Tribunal decisions

The decision

Case No: JR-2024-LON-001902
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

3 June 2025
Before:

UPPER TRIBUNAL JUDGE BLUNDELL

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Between:

THE KING
on the application of
AXS
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Victoria Laughton
(instructed by Islington Law Centre), for the applicant

Michael Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 14 May 2025

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J U D G M E N T

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Judge Blundell:

1. The hearing which took place before me on 14 May 2025 was a case management hearing but it involved the consideration of a critically important point which, if resolved in favour of the respondent, was to bring these proceedings to an end. Given the importance of the issue, and given the submission of authorities rather late in the day, I took the unusual step of reserving judgment on the critical issue. For the reasons which follow, I have decided that the point should be resolved in favour of the respondent, and that there is no need to make any directions for the future conduct of the case.

Background

2. It is only necessary to outline the facts for the purposes of this judgment.

3. The applicant is a Jamaican national who came to the United Kingdom in 2002. In 2003, she was sentenced to six years imprisonment for supplying drugs of Class A. Deportation proceedings began, and the applicant claimed asylum. Her claim was refused but her appeal was allowed on Article 3 ECHR grounds in May 2008, the First-tier Tribunal finding that she would be at risk of ill-treatment in Jamaica on account of her sexual orientation.

4. The applicant was granted six months’ limited leave as a result of the Tribunal’s decision. She was granted another six months in 2010. On application, a period of three years’ limited leave was granted in 2012. The applicant’s son’s appeal against a refusal of entry clearance was allowed in 2015, with the judge observing that the applicant was likely to remain in the UK for the rest of her life.

5. A further application in May 2015 resulted in further limited leave which was valid from March 2016 to September 2018. More limited leave was granted (on application) in November 2019, valid until May 2022.

6. The applicant made a fee waiver claim in 2022. That was accepted in July 2022 and she made an application for Indefinite Leave to Remain (“ILR”) shortly thereafter. Limited leave was granted on 22 August 2023, valid until 22 August 2026. The applicant was dissatisfied with limited leave. Having received a negative response to pre-action correspondence, she commenced judicial review proceedings in the Upper Tribunal under reference JR-2023-LON-002496. Those proceedings were resolved by consent, with the respondent agreeing to reconsider her decision.

7. On 17 April 2024, the respondent completed her reconsideration and decided once again that the applicant should receive limited leave, rather than ILR. Pre-action correspondence proved unfruitful, and the applicant issued these proceedings on 16 July 2024.

Judicial Review Proceedings

8. It was contended in the grounds for judicial review that the refusal of Indefinite Leave to Remain was vitiated by three errors:

(i) the decision was flawed on ‘traditional public law grounds’ because the respondent had failed to have regard to material matters;

(ii) the refusal of ILR was in breach of Article 8 ECHR; and

(iii) the refusal of ILR was in breach of Article 14 ECHR, read with Article 8, on account of the applicant’s disability.

9. The relief expressly sought in the grounds for judicial review was (i) an order quashing the refusal of ILR and/or a declaration that the refusal was unlawful; (ii) an order requiring the respondent to grant ILR or to make a fresh and lawful decision; and a declaration that the respondent’s decision was unlawful by reference to section 3 of the Human Rights Act 1998.

10. The respondent initially opposed the application for judicial review. Summary grounds of defence were filed on 7 August 2024. Permission was refused on the papers but granted on renewal by UTJ Frances. Judge Frances considered it arguable that the respondent had left a material matter out of account in refusing to grant ILR. The matter in question was the opinion of a Consultant Clinical Psychologist - Dr Rachel Thomas - that the repeated act of applying for further leave was retraumatising the applicant and damaging her mental health. Judge Frances also considered the second and third grounds to be arguable.

11. There is extensive medical evidence before me. It is not necessary to replicate the helpful and comprehensive summary at [23]-[30] of Ms Laughton’s grounds. In order to provide the context of Judge Frances’ order, however, I note that the applicant suffered sexual abuse including rape in Jamaica; she has previously been sectioned under the Mental Health Act; she has a learning disability (with an IQ of 61) and a formal diagnosis of paranoid schizophrenia; and that Dr Thomas was of the opinion that the applicant’s mental health was unlikely to improve, and in fact likely to deteriorate significantly, unless she was permitted to remain permanently in the UK.

