Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226 (Admin)

[2015] EWHC 1226 (Admin)Case No CO/10566/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre, The Priory Courts, 33, Bull Street, Birmingham B4 6DSDate 30 April 2015
Before
HHJ WORSTER(sitting as a High Court Judge)
Between
Regina (on the application of Daoud Zermani)ClaimantSecretary of State for the Home DepartmentDefendant
Christopher Jacobs (instructed by Thaliwal and Co) for ClaimantShakil Najib (instructed by Treasury Solicitor for DefendantHearing Hearing date: 20 March 2015Draft Judgment: 27 March 2015
JudgmentHHJ WORSTER :
[1]The Claimant seeks an order quashing the decision of the Respondent dated 19 December 2012 refusing his application for leave to remain in the United Kingdom based on his Article 8 ECHR private life claim. HHJ McKenna granted permission on one ground, namely the failure to consider whether or not to grant leave to remain outside the Immigration Rules.[2]The Claimant is a national of Algeria aged 43. He says that he entered the UK in 2004, although he was only granted entry clearance as a visitor for 6 months in March 2006. Although that permission expired in September 2006, he remained in the country. It seems that he destroyed his own passport and acquired a forged one, passing himself off as a French National. On 19 September 2009 he was arrested for using a forged French passport and subsequently sentenced to 4 months in prison. It was only whilst he was serving his sentence that he made a claim for asylum. That claim was refused on 10 June 2010. The Immigration Judge hearing his appeal against the asylum decision had no doubt that his account was a fabrication. As to one matter (his brother’s service in the US Army) the Judge may well have been wrong, for subsequent evidence has persuaded the Respondent that this aspect is credible. But his passport offence, the dubious timing of his asylum application and his illegal stay in the UK are beyond doubt.[3]The Application The Claimant exhausted his appeal rights in September 2010. In November 2011 he made the application which leads to these proceedings. His solicitors wrote a detailed and well structured letter to the Respondent. It refers to his conviction and some of the other difficulties in his immigration history, but then seeks to demonstrate that his conduct has changed and that he has become a particularly valuable member of his community.[4]The whole thrust of the application is based upon that argument. There is no other basis for a grant of leave. Indeed towards the end of that letter, the point is made expressly by the solicitor writing the letter, who says this: The Secretary of State is requested to give due consideration to the vital role our client plays within the community in various respects. He would not only be dearly missed but his place would be hard to fill in terms of the value he has provided to the community The letter then refers to the “devastating impact” both for himself and the organisations he has assisted if he is removed. It submits that removal would be disproportionate. It ends by requesting that the Secretary of State applies her discretion and grants leave to remain outside the Rules.[5]The application relies upon a series of letters from responsible figures within his local community of Wrexham. The application describes them as “people .... of good character and professional standing”. It is hard to argue with that description. It is an impressive list of people representing various groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police. These are not his friends and relatives, but people who are from the community and can legitimately be regarded as speaking for it.[6]The first letter is from a Research Officer at Bangor University who has been undertaking work on a project relating to the barriers to Higher Education faced by refuges and asylum seekers. She met the Claimant in his work with the Wrexham Refugees and Asylum Seekers Support Group (“WRASSG”). She describes him as having a “key role” in the organisation. He acted as a mentor and consultant on a joint project between that group and the University. She knows him to be a “well respected figure in the town” and tells of the fact that he had been admitted onto a degree course at Glyndwr University and that the University had waived his fees until he was awarded refugee status.[7]The second letter is from a Special Health Visitor for Vulnerable Groups. She writes of his involvement in all aspects of the asylum/refugee community in Wrexham and of his invaluable help in the work she does, providing them with support, accompanying them to medical appointments and helping with translation.[8]The third letter is from the Community Cohesion Manager at Wrexham County Borough Council. It refers to his helping the Council organise Refugee Week in 2009, organising a community football tournament for young people, working closely with the Mosque when it opened, and working with the Mosque to provide visits for the wider community to tackle myths and rumours. There is help in consultation and development of the Council’s Community Cohesion Strategy, and the letter describes him as a “community champion in Wrexham”, recognised and respected by a wide and diverse range of communities and Public Sector organisations.[9]Fourthly, there is a character reference from one of his lecturers at Glyndyr University. It only stands out only because it is the one letter which does not speak of his role in the community.[10]Fifthly, a letter from a case worker at the Welsh Refugee Council. She speaks of his help as a volunteer for the Council, and of his assistance with interpreting and accompanying other refugees to appointments.