can see from the letter enclosed, I am still an asset to this country, and its Armed Forces. I have made a lot of friends here and have family here as well. I have been living here continuously for the past 8 years and returning to Cameroon at this moment will be extremely difficult for me as I have lost the Cameroonian way of life. My future is bleak in Africa. I really have a lot more to offer to the British society. I would love to stay in this country that I love and have served. I would love to enjoy the freedom and safety that I once protected with diligence. I am still liable for service and I have done my utmost to stay on the right side of the law and I intend to do so forever.”[78]On 17 April 2009 Mr Nicholas Soames MP wrote to the Parliamentary Under-Secretary of State for Defence on the Claimant’s behalf, requesting that his case be reviewed. This resulted in a further letter from Mrs Homer to Mr Soames dated 6 May 2009 (which, incidentally, made no reference to the Claimant’s letter to her of 5 December 2008), again doubtless drafted on her behalf. It reiterates the history, but again made no reference to the fact that the time limit for responding to the letter of 12 June 2008 the previous year had been ignored in the decision letter of 19 June 2008. It refers to the “non-negotiable” nature of the requirement to supply evidence of the paragraph of the Queens Regulations under which his discharge had taken place. I will quote a further part of that letter which appears to respond to the suggestion made by the Claimant that it was only the failure to deal with the Queens Regulations issue that stood in the way of a successful application for ILR:
“Further, it should be stressed that the assumption made by [the Claimant] that the grant of indefinite leave to remain was conditional only upon the supply of the relevant QR paragraph detail is incorrect. The refusal was couched in terms of the failure to supply this evidence as the primary reason for the decision, that that did not include the taking of other factors – including the applicant’s conviction – into consideration, in either of his applications. All known information and evidence was taken into full consideration by the UK Border Agency on both occasions, and both decisions were based on this balancing consideration. The Secretary of State is entitled to take into account any previous convictions and it is not considered that [the Claimant’s] conviction was given undue weight in the consideration of his applications. … [The Claimant] has no valid leave to remain in the United Kingdom, as explained in the reasons for refusal letter of 3 March (sic), and is liable for removal as an overstayer. Consideration will now be given to his Human Rights claim, and he will be notified of a decision in due course.”
[79]The suggestion that his conviction was taken into account in the earlier refusal decisions does not really bear scrutiny when considered against the background of what was actually said in each of the refusal letters and the internal documentation disclosed in these proceedings, neither of which supports the contention that the conviction was considered at all at that stage. It is, however, the case that at that stage the Secretary of State had available the information concerning the Claimant's conviction and thus could have referred to it had it been thought appropriate to do so. The taking of inconsistent positions by the Secretary of State can be a material factor in assessing the decision-making process for the purposes of judicial review (cf. paragraph 110 below) and there is no doubt that the taking of inconsistent positions in respect of previous convictions for the purposes of evaluating an Article 8 argument is highly material: see Omojudi v UK [2009] ECHR 1820/08 at [42].[80]It was at this point in the process that the Claimant sought the advice of The Immigration Advisory Service which on 14 May 2009 sent a very detailed letter setting out the basis for the contention that the refusal decision of 13 March 2009 was irrational, disproportionate and unreasonable. In relation to the suggestion that the Secretary of State was not satisfied that the Claimant's "character and conduct is conducive to public good” (see paragraph 73 above), the following argument was advanced:
“Therefore, it is submitted that the Army found the Claimant to be of sufficiently good character to allow him to continue acting and to serve the British Army. Therefore it is irrational and disproportionate, as well as unreasonable, for the Secretary of State to now refuse his application for indefinite leave on the basis of a conviction for which the Army itself did not find sufficiently grave to remove the Claimant from service.”
[81]I will return to that argument at paragraph 109 below.[82]On 12 June 2009 the claim for judicial review of the decision of 13 March 2009 was lodged and on 21 July 2009 Summary Grounds of Defence were lodged on behalf of the Secretary of State. It was the action thus constituted that Ouseley J considered on 12 August 2009 when he refused permission and which Blair J considered on 9 November 2009 when he granted permission.[83]It was in September/October 2009 that the second blot on the Claimant's copybook occurred. I should turn to that.

