‘Sub-optimal’ Supplementary Decision Letters Are Lawful

Caroopen & Myrie v Secretary of State for the Home Department [2016] EWCA Civ 1307 (20 December 2016)

The use of supplementary decision letters is widespread in immigration judicial review. They are used in various situations in order to cure legal errors vitiating poor quality original decisions. Four points stand out. First, they often give reasons, or fuller reasons, for the original decision in response to a criticism of its inadequate reasoning. Second, such letters may be effective not by retrospectively correcting the initial decision but by prospectively bridging the gap if it is vitiated with invalidity. Third, further evidential or other material put to the decision-maker might warrant reconsideration of the original decision regardless of its initial validity – for example, where a judicial review is pending and the claimant relies on previously unused material. A fourth situation arises where the decision-maker expressly admits that the original decision was defective but concurrently makes a fresh decision with the same result – strictly not “supplementary” the Turgut [2000] EWCA Civ 22 scenario occurs when the original decision is superseded, albeit for a different reason, and a need exists for the tribunal to decide whether it is permissible for the validity of the fresh decision to be determined in the context of ongoing proceedings. After excoriating these tactics, the Court of Appeal nonetheless found nothing inherently wrong with such letters.

Underhill LJ reached this conclusion despite lamenting that supplementary decision letters are “confused and confusing”. On principle, he held that irrespective of any supplementary decision, the original decision should be quashed by default if it was unlawful. The behaviour, bemoaned his Lordship, constitutes “thoroughly bad practice” with the unmistakable result that it is inconsistent with the overriding objective of the Civil Procedure Rules 1998. The present judgment concerned the conjoined appeals of Johanna Caroopen, a Mauritian, and Debbie Myrie, a Jamaican. Allowing the appeals in part, the court also ironically sympathised with the army of non-lawyer officials engaged in producing poor quality decision letters because “they are working under great pressure and having to apply a constantly shifting body of law, and lore, which is shamefully complicated and is confusing even to experts.”

Factual Background

Caroopen entered the UK as a visitor in 2004 with her husband Kersley and daughter Jenna. Their son was born in 2007. They remained lawfully as students until March 2009 and sought to extend their leave but their defectively made applications were rejected. Thereafter they remained unlawfully without leave but reapplied on the basis of private in 2012. Myrie also entered as a visitor in March 2009 but failed to return to Jamaica after her visa expired. Since then she has been an illegal overstayer but like Caroopen she also reapplied in 2012. Caroopen and Myrie both relied on article 8 of the ECHR and the grant of permission to apply for judicial review resulted in the content of the initial refusal letters being revised by way of supplementary letters.

Caroopen’s application was refused under paragraph 276ADE and Appendix FM, on exceptional circumstances and in connection to section 55 of the Borders, Citizenship and Immigration Act 2009. The supplementary decision letter was not sent to her and was instead annexed to the grounds of defence in the pending judicial review application which was of course thoroughly bad practice as the letter affected her future and was not a mere court exhibit. The Upper Tribunal dismissed the judicial review claim because it was not unreasonable or irrational to expect Jenna to be removed to Mauritius after having lived in the UK for eight years.

Relying on the fact that she was a “second mother” to her British nephews and niece – her elder sister, Clover, and Clover’s partner Vincent’s four children – Myrie’s article 8 based application also argued that she had a pre-existing bond with two of the children as they had spent time in Jamaica. Since Clover and Vincent were in full time employment, Myrie took care of the children.

The initial decisions were brief and were issued after dithering for a year in both cases. Specifically in the context of Caroopen’s refusal, the failure of addressing Jenna’s claim under paragraph 276ADE(iv) meant that the mistake needed to be corrected with a fresh decision. The “supplemental” decision letter, issued after judicial review proceedings were instituted, invited the reader to read it conjunctively with the initial refusal. It remade the decision by starting “from scratch”.

In Myrie’s refusal, the decision-maker rejected that she had lost ties to Mauritius or that her case entailed exceptional circumstances. The “supplemental” decision letter, produced after judicial review proceedings were instituted, invited the reader to read it conjunctively with the initial refusal but failed to specify why a second reasoning was necessary. Under the rubric of transitional arrangements, family life, private life and leave outside the rules the letter said leave on article 8 grounds was unwarranted.