Events Post-Permission

12. Settlement negotiations followed the grant of permission. The respondent proposed on 10 December 2024 that the decision to refuse ILR be withdrawn and reconsidered within four months (absent special circumstances); that the claim be withdrawn; and that the respondent would pay the applicant’s costs. That offer was rejected by the applicant’s solicitors, who stated that the only form of order which would be acceptable was one which stated in terms that the applicant would be granted ILR.

13. The respondent was unable to accede to those terms, and Detailed Grounds of Defence, settled by Mr Biggs, were filed on 15 January 2025. The respondent accepted that the refusal of ILR was vitiated by public law error as contended in the applicant’s first ground. The refusal of ILR had accordingly been withdrawn and would be reconsidered. In the circumstances, the first ground had become academic and it would be ‘premature and inappropriate’ to consider the second and third grounds, which were in any event contested. The respondent made it clear that she did not accept Dr Thomas’s opinion and that she would seek to cross-examine Dr Thomas and the applicant in the event that the case proceeded.

14. The applicant’s solicitors quite properly suggested that there should be a case management hearing (“CMH”) to consider various matters in advance of the substantive hearing. The respondent agreed with that proposal and also proposed that the tribunal should consider at the CMH whether, as she contended, the application for judicial review was premature and should be dismissed on that basis. In the event that that question was resolved against her, the respondent suggested that the Tribunal should consider various matters of case management (to which I need not refer).

15. It was on that basis that the case was listed for a CMH before me on 14 May 2025. At the outset of the hearing, I ensured that both parties were content for me to consider the respondent’s prematurity submission at this stage. I intimated that I intended to reserve the case to myself in the event that it was to proceed, and that I would not revisit at any substantive hearing any conclusion I had reached on the prematurity question. Mr Biggs confirmed that he was content with that approach. For her part, Ms Laughton confirmed that she was also content for me to resolve that question at the CMH, with the consequence that the proceedings would be brought to an end in the event that I found for the Secretary of State on the prematurity question.

16. Skeleton arguments had been filed by both parties in preparation for the CMH. The respondent’s skeleton was six days late. Ms Laughton confirmed that the lateness caused her no difficulty and that she had no objection to its admission, save as to any eventual consideration of costs. Mr Biggs apologised for the lateness of the document. In the circumstances, I admitted the respondent’s skeleton argument and proceeded to hear submissions in development of those arguments.

Submissions

17. Ms Laughton noted that the respondent did not contend that the claim had become academic; the submission was that it was premature. The authorities set out in Fordham’s Judicial Review Handbook, 7th Edition, as supplied by Mr Biggs, showed that the claim could be dismissed on that basis if it had been brought too soon and that the applicant should be required to ‘wait and see’. There were no cases which were quite on point. In some cases, it had been held that the absence of a decision was not fatal to the progression of the case. The necessary enquiry was a fact-sensitive one and there was no ‘one size fits all’ approach.

18. I asked Ms Laughton whether she continued to submit that Rowe v London Borough of Haringey [2022] EWCA Civ 1370; [2023] PTSR 579 was of assistance, given that it concerned a point of statutory construction which remained even after the withdrawal of the decision under challenge. She accepted that the case was not precisely on point but submitted that there remained at the heart of this case an Article 8 ECHR point on which the respondent would be assisted by the Upper Tribunal’s conclusions.

19. Ms Laughton submitted that it was relevant to recall that the applicant had made her application for ILR as long ago as 2 August 2022. The respondent had made two flawed decisions on the application and the applicant was still awaiting a lawful decision. The delay was ‘quite startling’ in her submission. The respondent submitted that the tribunal should not consider the Article 8 ECHR submissions but she had made no attempt to do so herself, despite having accepted some time ago that the latest decision was unlawful. This was not a case in which there had been no decision, and no proper target for the application for judicial review. There had been, but it had been withdrawn because it was unlawful. The ongoing delay was not a ’neutral’ one; the applicant was seriously unwell and the delay was exacerbating her mental health problems. Insofar as Mr Biggs was to submit that it was logical and necessary for the respondent to set out her stall on the Article 8 ECHR claim first, he had already done so in the Detailed Grounds of Defence, which must have been formulated on instructions. It would benefit the respondent to have the Upper Tribunal’s conclusions on matters including the medical evidence and it was difficult to see what might be added by the respondent.