The second blot on the Claimant's copybook

[84]It is, perhaps, important to set this blot against the background of what the Claimant had conveyed to “the Home Office” about his father.[85]In his letter of 25 July 2008 he had said to the person who had sent him the letters of 12 and 19 June 2008 that, as a result of what had happened, he could not “even visit my father who is currently unwell in Africa.” In her letter of 3 September his MP mentioned his concerns about his father who was unwell. In his letter of 5 December 2008 in reply to Mrs Homer’s letter of 27 November the Claimant referred specifically to this matter (see paragraph 68 above).[86]It will be clear that, irrespective of what may have been the position with his father during most of 2009, the Claimant was very much preoccupied with the refusal of his application for ILR and with the legal proceedings consequent upon that refusal. His account (which is not challenged and is supported by a medical report subsequently obtained: see paragraph 87) is that on 26 September 2009 he received an e-mail from his brother in Cameroon telling him that their father was unconscious, had been rushed to hospital and taken into intensive care. The Claimant had not seen his father for about 3 years, had known for over a year that his health had been failing and was, it may be thought, understandably very concerned. (His father had, incidentally, come to his Passing Out in 2004.) He borrowed some money from his cousin and, without taking any advice from his solicitors or anyone else, flew out 2 days later using his old Cameroon passport which had not expired. He booked a ticket with a return flight on 30 October 2009. Using his old passport, together with certain documents with which he had been issued in the Army, was impermissible.[87]He was told in due course by his father that he had had a stroke although a medical report obtained a few months ago indicated that, as someone who suffers from lung disease and an unstable and high blood pressure, he suffered “internal shock” caused by the high external temperatures at the time, lost consciousness before being resuscitated in hospital. The Claimant (who is the eldest son) spent a great deal of his time with him when back in Cameroon during which time his father’s health improved and stabilised.[88]In his witness statement the Claimant said this about this episode:
“I fully understand that what I did was wrong. I should not have left the country using my old passport. But I felt that I had no choice as I was really worried about my father, but at the same time did not want to jeopardise my case and thought that if I returned to Cameroon it would be automatically decided against me. I was very worried about my father and his health and I truly believed that he was going to die and I could not bear not to see him. I did not tell anyone or consult my solicitors until after I returned to the UK. I did not understand at the time that my claim for judicial review would remain pending even if I returned to Cameroon. I also feared that I would not be able to get back into the UK.”
[89]There is, as I understand it, no suggestion that the Claimant was other than entirely open with the immigration officials at the airport on his return about the background and what had happened. He was detained for a few days and then released.[90]He was back in the UK by the time of the hearing before Blair J. I do not know whether reference was made to this aspect of the background before him, but, of course, the position taken by the Home Office in relation to it would not necessarily have been known by then in any event. Given the way the issue of his father’s health had been raised in correspondence before then (see paragraph 85 above), it might have been anticipated that a tolerant view could have been taken. However, that was not to be as the further decision letter of 25 February 2010 demonstrated.[91]Blair J had directed that the substantive hearing be listed “as soon as possible”. Given the volume of work being considered by the Administrative Court, that was precisely 8 months later.

The decision letter of 25 February 2010

[92]In the meantime the Secretary of State issued a further decision letter dated 25 February 2010. It was not, as I understand it, sent to the Claimant on or around its date, but with the detailed grounds of resistance served on 23 March 2010. It was sent to Immigration Advisory Service.[93]The letter recited the history of the original refusal of ILR on the basis of the failure to provide evidence of the paragraph of the Queen’s Regulations under which he was discharged. It still made no reference to the letter of 12 June 2008 and the failure to honour the period originally given to provide such evidence. The letter was said to be a reconsideration of his application “in the light of developments subsequent to 13 March 2009, including the matters advanced in the Grounds of Judicial Review … and the manner of your entry to the country in October 2009.” The substantive paragraphs of the letter are paragraphs 8-12, but paragraph 7 quoted paragraph 322(5) of the Immigration Rules (see paragraph 8 above) in relation to the character and conduct of the applicant. Paragraphs 8-12 read as follows:
“8. In determining the character and conduct of a person, where an offence has taken place, the nature of the offence committed; the date of conviction; the nature of the sentence imposed, and whether that sentence has been served, undergone or complied with are all material factors. 9. In view of the fact that you were convicted of a sexual offence on 19 July 2005, and given a sentence of six months, varied to 112 days on appeal, your conviction remains unspent. Under the Rehabilitation of Offenders Act 1974 the rehabilitation period for the offence is seven years. Due to the nature of the offence, and the fact that it was not a spent conviction, the Secretary of State takes the view that your conviction casts very significant doubt upon your character and conduct. 10. The Secretary of State also notes that you entered the United Kingdom on 30 October 2009 from Douala, via Tripoli (Libya), and presented yourself to the EU control bearing a British Army Identity Card and NATO movement orders dated 20 June 2009, with movement validity until 20 December 2009. The Immigration Officers at Gatwick interviewed you on 30 October 2009 and you stated that you had been discharged from the British Forces but had since re-joined. You further added that since your discharge you had kept your British Army Identity Card as a souvenir, which should not have been in your possession. 11. You also presented your passport when asked, which held no valid UK entry clearance or any other endorsement which gave you authority to enter the UK. You were aware that you are not entitled to travel on your British Army Identity Card as you were no longer in the Armed Forces. You were also aware that you had no other valid visa or entry clearance to enter the UK. However, you used deception by presenting invalid documents to gain entry into the UK. The Secretary of State considers that this casts further doubt upon your character and conduct. 12. The Secretary of State has balanced your conviction and the fact that you used deception to gain entry to the UK against the factors that you have advanced in your Grounds which you contend support your application for Indefinite Leave. These include the circumstances of your client’s offence, that it was his first offence, and that he pleaded guilty, that your client was not discharged from the Army following the completion of his sentence, his continued service in the Army, and the positive statements about your client’s character contained in his Certificate of Service and his personal references (and in particular the reference dated 5 September 2007 from Major Keily). The Secretary of State has come to the conclusion that, on balance, your character and conduct are such as to render it undesirable to permit you to remain in the United Kingdom.”
[94]The letter was said expressly to replace the letter of 13 March 2009 and it was confirmed that reliance had not been placed on the fact that the application for ILR was made at a time when the Claimant did not have leave to remain in the UK.[95]The decision letter contained no decision on or reference to the outstanding Article 8 claim mentioned in Mrs Homer’s letter to Mr Nicholas Soames MP on 6 May 2009 (see paragraph 78 above). It contained two mistakes concerning the period before which the conviction became spent. First, the period runs from the date of conviction which was 25 May 2005, not 19 July 2005. Second, the relevant period is 5 years, not 7 years: see paragraph 73 above.