[11]Sixthly, there is a letter from the Development Officer at the WRASSG. She speaks of him being a “real driving force ...” in the affairs of the local refugee forum, his involvement with Refugee week in 2010 and 2011, and his success in dealing with the more difficult clients. She describes him as an “integral part of the team at WRASSG”, and a “valued and valuable member of the community in Wrexham...”.[12]Seventhly, a letter from the chairman of the local Mosque,. He says that the Claimant is a trusted and highly valued member of “our community”. He refers to his work with the Council when the Mosque was being established, and that he continues to be a point of contact with the Council. He is working to set up Arabic and Quran classes.[13]Eighth, a letter from PC Roberts, the local police diversity officer. He says this:
“Within my role as Diversity Officer, there have been occasions when I have needed assistance and guidance whilst helping the Muslim Community. Mr Zermani has always assisted me with such guidance without question. Should he be unable to help then he has been able to refer me to others who can”
. The letter refers to their work encouraging the reporting of hate crime, and supporting victims of those crimes. The officer says that he “... is one of the persons for whom I feel trust in doing such a task”. Again there is reference to his involvement in community events.[14]Finally, there are two letters from the Reverend JG Aylward, the Chair of WRASSG. He invited the Claimant to become a trustee of the organisation. He says the Claimant’s understanding of the issues is “second to none”, that he has been “of immense assistance to our Board of Trustees ... “ and that “... his absence would have a great impact on our organisation”.[15]The original decision approached the application solely on the basis of the test as set out under paragraph 276ADE of the Rules and did not go on to consider the application outside the Rules. The Claimant does not fall within any of the provisions of the relevant rule. The letter records the Respondent’s conclusion that the Claimant’s presence in the UK is not conducive to the public good, and the application is refused. The letter is a brief one, although there is little more to say in relation to an application within the Rules.[16]The Claim The Claim Form was filed on 26 July 2013. In terms of the facts, it relies heavily on the letter the Claimant’s solicitor wrote with the application. As to the legal argument, there are two principal strands. The first is that a consideration of an application based on private life under the Rules alone may not be a sufficient Article 8 assessment. There is reference in particular to the decision of Sales J in R (on the application of Nagre) v SSHD [2013] EWHC 720 (Admin). The second strand deals with the relevance to the public interest of the proposed removal of someone who is of great value to the community. The principal case here is UE (Nigeria) v SSHD [2012] 1 WLR 127.[17]The Grounds begin at paragraph 23 of the Statement of Facts and Grounds and refer expressly to UE. The point is that when an applicant is of great value to the community, the weight to be given to the public interest in maintaining effective immigration controls is reduced. The Applicant’s case is that the Respondent failed to engage with that issue, or with any of the submissions advanced on his behalf.[18]Permission was refused on paper on 8 April 2014, but granted on the ground that there had been no decision outside the Rules by HHJ McKenna following an oral renewal hearing on 11 August 2014. Following the grant of permission, the Respondent reconsidered the decision. That was not part of a settlement process, or the result of any request or further representations from the Claimant. The decision letter is dated 6 October 2014 and begins with this paragraph: Following your client being granted permission to apply for judicial review .... further consideration has been given to your client’s case. This is supplementary to our decision letters of 21 January 2011, 19 December 2012 and 27 April 2013. The Claimant’s position is that this represents an acceptance that the decision of December 2012 was flawed, and that the Court should quash it.[19]The Respondent’s position is this. Firstly, whilst it is accepted that there is an error of law in the December 2012 letter because the application was not considered outside the Rules, the error is not a material error of law. The argument is that the Claimant’s application was so lacking in merit that it was inevitable that even if it had been considered outside the Rules, the decision would have been the same; see Michael Fordham QC in R (on the application of Ganesabalan) v SSHD [2014] EWHC 2712 (Admin) at [9]; and Beatson LJ in Haleemudeen v SSHD [2014] EWCA Civ 558 at [61]. Consequently the claim should be dismissed. Secondly, if the error was material, the claim has been rendered academic by the supplementary decision letter which properly considers the application outside the Rules.[20]In his skeleton argument, Mr Jacobs argues that this supplementary decision is itself flawed, and does not render the claim academic. He submits that it fails to properly consider the application outside the Rules and to make a fact sensitive Article 8 assessment; or that the letter fails to demonstrate that she has done so.