20. In the event that the tribunal considered it necessary for the respondent to make a decision, there was no reason why it could not stay the proceedings until that had happened. That would not be to trespass into the territory of a ‘rolling review’, since the evidence would be the same. R (Turgut) v SSHD [2000] EWCA Civ 22; [2000] HRLR 337 continued to stand as authority on the propriety of adopting such a procedure, despite what had been said in Caroopen & Myrie v SSHD [2016] EWCA Civ 1307; [2017] 1 WLR 2339 and Dolan & Ors v Secretaries of State for Health and Social Care and Education [2020] EWCA Civ 1605; [2021] 1 WLR 2326. In favour of a stay were the factors to which Ms Laughton had previously referred, including the impact of further delay on the vulnerable applicant.

21. Mr Biggs submitted that it was undesirable for the tribunal to consider matters which were outstanding before the Secretary of State for decision. The case raised an important point about the role and function of the tribunal in such circumstances. The applicant misunderstood the law in submitting that the tribunal should be the ‘primary decision maker’ in claims for judicial review which involved human rights. The tribunal’s function remained one of review. Whilst it was true that it might resolve questions of fact in a judicial review which raised human rights questions, that did not change the nature of judicial review proceedings. The tribunal was obliged to take account of the decision made by the authorised decision maker, and there was no such decision in this case. The respondent’s lawyers could not adopt that role and could not stand in the shoes of the decision maker.

22. Mr Biggs then submitted that the respondent might take a decision to grant ILR in light of the Article 8 submissions or might, instead, take a decision in which she explained why she had decided not to do so with such cogency that no public law challenge could prosper. It was in both parties’ interests for those potential outcomes to be considered by the respondent before the tribunal considered the case, not least because any judicial consideration would be time-consuming and costly. None of Mr Laughton’s arguments should persuade the tribunal to take the unusual step of proceeding to consider the claim in these circumstances. The invitation to stay the proceedings was an invitation to embark on a rolling review, about which the authorities spoke with essentially one voice.

23. Ms Laughton made two short submissions in reply. Firstly, if it was essential for the Secretary of State to make a new decision, it was notable that she had not adhered to the indicative timetable which she proposed in the original consent order. Secondly, there would be no need for a future claim to be brought against a future decision if the tribunal proceeded to consider the Article 8 ECHR claim for itself. There was no difficulty with the tribunal considering that point for itself in light of the detailed submissions which had been made by the applicant and the respondent, in her detailed grounds.

24. I reserved judgment on the competing submissions, and indicated that I would receive written submissions on the remaining case management issues in the event that the claim was to continue.

Analysis

25. It is not in dispute between the parties that the ‘traditional’ public law challenges to the respondent’s decision to refuse ILR became academic at the point that that decision was withdrawn. The question before me is whether the applicant’s Article 8 and 14 ECHR arguments should be permitted to continue despite the withdrawal of that decision.

26. In my judgment, Mr Biggs is correct to submit that it would be premature to entertain those arguments when the respondent is yet to decide whether the applicant should be granted ILR. There is, as he submits, no proper reason to depart from the general rule that judicial review is concerned with challenges to actual decisions, and that judicial review will usually be premature when a decision is outstanding.

27. Ms Laughton does not, on proper analysis, seek to pursue the submission that the withdrawn decision(s) were in breach of the applicant’s rights under the ECHR. Such a submission would serve no useful purpose, since those decisions have been withdrawn and because the applicant does not seek damages for breach of her human rights. Instead, her submission is that the applicant’s human rights claim is such that the only permissible outcome in the application for ILR would be a grant of that status, and that the tribunal should therefore make a mandatory order or declaration to that effect. As she makes clear at [8] of her skeleton argument, she seeks a declaration that any future refusal of ILR “would be contrary to s6 of the Human Rights Act”. In my judgment, it would be highly undesirable for the tribunal to proceed down that route, for the following reasons.

28. Firstly, the absence of an extant decision from the Secretary of State is significant, and it is not appropriate, even in this human rights context, for the tribunal to act as the primary decision maker.