Amended Statement of Facts and Grounds

[96]In order to address the matters raised in the new decision letter, amended grounds were lodged on 2 June 2010. Those grounds included a challenge to the failure to determine the Claimant’s application under Article 8.[97]On 15 June 2010, the Treasury Solicitor requested a stay of the hearing of the proceedings to await the court’s decision in R (Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin) which was in fact handed down on 23 June 2010, whereupon the stay application was no longer pursued.[98]Strictly speaking, permission has not been obtained to amend the grounds to include the Article 8 claim (which, it is argued, has evolved in the Skeleton Argument from the way in which it was formulated in the draft Amended Grounds) and formal objection was taken to it. However, Mr Ruck Keene sensibly anticipated that the court would want to entertain the substance of the arguments and indeed I have done so in a way that will enable a decision to be made on those arguments.[99]To complete the picture, by a letter dated 24 June 2010, said to be “supplemental to the letter sent on 25 February”, the UKBA wrote to the Claimant’s solicitors setting out what was said to be the Secretary of State’s approach to Article 8 in this case. Attention was drawn to Mrs Homer’s letter of 6 May 2009 (see paragraph 78 above) and it was repeated that a decision would be made and notified “in due course”. Paragraphs 5-7 of the letter are in these terms:
“5. … In particular, consideration will need to be given to your client’s Article 8 claims if he fails to voluntarily depart and it is necessary to consider taking enforcement action against him. If it is decided to take enforcement action, it will be necessary to make an immigration decision in relation to your client, which will provide him with a right of appeal at which time he will be able to rely on Article 8. 6. For the avoidance of doubt, it is not accepted that the decision to refuse your client’s application for indefinite leave to remain engages Article 8. As noted above, your client did not have leave when he made this application, so the refusal of this application did not in any way alter any private life he had at the time he made his application. If, which is denied, not granting your client indefinite leave to remain does interfere with his private life, then it is considered that this interference is proportionate. As noted, the effect of this decision is to leave your client in the same position as when he applied. Further, regard has been laid to your client’s conviction and the fact that you used deception to gain entry to the UK, as well as to the factors that you have advanced in your Grounds and supporting material regarding your client’s good character. These include the circumstances of your client’s offence, that it was his first offence, and that he pleaded guilty, that your client was not discharged from the Army following the completion of his sentence, his continued service in the Army, and the positive statements about your client’s character. The Secretary of State is satisfied that refusing your client indefinite leave to remain is proportionate and in the public interests in preventing disorder and crime, and in maintaining immigration control. 7. As stated, further consideration of your client’s Article 8 claims will take place if and when it is necessary to make an immigration decision to enforce his removal. This consideration will of course be based on all of the up to date material known at that time.”
The submissions (a). the history of decision-making[100]Miss Mountfield and Miss Knights draw attention to the full decision-making history in this case in support of the argument that the decision letter of 25 February 2010 (supplemented by the letter of 24 June) is flawed. Mr Ruck Keene contends that the focus of the court’s attention should be upon those two decision letters only.[101]There is some force in both those submissions. Where, however, what might be termed the “final” decision letter continues to maintain a previously flawed position without correction or withdrawal of that flawed position, it seems to me to be an unduly blinkered approach for the Court to ignore what had gone before. This approach is consistent with those cases where it has been held that errors in the process prior to the material decision should, in appropriate circumstances, be taken into account by the Secretary of State when making that decision: see, e.g., SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225. If the error is not acknowledged and explained, it is impossible to see how it can be said to have been taken into account.[102]I have indicated previously (see paragraph 53) that an unfair approach was adopted initially to the Claimant’s application for ILR when the decision was made before the Claimant had had an opportunity to deal with the issue raised on the Secretary of State’s behalf. The existence of the letter of 12 June 2008 and its deadline was not mentioned in any letter on behalf of the Secretary of State thereafter. No-one apologised, no-one acknowledged that it was wrong to have made the decision when it was made and everyone on the Secretary of State’s behalf proceeded as though the letter had never been written and the deadline had never existed. Mrs Homer was plainly unaware that it had been written (see paragraph 78 above). It is fair to say that the Protocol Letter written by IAS on the Claimant’s behalf dated 14 May 2009 did not make much of this point, but it was focused on the decision of 13 March 2009 (see paragraph 71) which itself had made no reference to the issue. However, by the time of the decision letter of 25 February 2010 the Claimant’s original Statement of Facts and Grounds had referred to the matter at paragraphs 42 and 43. Since that letter was intended to address issues raised in the judicial review application, it is surprising that the opportunity was not taken to acknowledge that the procedure had gone wrong at this early stage. However, paragraphs 3 and 4 of this decision letter simply repeat what had been said in earlier letters (including Mrs Homer’s letter to the Claimant’s MP of 27 November 2008) and made no concession about the unfair procedure adopted.[103]Now it well may be said that all this was simply history and of no relevance. The first observation one might make is that, if it is so, why was it necessary to refer to it at all? The difficulty from the Secretary of State's position, as I see it, is that if the letter of 25 February 2010 is intended to demonstrate the thought process involved in a considered approach to rejecting the application for ILR, it starts from an assumption that the Claimant had failed to comply with reasonable requests concerning an important element of his application at the outset. That assumption was unfair. In the first place, he undoubtedly tried to respond to the request, but through no fault of his (see paragraph 63) he could not comply with it in the terms with which it was put to him. Secondly, he was not given a fair opportunity to try to deal with it before the deadline for responding to it expired. There is, I might add, an argument, not fully developed before me, that the alleged requirement to provide the documentary evidence sought on the Secretary of State’s behalf in the letter of 12 June 2008 was not a legally valid requirement: see R (Pankina) v Secretary of State for the Home Department [2010] EWCA Civ 719. However, irrespective of that, the evidence is, to my mind, clear that the Claimant could not have complied with the request in the form put forward on the Secretary of State’s behalf because the Army at the time could not provide the documentary material in that form. I cannot see how it could be said to be fair to continue to maintain that the Claimant in effect failed to deal with his application properly at the outset. However, that is what, as I read it, is maintained in the decision letter of 25 February, the matter not having been mentioned at all in the Notice of Decision of 13 March 2009. It came back into the picture again in Mrs Homer’s letter to Mr Soames of 6 May 2009 (see paragraph 78) and, as I have said, it found its way into the decision letter of 25 February.[104]For my part, I would characterise this factor of the history, to the extent that it remains relied upon on behalf of the Secretary of State, as wholly irrelevant. No decision should have been taken adverse to the Claimant which attached any significance to what seems to have been treated repeatedly as a “failure” on his part to put forward his initial application for ILR in a correct manner.