[21]The Claimant has not sought to amend the grounds and is now out of time to begin fresh proceedings to challenge the 6 October 2014 decision. Mr Najib’s position on paper was that without permission to amend the grounds it was not open to the Claimant to raise this new challenge. The issue rather fell away during the hearing. It seemed to me that the question was whether the supplementary letter rendered the claim academic. That was an argument the Respondent made, and the “challenge” to the supplementary decision arose in response to that. I take the view that the Claimant does not need permission to amend his grounds, but if he does then I would readily grant it. The Claimant’s argument was laid out in Mr Jacobs’s skeleton argument of 5 March 2015, and the parties were in a position to argue the points fully at the hearing before me. It would be unjust to shut out the Claimant on the point.[22]The case then reduces to two issues:(1) Was the Claimant’s application outside the Rules so hopeless that the decision would inevitably have been the same?(2) If not, does the supplementary decision letter render the claim academic?[23]UE (Nigeria) The issue in UE (Nigeria) was whether it was relevant for a decision maker carrying out the balancing exercise required to determine whether removal was proportionate in an article 8 case to have regard to the fact that the person in question was of value to the community, a value which the community would be deprived of if he were removed. The leading judgment in the Court of Appeal is from Sir David Keene. The first passage of particular relevance to this case is at paragraphs at [18]-[19] of his judgment.18. The decision of this court in JO (Uganda) does indeed make the point that the matters of public interest to be taken into account should be ones which relate to the legitimate aim being pursued in immigration cases, namely that of maintaining effective immigration control. But that in itself raises the question of what matters are relevant to that aim. The House of Lords decisions to which I have just referred indicate that one should not seek to answer that question in too narrow or restrictive a fashion. For example, if the immigrant has a history of fathering illegitimate children in this country who then become a burden on the public purse, that would seem to me to be a consideration relevant to the need for effective immigration control. It is something which enhances the importance of immigration control being effectively exercised in that individual case. But by the same token a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less.19. None of this means that the individual is being rewarded for good behaviour. It goes instead to the strength of the public interest in his removal and how much weight should be attached to the need to maintain effective immigration control in his particular case.[24]As a matter of principle Sir David Keene could see no reason why the fact that the community in this country or part of it would lose something of value were a claimant to be removed should be seen as irrelevant to an assessment of the extent of the public interest in removal. At paragraphs [35]-36] he says this:35. For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under article 8 and as a matter of principle I do so find. That is where this aspect comes in to the proportionality exercise…36. I would, however, before concluding, emphasise that, while this factor of public value can be relevant in the way which I have described, I would expect it to make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge of Harwich in Ex p Bakhtaur Singh [1986] 1 WLR 910. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that. It will be unusual for the loss of benefit to the community to tip the scales in an applicant's favour, but of course all will depend upon the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.[25]He indicated that he would be surprised if the issues raised in UE would ultimately make a difference on proportionality, but they might, and so the appeal was allowed and the case remitted. Richards LJ also gave a judgment in UE in which there might have been a “difference of emphasis” (see the concurring judgment of Ward LJ). The relevant passage is at [41]-43]:[41]... I consider that contribution to the community is not a freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim.42. It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination.43. As to the other side of the balance, in MA (Afghanistan) [2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." ... Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether.[26]The reference to ex p Bakhtaur Singh in Sir David Keene’s judgment is of relevance. It is a decision on the effect of a previous immigration regime, but it assists in two respects. Firstly it gives an indication of the contribution which might be relevant to a decision. The passage referred to by Sir David Keene is at [1986] 1 WLR 910 @ 917 C-E: In the argument before Your Lordships it was not disputed that the effect of deporting a particular individual on third parties other than his family and persons intimately connected with him may well be a factor which is relevant to the discretionary decision whether he should be deported or not. A number of examples will make this clear. 1. A person liable to deportation has been carrying on business in partnership. His deportation will ruin the partnership business. 2. A person liable to deportation is an essential and irreplaceable worker for a company engaged in a successful export business. His deportation will seriously impair the business. 3. A person liable to deportation is a social worker upon whom a particular local community has come to depend. His deportation will deprive the local community of his services which will be difficult to replace. 