29. I simply do not know what the Secretary of State makes of the applicant’s Article 8 ECHR submissions. She might yet come to one of three conclusions. She might conclude that Article 8 ECHR is not even engaged by a refusal of ILR. She might find that Article 8 ECHR is engaged, but that the refusal is proportionate in light of countervailing considerations. Or she might accept what is said by the applicant in reliance on Dr Thomas’ opinion and decide that the impact of refusing ILR would have such a serious impact on her mental health that it cannot now be justified by any relevant countervailing considerations.

30. None of the authorities cited by the applicant are of any real assistance in the circumstances which obtain in this case, in which the original decision has been withdrawn and a new one is awaited. Seven decisions are cited at [5] of Ms Laughton’s skeleton argument in support of the submission that “it is for the Tribunal to determine for itself whether there has been a breach [of a claimant’s human rights]”. That submission is uncontroversial. It is supported by R (Nasseri) v SSHD [2009] 23; [2010] 1 AC 1 and R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100. What those authorities do not establish, however, is that a court or tribunal becomes the primary decision maker in such matters. As Mr Biggs submitted, the process is still one of judicial review, which is concerned with decisions which have been made, and not with decisions which are yet to be made.

31. In the event that the tribunal concluded that Article 8 was engaged by any future refusal of ILR, it would necessarily have to consider whether any such refusal would be proportionate. Ms Laughton’s submission that the tribunal may act as the primary decision maker in this context is wrong in principle. The role of the first instance court in assessing proportionality was recently examined by the Court of Appeal at [11]-[21] of Dalston Projects Ltd & Ors v Secretary of State for Transport [2024] EWCA Civ 172; [2024] 1 WLR 3327. Singh LJ (with whom the Master of the Rolls and Whipple LJ agreed) reviewed the authorities in some detail and I do not propose to cite from that review at length. The part of Singh LJ’s judgment which is particularly relevant in the present context is his analysis of something said by Lord Sales JSC in DPP v Ziegler & Ors [2021] UKSC; [2022] AC 408. At [19], having made reference to what was said by Lord Sales in that case, Singh LJ said this:

The only part of that passage which perhaps needs clarification is the reference to the court being "the primary decision-maker". When the passage is read as a whole it is clear that Lord Sales was not suggesting that the court is the primary decision-maker in the sense of the person who makes the underlying administrative (or legislative) decision which is under review. As Lord Bingham had said in Huang, at para 13, and Lord Sumption had said in Lord Carlile, at para 31, the court never has that role, because its function is still one of reviewing the decision of the public authority concerned. [emphasis added]

32. Ms Laughton submits that we need not wait for the respondent’s decision because her stance is made clear in Mr Biggs’s detailed grounds of defence, which must have been settled on instructions. I consider the final part of that submission to be correct, and necessarily so; I must proceed on the basis that Mr Biggs’ case before the tribunal is the case he has been instructed to pursue. As he noted, however, it would be erroneous to treat legal submissions from the Secretary of State’s lawyers in the same way as a decision from the official authorised to take that decision on her behalf.

33. The respondent’s case working departments are divided into specialist areas, the personnel of which are trained in reaching decisions in those areas. It is upon those departments, and not upon the Government Legal Department and the counsel they instruct, that the public law obligation to treat like cases alike must fall. However expert the Secretary of State’s lawyers might be, they are not the ones authorised under the Carltona principle to take decisions on immigration applications. As explained in the Dalston Projects case, the conclusions reached by such officials are necessarily to be taken into account by a court or tribunal when considering questions of proportionality. It is the respondent and her officials who have institutional competence in such matters: R (MBT) v SSHD [2019] UKUT 414; [2020] Imm AR 615.

34. This is not a case involving the straightforward application of a set of rules to an agreed set of facts. As I have recorded above, the facts remain very much in dispute, particularly as regards the impact of the denial of ILR on the applicant’s mental health. More important, however, is the fact that the applicant’s case is one in which the Secretary of State is invited to depart from the Immigration Rules (which mandate refusal on grounds of criminality) and to grant ILR in the exercise of her discretion. The applicant submits that the exercise of her discretion is to be informed, or compelled, by Article 8 ECHR considerations, but the fact remains that the ultimate decision is a discretionary one on which the respondent is yet to express a view. It is not for the tribunal to stand in the shoes of the respondent in such an area.