(b) the conviction

[105]I will turn now to the way in which other aspects of the Claimant’s application were dealt with in the letter of 25 February 2010. That letter dealt with the relevance of his conviction at paragraphs 8 and 9 (see paragraph 93 above). The discussion in those paragraphs was prefaced by reference (in paragraph 7 of the letter) to paragraph 322 (5) of the Immigration Rules: see paragraph 7 above. The justification for treating his conviction as a relevant consideration was its “nature” and the fact that “it was not a spent conviction”. (By then, of course, the conviction was 3 months away from becoming "spent": see paragraphs 73 and 95 above.)[106]Miss Mountfield’s challenge to this part of the decision letter starts from the premise that paragraph 276O of the Rules does not require the Secretary of State to be satisfied as to an applicant’s character for the applicant to qualify for ILR. The Rules dictate that the applicant should simply be “discharged … on completion of engagement” which is, as one might expect, interpreted in the Immigration Directorate Instructions (in paragraph 6.2, chapter 15) as meaning “in the normal course of events”. A dishonourable discharge would, of course, be a different matter altogether.[107]I do not think that Miss Mountfield suggests that compliance with paragraph 276O represents a complete green light to the grant of ILR, thought it must, one supposes, represent a starting-point that would only be displaced or disregarded on some convincing and substantial ground. Service in the Armed Forces can represent (as it did for the Claimant during one part of his service) a dangerous matter undertaken for the benefit of the country as a whole and, accordingly, that would ordinarily be something of very considerable significance in favour of an applicant for ILR. However, one could, for example, envisage a situation where a soldier who had given exceptional service to the Army is discharged on completion of 4 years or more service such that he would, prima facie, be able to rely on paragraph 276O, but then commits some quite dreadful crime such as murder, rape or something in the league of truly serious criminal activity which all right-thinking people would say would disqualify him from achieving ILR. It would require little by way of reasoning to justify refusal of ILR in that kind of situation: cf. N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094. However, where, as here, an offence is committed during a person’s Army career which(a) does not result in a dishonourable discharge and(b) has not been counted against the soldier in any way during the remainder of his service does at least, in my judgement, give rise to the need to investigate the circumstances closely before simply saying that the nature and existence of an unspent conviction “casts very significant doubt upon [the person’s] character and conduct.” Chapter 9 section 4 of the IDI, at paragraph 9.5, states that specific reasons must be given for assessing someone’s character and conduct as being sufficient to justify refusal of ILR. The current provision of the IDI relevant to this is paragraph 9.3 (which I am told is identical to paragraph 9.5 of the earlier version) which reads as follows:
“The reasons given must be specific; vague generalisations about a person's character, conduct or associations will not be acceptable. Caseworkers should only make reference to the matter in question e.g. where a person is being refused on the basis of their conduct then “threat to national security” should always be removed from the refusal wording ….”
[108]Whilst the information previously available to the Secretary of State about the conviction and its consequences was scant, considerable information was supplied in the original Statement of Facts and Grounds. In any event, there must be some obligation in circumstances such as those which arose in this case for the Secretary of State to invite the provision of greater detail: the fact that there was no dishonourable discharge and the Claimant continued his service after the conviction raised at least the question of how serious it was in the eyes of the Army and consequently more generally.[109]Reflecting the argument advanced on the Claimant's behalf by The Immigration Advisory Service in its letter of 14 May 2009 (see paragraph 80 above), Miss Mountfield submitted that the State should "speak with one voice" about the seriousness or otherwise of the Claimant's conviction. Her argument did not go to the extent of suggesting that the Secretary of State was bound by the Army's view about what occurred: if it had, I would not have been inclined to accept it. However, it must plainly be a highly material factor and one which one would expect to see referred to and analysed in a decision letter that engages properly with the issues. Equally, though, a consistent and fair approach to the conviction, once its existence is known, on the part of the Secretary of State would ordinarily be expected: see paragraph 79 above.[110]In my judgment, dealing with the Claimant's conviction in the way that it was in the letter of 25 February 2010 neither engaged with the substance of what he did nor gave more than an extremely superficial reason for suggesting that his character and conduct had been shown to be sufficiently wanting to warrant denying him ILR. Any fair-minded assessment of the Claimant's character and conduct does require a true balance to be struck between the conviction and its surrounding circumstances, on the one hand, and the very positive references he received from the Army, those references to be assessed also against the background of that part of his service of this country in what was a very dangerous part of the world at a very dangerous time, on the other. That latter, highly material, aspect of the background does not appear to have been reflected at all in the Secretary of State's thinking as reflected in the letter. Equally, resurrecting the conviction as a reason for refusing ILR after two clear opportunities to do so (see paragraphs 55 and 66 above) is hardly fair or consistent even though it had been referred to as a reason for declining the application for naturalisation (see paragraph 40).