4. A person liable to deportation is an indispensable member of a team engaged in scientific research of public importance. His deportation will put at risk the benefit which the public would enjoy if the research were successful. I have tried to choose the examples so as to illustrate the possibility of the third party interest in avoiding deportation extending to a progressively widening circle and ultimately to the public as a whole.[27]Mr Jacobs draws my attention to the third example, and likens the Claimant’s position to the loss of someone doing social work. Mr Najib emphasises two matters. Firstly that the examples Lord Bridge gives are of people who are irreplaceable and whose loss will have serious consequences – the ruin of a business or the loss of the results of some scientific research. Secondly that they were lawfully present in the country. He referred me to a passage later in Lord Bridge’s speech at 920 D-E: The question what weight is to be attributed to third party interests of the kind I have been discussing which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend upon all the other relevant circumstances in the context of which the decision falls to be made. It may well be difficult to attach any considerable weight to the third party interest affected if the person liable to deportation has established his reputation and proved the value of his services from which the third party interest arises during a period when his presence in this country was in contravention of the immigration laws. However, that is not for Your Lordships to decide.[28]Whilst those words may be obiter and refer to the immigration regime in the 1980s, they represent an approach which the courts and the legislature have continued to take. They are reflected in the provisions of section 117B(4)(5) of the Nationality, Immigration and Asylum Act 2002 as amended by section 9 of the Immigration Act 2014 which came into force on 28 July 2014, after the decision in this case. Little weight is to be given to a private life established when a person is in the United Kingdom unlawfully or at a time when his immigration status is precarious.[29]Mr Najib’s researches produced three cases decided by the Outer House in Scotland (where the law on this issue is the same). In SM v SSHD [2012] CSOH 172, Lord Stewart proceeded on the basis that UE was good law. The applicant was a recording and stage sound technician who relied upon the accumulation of a private life in Edinburgh, having entered the country in 2003 on a 6 month visa, and stayed unlawfully since then. His application was supported by letters from friends and 14 “letters of support” which described his contribution to the Edinburgh music scene in highly favourable terms; see paragraph [12] of the judgment.[30]At paragraph [17] Lord Stewart concludes in this way: As to the question of an appeal to an immigration judge – and this is about taking account of all relevant factors – there is in my view no prospect of success. Worthy and valuable to the community though the petitioner’s enforced voluntary work may have been during his precarious and unlawful residence, it counts for nothing in the situation where the petitioner now seeks to remain lawfully with the opportunity to put his skills to remunerative use. There is no suggestion, and I do not think that I am bound to assume that the petitioner would be practically irreplaceable if he were to charge for his services. The examples given by Lord Bridge of Harwich in Bakhtaur Singh were about individuals who had been practically indispensible in lawful business or lawful employment and who would continue to be indispensible if their various lawful occupations if not deported. Lord Bridge doubted that “any considerable weight” could be attached to services provided during a period of unlawful residence. I conclude that though the decision maker has failed to take account of something which appears from the decision in UE to be a relevant, though not a weighty consideration, there is no chance that factoring in community benefit on the basis of past unlawful residence would change the outcome in the circumstances of this case. He decided that whilst there was an error of law, it was not material and there was no need for a redetermination.[31]In David Ndagijimana v SSHD [2014] CSOH 142 Lord Doherty dealt with a similar application by a sheltered housing manager who was an overstayer. He had a “small sheaf” of letters of support and commendation. He was a conscientious and hard working man, a valued employee and ready to contribute to the community. The approach in UE was adopted, but there was no suggestion that he would be difficult to replace, and his personal qualities were not matters deserving of significant weight in the assessment of proportionality.[32]The third case is MK v SSHD [2015] CSOH 13, a decision of Lord Kinclaven. The petitioner was an overstayer who had a “proactive involvement in the Labour Party and the “Better Together” campaign””. He had avoided immigration control between 2004 and 2009 and claimed some £30,000 in benefits and student loans to which he was not entitled. He was involved in charitable fund raising and representing others as their advocate in litigation. In reaching her decision the Respondent had had regard to the relevant material and argued that she had reached a view she was entitled to reach. (Perhaps unsurprisingly) the decision was that she had not misdirected herself.[33]Whilst these authorities do not develop the law, it was useful to consider them in argument. They confirm the nature of the approach, and the first two provide further examples of factual situations where the error of law was not material. So far as I can gather from the reports of the facts of those cases, there is more to say for the Claimant in this case in terms of his value to the community. In particular there is material from which it might be concluded that this Claimant is “practically irreplaceable”.