Another (second) supplementary decision advanced yet more thoughts. It purported to grapple with article 8 case law, private life, section 55, exceptional circumstances and paragraph EX.1(a) of Appendix FM. Neither letter was sent to Myrie or her representatives. In the Upper Tribunal it was held that the decision was unlawful because it entirely failed to address the specifics of Myrie’s claim to have a family life. As a matter of discretion the original decision was not quashed because the supplementary letters addressed the matters with which it had failed to deal.

Unlike Caroopen, in judicial review proceedings Myrie raised a specific objection to the use of supplementary letters. Following the logic in Kerr [2014] UKUT 493 (IAC) and Hafeez [2014] EWHC 1342 (Admin), Judge Coker accepted the submission that they could not be used to cure the defects in the original decision. In doing so she rejected the submission that the letters merely elucidated and elaborated the original decision, so that all three letters could be regarded as part of a single decision. However, for reasons of “pragmatism” she found that they were potentially relevant to the issue of relief if the original decision was quashed. An alternative conclusion would result in unnecessarily repetitive proceedings that would result in inordinate delay, significantly higher costs to no avail and lack of certainty.

The Court of Appeal

The court shed light on the correct approach to take in an article 8 judicial review claim. The home office uses a “triage process” under which judicial review claims are assessed by a team of officials and lawyers. If permission is given they decide whether a supplementary letter would be appropriate. Despite finding that nothing is inherently wrong in using supplementary decision letters, Black, Beatson and Underhill LJJ did not think that they would always be the right course. Myrie’s appeal was allowed in part to the extent that Judge Coker should have quashed the original decision. Caroopen’s appeal was allowed and her case was remitted to the Upper Tribunal.

(i) Lord Justice Underhill

In relation to circumstances where a supplementary letter supplies fuller reasons addressing the inadequacies of the original decision, the decided authorities remained cautious about permitting a decision-maker to rectify defects in the original decision. Moreover, in the field of housing law, Ermakov [1995] EWCA Civ 42 confirmed that an initial unlawful decision by a public authority could not be cured by a substantially different subsequent decision. Although he did not agree with every aspect of the analysis in Nash [2001] EWHC (Admin) 538, Underhill LJ said that he endorsed the broad approach that caution is required where reasons are put forward after the institution of proceedings in cases where important human rights are at stake. Tribunal authorities such as AB [2015] UKUT 352 (IAC) and Hamasour [2015] UKUT 414 (IAC) confirmed that Nash was a “useful tool” and pointed to refusing to allow decision-makers to rely on reasons provided in supplementary decision letters.

Upholding the rationale in Kerr, where the reasoning in Ermakov had been rejected, as regards the second type of scenario or “fresh decision” cases such as Myrie’s, the court held that default position is that whereas a decision-maker had to remake the decision, that might be “pointless where a fresh decision has since been taken which the court or tribunal is satisfied is lawful.” After considering the third example, or “new material cases”, the court held at para 34 that the first three “categories are clear enough conceptually but they can often be blurred in practice.” Whether or not, and if so how, a supplementary letter had taken effect are questions for the tribunal to decide.

Judge Coker had considered Myrie’s original decision, held to be unlawful, without reference to the supplementary letter. Since the letter validly explained the refusal she was not entitled to relief and leave had lawfully been refused as a consequence of the supplementary reasoning. Therefore, Myrie’s appeal was allowed to the extent that the original decision ought to have been quashed. Notwithstanding that error, Judge Coker arrived at the correct decision that Myrie was not entitled to remain in the UK. The key question was whether a tribunal could legitimately adjudicate on a fresh decision’s lawfulness in proceedings brought to determine the lawfulness of a prior and different decision. The answer was that it could do so and Underhill LJ held that:

46. … I think I should say that in a fresh decision case the course taken in Kerr will be generally correct. If the original decision was unlawful the default position is that it should be quashed: that reflects the reality of what has occurred and is in accordance with principle. I do not rule out the possibility that in a particular case or class of case there may be a good reason for leaving the original decision in place but no such reason was identified in the cases before us.