(c) the "deception to gain entry to the UK"

[111]By the time of the letter of 25 February 2010 the second blot on the copy book had occurred (see paragraphs 84-90 above).[112]In what was said to be the "balancing exercise" carried out by the Secretary of State, it was held against the Claimant that he "used deception to gain entry to the UK" (see paragraph 12 of the letter quoted in paragraph 93 above and repeated in paragraph 6 of the letter of 24 June 2010 quoted in paragraph 99 above). In paragraph 11 of the letter of 25 February 2010 it was said that he "used deception by presenting invalid documents to gain entry into the UK."[113]Whilst Miss Mountfield did not suggest that this analysis was factually incorrect, in fact what he did amounted to an attempt to obtain entry by the presentation of invalid travel documents. He did not in fact secure entry to the UK as a result since the invalidity of the documents was identified at the point of entry.[114]If one leaves aside for the moment the background to what he did (see paragraphs 84-90 above), one factor, which derives from the consideration mentioned in the preceding paragraph, that ought to be mentioned is this: unlike many who come to this country illegally and seek to remain here contrary to immigration control, the Claimant did not use a false passport (either purchased or supplied to him by an agent) whether in his name or the name of someone else. He used a passport and documentation in his own name which, in the event, he was no longer entitled to use. Again, it is not to be condoned, but in the scale of the fraudulent activities that the Secretary of State's representatives (and indeed the Courts) see in this context, this was hardly the most egregious sin.[115]The way in which this transgression was held against the Claimant was that it "casts further doubt upon [his] character and conduct." This conclusion was reached without any invitation to him or his representatives on behalf of the Secretary of State to explain his conduct. That he acted as he did was, he says, explained to the immigration officials at the airport and the general background would thus be in his file somewhere. Equally, in his file somewhere would have been the letters referred to in paragraph 85 above. One would have thought that his unanswered letter to Mrs Homer of 5 December 2008, when considering the explanation given to the immigration officials at the airport, might have struck a chord with the official drafting the letter of 25 February 2010, but it does not appear to have done so.[116]The Amended Statement of Facts and Grounds dated 2 June 2010, in paragraphs 112-116, raises in clear terms the circumstances in which the Claimant returned to Cameroon and used the documentation to which I have referred. Reference was made to the letter to Mrs Homer.[117]It might have been anticipated that the opportunity would be taken to address these matters in the letter of 24 June 2010, but all that was said was as is quoted in paragraph 99 above. Yet again there was a failure to engage with the substance of what the Claimant did against the background of a polite and well-constructed letter to Mrs Homer, sent some months prior to the material events, explaining the difficulties the Claimant faced in relation to visiting his ailing father.