[34]The positive case the Claimant puts forward as to private life has to be seen in the context of his past misconduct and his immigration status since 2006. It all goes into the balance. Had there been a full consideration of the Article 8 material (good and bad) was it inevitable that the decision would have been the same?[35]There are two matters which lead me to conclude that it might not have been. The first is that the letters of support speak not only of his value to the community, but some of them also refer to how difficult it would be to replace him. The second is that the letters of support come from people whose views (potentially at least) must count for something. These are people with responsibilities in the community who, on the face of it, might be expected to write these sorts of letters only when they are moved to do so by their genuine concerns. These are not friends or relations or even employers, these are people who have seen this man do something quite out of the ordinary. It may very well be that a decision maker would have reached the same conclusion had this case been considered outside the Rules, but on the facts of this case I cannot say that it would be inevitable.[36]The Supplementary Decision Letter As the opening paragraph makes plain, the letter is supplementary to the first decision. But it is a far more detailed consideration. It begins by setting out the Claimant’s immigration history. At paragraph 17 there is the first mention of the application: You state that your client’s removal from the United Kingdom would have an impact that would be wholly disproportionate, unfair and unjustifiable. In your letter dated 14 November 2011 you state that your client has established a private life in the UK and you provide the following in support of your submissions:• Various academic certificates• Letters from Welsh Refugee council• Varying letters of support[37]Mr Jacobs submits that list indicates a lack of proper consideration. But it is not incumbent on the Respondent to set out a list of each of every piece of evidence considered when making a decision. The above reference is sufficient. The real question is whether the decision letter demonstrates that the relevant issues and material have been considered.[38]From paragraph 18 onwards the letter gives further consideration to the Claimant’s application. That is done firstly by reference to the requirements of paragraph 276ADE. There is, as the Claimant has always accepted, no valid application under the Rules. Inevitably the Respondent concludes that the Claimant does not fall within any of the provisions of Rule 276ADE.[39]However in the course of that consideration a number of relevant matters are referred to. At paragraph 21 the Respondent accepts that “ ... your client will have enjoyed a level of private life due to the time he has remained in the United Kingdom” At paragraph 24 there is a quote from the decision of the IJ on 11 August 2010 to the effect that he had fabricated his account in support of his asylum claim. At paragraph 25 there is a summary of the factors which weigh against his application including the fact that 34 of his 42 years have been spent in Algeria, his parents live there, he overstayed, his asylum claim was only made when he was in prison for the passport offence, his asylum claim was not accepted and there are no significant obstacles to his integration into Algeria.[40]At paragraph 26 the letter says this: You have asserted that your client has undertaken voluntary work in the community and has sought to further his education while residing unlawfully in the UK. It is accepted that, on the evidence provided, that he has developed a private life. However it is not accepted that the existence of your client’s private life in the United Kingdom is a sufficiently compelling reason for making him an exception to the normal practice of removing those who have remained in the United Kingdom unlawfully. In order to protect the wider interests and rights of the public and the economic well being of the country, it is vital to maintain effective immigration control. In pursuit of that aim and having weighed up your client’s interests against it, it is believed that any interference with your client’s private life would be a legitimate, necessary and proportionate response and in accordance with the law.[41]At paragraph 27 the application within the Rules is refused. The letter goes on to consider the guidance given in relation to applications outside the Rules. There is reference to the judgement of Sales J in Nagre at [14]. At paragraph 29 the decision maker says this: Very careful consideration has been given to whether there are individual circumstances in your client’s case which, consistent with the right to respect for private life contained in Article 8 of the European Convention on Human Rights, are genuinely exceptional enough to warrant an exercise of discretion outside the Immigration Rules. In this case there is nothing remotely exceptional about your client’s circumstances....[42]The letter refers to a number of other factors. Perhaps the most relevant for the purposes of this consideration is the last sentence of paragraph 30. Although your client may have friends in the UK he can reasonably maintain contact with them from Algeria and also continue with his community/voluntary work in Algeria. The ability to maintain contact with his friends from Algeria is referred to again at paragraph 33, and at paragraph 35 the decision maker concludes that: For these reasons it is considered your client’s circumstances are not genuinely exceptional and his application is not distinguishable from those private life applications which would normally fall to be refused under the Immigration Rules.