35. Secondly, this is not a case in which the tribunal is called upon to make a freestanding assessment on a point of law, such as Rowe v London Borough of Haringey, to which Ms Laughton referred at [6] of her skeleton argument. That was a housing case in which the decision under challenge was withdrawn before the appeal came before the Court of Appeal. It was submitted by the respondent borough that the proceedings had become academic in the circumstances but the court proceeded to determine the appeal nevertheless. Mr Laughton submits, in reliance on what was said by Stuart-Smith LJ at [15], that “withdrawal of a decision does not render a claim academic if it raises issues [which] could affect the outcome of any reassessment”. But the issue in question in that case was one of statutory construction, in respect of which there was only one correct answer and which the court was best equipped to decide. In a case such as the present, however, involving a number of proportionality considerations including discretionary consideration outside the Immigration Rules and the historical criminality of the applicant, the judgment is an evaluative one which must be for the respondent in the first instance.

36. Ms Laughton submits that the tribunal might nevertheless play a role comparable to that of the Court of Appeal in Rowe v Haringey when it comes to the engagement of Article 8 ECHR and the reliability of the opinions expressed by Dr Thomas. Those are questions which the Tribunal can and should consider, she submits, since they will inform the decision which is ultimately taken by the respondent. In my judgment, that is to put the cart before the horse. It is for the respondent to consider the facts first, and for the tribunal to review her assessment. This is not a Rowe v Haringey situation, in which the central question is one of law.

37. In making that submission, Mr Laughton also seeks to sub-divide the Article 8 assessment in a way which does not accord with the relief she seeks. The applicant does not seek a declaration that Article 8 ECHR is engaged by the refusal of ILR, or that the opinions expressed by Dr Thomas should be accepted in full; what she seeks is a declaration that a future refusal of ILR would be in breach of Article 8 ECHR. As I have endeavoured to explain, it is not for the tribunal to undertake that analysis without the benefit of a decision from the Secretary of State.

38. Thirdly, quite aside from the propriety of the tribunal considering matters which are outstanding before the Secretary of State, it is necessary to consider the time and expense which that would entail. If the Secretary of State is permitted to decide the application first, there will be no further cost to the taxpayer and no further expenditure of court time. If the case is permitted to go to trial on the issues set out above, there will be a lengthy hearing, potentially involving oral evidence from the applicant and Dr Thomas. I do not consider there to be any proper justification for adopting that unusual course when, as Mr Biggs notes, some or all of the outstanding matters may be accepted by the respondent when she comes to make her decision. In the event that they are not, the applicant will of course have access to judicial review to address any public law errors or any breach of her human rights which are said to exist in the new decision.

39. Ms Laughton sought to support her argument with extensive reference, orally and in writing, to the respondent’s delay in reaching a lawful decision in this case. She drew attention to the time that had passed since the application for ILR was made, and to the fact that the respondent failed to adhere to the indicative reconsideration timetable she proposed in the initial draft consent order. I accept that these delays are regrettable in a case involving a person with mental health problems. I agree with Mr Biggs, however, that any such delay cannot serve to render permissible a course which is otherwise anathema to the nature of the judicial review process. This is not a case in which the applicant challenges the delay to making a new decision and the point is simply irrelevant to the propriety of the course Ms Laughton invites me to adopt.

40. I do not accept that the tribunal should take the primary course urged by Ms Laughton and decide the ECHR arguments raised by grounds two and three despite the absence of a reconsidered decision from the respondent. To do so would be premature and undesirable for the reasons above.

41. As for Ms Laughton’s fallback position, I do not accept that it would be proper to stay the proceedings to await a new decision from the respondent. As Mr Biggs submits, that is straightforwardly to engage in a rolling review of the type deprecated in the authorities, including Caroopen and Dolan. Any new decision would have to be challenged by amended grounds for judicial review, and nothing is to be gained by amending this claim rather than bringing a new one.

42. The application for judicial review will therefore be dismissed for the reasons above. I invite counsel to agree a form of order reflecting that conclusion and dealing with any consequential matters.

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