(d) conclusion

[118]It is asserted in paragraph 12 of the letter of 25 February 2010 that a "balancing exercise" was carried out on behalf of the Secretary of State with result that it was concluded that the Claimant's "character and conduct [were] such as to render it undesirable to permit [him] to remain in the United Kingdom".[119]This conclusion was, of course, one purportedly arrived at under paragraph 322(5) of the Immigration Rules (see paragraph 8 above). It is a sufficiently sensitive conclusion to put forward for the relevant IDI to require it to be considered by a Senior Caseworker: paragraph 9.6 of section 4 of Chapter 9. There is an issue between the parties about what should be included in the factors to be balanced. Drawing on CB (United States) v ECO [2008] EWCA Civ 1539, which dealt with the similarly worded paragraph 320(19) (see paragraph 9 above), Miss Mountfield submits that an important factor in this evaluation is the risk to the public of permitting the applicant for ILR to stay in the UK. Mr Ruck Keene submits that the exercise requires a much broader approach and must focus on the "public good" generally, not just upon a risk assessment.[120]I can agree with Mr Ruck Keene's argument in a general sense, but it seems to me that where reliance is placed upon this provision (which contains very general words such as "undesirable", "character", "conduct" and "associations") it is important to look closely at the context in which it is being deployed and to see the reasoning which leads to its deployment. Where reliance is placed, at least in part, on one previous conviction then a number of factors will be relevant including the intrinsic seriousness of the offence, the circumstances generally and the risk of its repetition. Those matters will assist in informing the question of whether it is "desirable" to permit the applicant for ILR to remain in the UK indefinitely. As I have observed previously (see paragraph 107 above), in some instances the offence may be so serious that little by way of explanatory justification for relying on this paragraph may be required: the answer may be obvious. Where, however, the offence is in a different part of the criminal spectrum, certainly if very much at the lower end, then far greater justification would be required, particularly if it is the only occasion where the person concerned has broken the law. That does not mean that it would not be open to the Secretary of State, in some circumstances, to treat a relatively minor first offence as justifying recourse to this paragraph. However, it does mean that the reasoning would need to be focused and compelling. It would need to demonstrate that both the positive and negative aspects were weighed up fully and fairly, not merely the positive and negative aspects of the offence, but also other (potentially positive) factors that would make it "desirable" that the applicant should be permitted to remain in the UK. The same seems to me to apply also when a breach or attempted breach of immigration requirements is deployed as a reason for invoking the paragraph. The underlying reasoning must, in my judgment, demonstrate clearly why the provision has been invoked and be capable of withstanding rational analysis.[121]Against that background, I am bound to say that, for reasons that will have been apparent from the observations I have made whilst considering the history and the submissions, it is impossible to accept that a true and fair balancing exercise was carried out prior to the decision reflected in the letter of 25 February 2010. Perhaps more accurately, it should be said that the reasoning, such as it is, does not demonstrate that any fair and considered consideration was given to the weight to be attributed to either the positive factors or the negative factors concerning the Claimant's "character" and "conduct". Weight appears to have been placed unfairly on a wholly irrelevant factor (see paragraph 104). There has been inconsistency in the suggested relevancy of his previous conviction (see paragraphs 55, 66 and 110 above). When the conviction has been relied upon, there has been no investigation of its circumstances, merely a mechanical reference to its "unspent" nature giving rise to a "casting of doubt" upon the Claimant's character. There has been no true attempt to balance this (relatively minor) adverse factor that arose some years ago when he was much younger against the distinctly positive factors associated with all other aspects of his Army career, most particularly his period of service during a particularly dangerous period in Iraq. There has been no attempt to engage with the circumstances in which he sought to evade immigration control in the way he did when his father was taken ill against the background of his own representations to Mrs Homer (and the representations of others on his behalf) about the dilemma he faced.[122]My comments are directed specifically to the letter of 25 February 2010. The letter of 24 June 2010 took the matter no further forward despite the Amended Grounds advanced about 3 weeks previously.[123]Simply taking the exercise required by paragraph 322(5), it does not appear to me to have been carried out in a way that engages with the true issues and reaches a rational view. The decision-making process overall demonstrably failed to address fairly and fully the true issues. It appears to have been a tick box process in which crosses were placed in the relevant box whenever the opportunity arose without full and fair consideration being given to whether it ought so to be placed.[124]That conclusion, which is arrived at without specific reference to the suggested impact that Article 8 should have on the Claimant's position, is, in my judgment, sufficient to dispose of this application in favour of the Claimant. Subject to any argument about the terms of relief, it would lead to the quashing of the decisions reflected in the letters of 25 February and 24 June 2010.