[43]Discussion The approach in this letter and in particular to “exceptional circumstances” reflects the guidance issued by the Respondent to her officials. At paragraph 49 of his Judgment in Nagre, Sales J says this: Finally, I should mention that I do have some concern about the use of the label “exceptional cases”, in the Secretary of State’s guidance, to describe the area in which the Secretary of State’s residual discretion operates. It is not wrong, as such, but there is some risk that busy, hard-pressed officials who refer only to the label might not clearly keep in mind the detail of the policy, and the particular nuance that the policy gives to he notion of exceptional cases, in identifying them with cases of disproportionality under Article 8. Officials should take care to avoid a “tick box” approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.[44]Mr Jacobs highlights the lack of reference in the supplementary decision to the material in the supporting letters, and the failure to deal with the issue of the Claimant’s value to the community. Mr Najib submits that the treatment in paragraph 26 is quite sufficient, and is to be seen in the context of the fact that it will be rare for the UE argument to make any real difference. This was a man who acquired his private life whilst in the country unlawfully, and who has abused the immigration system. There truly was nothing exceptional about his application which would justify the grant of leave.[45]I read the supplementary letter as a whole. The decision outside the Rules does not call for the decision maker to go through all the issues again and repeat the process undertaken under the Rules. Underhill LJ says this in Singh v SSHD[2015] EWCA Civ 74 @ [64]: ... there is nothing in Aikens LJ’s comment [in MM Lebanon] which casts doubt on Sales J’s basic point that there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules… ..... 66. … Sales J’s point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham’s point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. I agree with both points. ... The statement that the decision-maker “must be in a position to demonstrate” that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker’s view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so…[46]Mr Jacobs’ central point is that the supplementary decision letter does not deal with the Claimant’s value to the community, and that is a failure to consider a relevant matter and is sufficient to warrant quashing the decision. He recognises that it may be rare for considerations of community value and the like to lead to a grant of leave, but submits that there should at least be an assessment which includes a consideration of that matter, for it goes to reduce the weight which would otherwise be given to the public interest in maintaining immigration control.[47]I agree with Mr Jacobs. There is reference in the supplementary decision letter to the letters of support, and to the Claimant undertaking “voluntary work in the community”. But there is no reference at all to the value of that work to the community or to how difficult it would be to replace the Claimant. The issue of value to the community is a major part of the application (which was always “outside the Rules”), and lies at the heart of the grounds. Given that the supplementary letter was written after the grounds were filed and in response to the order for permission, it is surprising that there is no reference to this issue.[48]There is support for Mr Jacobs’ submissions in the way in which the supplementary decision letter does deal with the material relied upon in the application. It recognises that friendships may have been made and voluntary work undertaken, and goes on to conclude that those friendships can be maintained and the voluntary work continued in Algeria. There is nothing wrong with that so far as it goes, but it is the value of the friendships and voluntary work to the Claimant which appears to be in the mind of the decision maker, and not the value of the Claimant to the community. The letter refers to a number of other relevant considerations in some detail (the fabricated asylum claim for example) and it is hard to resist the conclusion that the absence of reference to the UE considerations is a reflection of the fact that the decision maker has not considered them.[49]In that context, the decision that there is “nothing remotely exceptional about your client’s circumstances ...” seems to ignore the nature and content of the letters of support. They speak of something quite out of the ordinary. It is not for me to substitute my views for those of the decision maker, but to deal with the application in this way tends to confirm my conclusion that the decision maker has not properly considered all the relevant material.[50]The decision is to be quashed on the grounds that it has not taken into account all the relevant factors. Mr Jacobs asked me to order that upon reconsidering the decision the Respondent should be required to take account of the current position. That may be sensible, for it is 4 years since the application was made. But I cannot and do not fetter the Respondent’s discretion in dealing with this application.[51]I will make an order in the terms of the draft minute of order agreed by the parties.

Cited in 1 later judgment