Article 8

[125]Having reached the conclusion indicated above on traditional public law grounds by reference solely to the way in which the relevant Immigration Rules have been applied, it is unnecessary for me to reach a concluded view on certain other arguments maintained on the Claimant’s behalf. Those arguments focus upon when and in what circumstances Article 8 should play a part in the decision-making process affecting him. Out of deference to the arguments I have received, I will express some tentative views, but I make it plain that they do not represent the basis for my decision. If my principal conclusion is the subject of challenge in the Court of Appeal, the Claimant would presumably be entitled to raise the additional arguments by way of a Respondent’s Notice. It will be apparent, of course, that the reasons for my decision have not involved any merits-based decision on Article 8 grounds.[126]When Article 8 is engaged the well-established balancing exercise must take place: see, e.g., R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 and Huang v Secretary of State for the Home Department [2007] 2 AC 167. The Secretary of State’s position in the Claimant’s case is that Article 8 has not been engaged at any stage of the decision-making process thus far, but that it will be engaged “if and when it is necessary to make an immigration decision to enforce his removal”: see paragraph 7 of the letter of 24 June 2010 noted at paragraph 99 above. Whilst there is some arguable ambiguity about paragraph 6 of that letter, the position appears to be taken that Article 8 was not engaged at the time the decision to refuse ILR was taken although Mr Ruck Keene has submitted that, if this was a wrong position to have taken, then appropriate consideration was given to the Claimant’s Article 8 rights at that stage.[127]Manfully though the submission was made, it does involve trying to ride two horses at the same time. It does seem to me that the true effect of what has or has not been done on behalf of the Secretary of State in relation to the Claimant’s application for ILR is that no consideration has been given to any Article 8 issues. That appears to be the intended effect of the decisions reflected in the letters of 13 March 2009 and 25 February 2010 and I do not consider that the “supplemental” letter of 24 June 2010 changes that.[128]That being so, Miss Mountfield invites me to conclude(a) that it was disproportionate and/or irrational not to have taken Article 8 considerations into account in deciding on the application for ILR irrespective of any request by the Claimant of the Secretary of State to do so and/or(b) that was it was unreasonable and irrational not to do so in the letter of 25 February 2010 after an express request to do so had previously been made by the Claimant.[129]As to the first of these contentions, Miss Mountfield says that it is routine practice for the Secretary of State to take into account Article 8 when determining an application for ILR. She draws attention to R (Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin). That case, of course, concerned the interests of a mother, her husband and their two young children assessed against the background of a policy that generally saw it as inappropriate to enforce the removal of parents and children who had lived in the UK for a continuous period of 7 years or more. One can well see why the exclusion of Article 8 considerations at that point in the process would not have made much sense. The same can be said of the example given by Collins J at [16] of his judgment in R (Suphachaikosol) v SSHD [2010] EWCHC 1817 (Admin). But do those cases evidence the proposition that Article 8 considerations should invariably be taken into account by the Secretary of State when considering whether to grant ILR? There is, of course, no doubt that the Immigration Rules made under the Immigration Act must be implemented in order to give effect to Convention rights: R (Pankina) v Secretary of State for the Home Department [2010] EWCA Civ 719. However, that does not, in my judgment, mean that the Secretary State is necessarily obliged to consider them at the stage of deciding whether to grant ILR: it depends on the provision under which ILR is sought and the particular circumstances of the application. There may be cases (such as those to which I have referred) where it would make little or no sense not to take into account Article 8 rights at that stage. On the other hand, in a case like the present (where the Claimant is a single man with no obvious family life in the UK, though undoubtedly a private life), it would not necessarily be illogical or irrational not to do so, but to delay doing so until the decision to enforce removal is taken, if it is. At least at that stage a right of appeal is generated. One can sympathise fully with the concerns and uncertainties that this may engender for someone in the position of the Claimant and one can understand also the general preference for having a decision which could be the subject of an appeal on the merits to an independent tribunal. One can also see that in some circumstances collecting all these matters together and making a decision at one point would be an obviously satisfactory, efficient and fair process. But it does not seem to me to have been irrational not to take account of Article 8 considerations (even though they could plainly have been considered) at any earlier stage in the process concerning the Claimant provided, of course, that they are considered fully at a stage in the process when, if the decision is adverse, an appeal to an independent tribunal can take place. This seems to me to be consistent with the approach of Wyn Williams J in Daley-Murdock and Collins J in Suphachaikosol. I note that Ouseley J, when he considered this case on the papers in August 2009, said that “the Article 8 issue does not yet arise.” I do not consider the approach to be inconsistent with what was said in Pankina.[130]It follows, therefore, that I would not, for my part, have been persuaded that leaving Article 8 out of account when considering ILR in the Claimant’s case was irrational or unfair. Does the fact that he requested that Article 8 be taken into account in his letter of 23 March 2009 (see paragraph 77 above) make any difference? For my part, I do not think it can render irrational something that is not otherwise irrational.[131]Reliance is also placed on Mrs Homer’s letter to Mr Soames (see paragraph 78) where she said: "Consideration will now be given to his Human Rights claim, and he will be notified of a decision in due course.” (My emphasis.) Mrs Homer’s letter certainly gave the impression that the Claimant’s free- standing Human Rights Act claim would “now” be considered and he would be notified of the decision “in due course”. In other words, she did not say explicitly that the Article 8 issues that may affect him would be considered as part of the decision whether to take enforcement action, even though that would, subject to any challenge to the decision 13 March 2009, be the next step in the process. Mr Ruck Keene has submitted that this approach underlay the sentence in the letter quoted above.[132]Given the way in which the Claimant’s application has been handled throughout, I am uneasy about accepting that contention. However, at the end of the day, whether I accept it or not, it seems to me to be academic and, in any event, not prejudicial to the Claimant’s position. In the first place, the longer the period before the Article 8 issues that affect him are considered by the Secretary of State, the stronger those matters are likely to be in his favour. Second, and to some extent related to the first matter, the precise details of his “private life” that he would wish the Secretary of State to consider had not been fully articulated at that stage. He may well be advised to set them out in some detail once these proceedings have run their course so that, if it be the case, the Secretary of State can be left in no doubt as to the suggested strength of those issues. He may, therefore, be in a better position now than he would have been at an earlier stage in the proceedings.[133]For those reasons, had I not been persuaded to intervene in respect of the two decision letters to which I have referred above, I would not have been persuaded to interfere on what I will call loosely “the Article 8 grounds”. Conclusion[134]Subject only to any submission concerning the precise terms of the relief, I would quash the decisions of 25 February 2010 and 24 June 2010 and remit them for reconsideration by the Secretary of State in the light of this judgment.[135]I should like to express my appreciation to all Counsel for their assistance in this case.

Cited in 5 later judgments