The court considered the authorities of Turgut, Rathakrishnan [2011] EWHC 1406 (Admin) and Omar [2012] EWHC 3448 (Admin) and held that a further challenge by Myrie would not be viable and would be liable to being struck out on the ground of issue estoppel. Underhill LJ agreed with the argument that even though the use of subsequent letters to fix defects in original decisions was at best a “sub-optimal” practice, it was nevertheless acceptable to deploy such tactics because a pragmatic “real world” response was needed to minimise the risk of the original decision being held unlawful for defectiveness or to have been superseded by subsequent developments in the fluid world of immigration law. Keeping in mind the versatility of the discourse at hand, the court held:

61. In summary, I would reject the submission that there is anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge.

Caroopen’s case turned on the proportionality of removal and the issue was whether the Upper Tribunal had mistakenly used a Wednesbury approach as to refusal rather than examining whether her article 8 rights would be violated by not granting leave to remain. Where judicial review proceedings alleged breaches of ECHR rights it was not possible for the court to restrict itself to only examining the defects in the decision-making process. Rather, it had to decide whether the decision was right.

The approach in Rathakrishnan was subsequently applied in Bhatti [2013] EWHC 3093 (Admin), Aminzada [2015] EWHC 4024 (Admin) and Yousuf [2016] EWHC 663 (Admin). In A [2013] EWCA Civ 1706 and Tesfay [2016] EWCA Civ 415, the Court of Appeal referred to Rathakrishnan and deprecated “rolling judicial review”. The court was invited to accept the submission that the approach evinced in those cases was equally applicable in the present appeals. Ouseley J’s guidance in Rathakrishnan had been modified in Hussain [2016] EWCA Civ 1111 but nothing contradicted the criticisms made about rolling judicial review in A and in Tesfay.

Yet the present cases confronting the court were different in outlook. In Rathakrishnan the original decision had been withdrawn and a fresh decision was not made whereas in the present cases a further decision had been made. Consequently, the validity of both the supplementary decision and the original decision were under examination. Indeed, the original decision, which had not been withdrawn, was the target of the claim. The latter decision was also in issue, albeit collaterally, because of its relevance to relief. Accordingly, different considerations were in play. Underhill LJ remained sceptical about the argument that because a decision had been found to be legally flawed, the court should be slow to refuse relief on the basis that the same decision would inevitably have been made if it had been taken properly. The situation could be distinguished from such cases because in the present appeals the decision-maker had already made a fresh decision and the need for speculation as to outcome did not arise.

The court’s search for authority led it to consider a raft of cases including Nasseri [2009] UKHL 23, Lord Carlile & Ors [2014] UKSC 60 (see here) and Bank Mellat [2013] UKSC 38. In light of Quila [2011] UKSC 45, which broadens the dictum in Nasseri into a matter of ratio, and exacts a more intensive standard of review, it was held that although great weight needed to be attached to the executive’s policy assessments in immigration decisions, it was quite clear that matters of proportionality were equally determinable by a judge or tribunal as by home office decision-makers.

Decided after Lord Carlile, the recent authority of Kiarie [2015] EWCA Civ 1020 made it amply clear that while due respect needed to be paid to the first instance decision-maker’s balancing exercise, the court is obliged to form its own view regarding proportionality. Judge Southern fell into error in Caroopen’s case because of his failure to realise that there was a need for him to form an independent view on proportionality. In relation to Jenna, the guidance imparted by Elias LJ in MA (Pakistan) [2016] EWCA Civ 705 (see here) would need to be scrupulously applied.

Overall, there is a need for the decision-maker to specifically express how the fresh decision identifies its interaction and relationship with the original decision. Juxtaposing his own lead judgment with that of Beatson LJ’s brief analysis, Underhill LJ held at para 62 that “the vague formula about reading the one together with the other is not helpful”. It was clear that in numerous instances “unequivocally fresh” and thereby not “supplementary” decisions would be made in the residual fourth or Turgut category of cases.

(ii) Lord Justice Beatson

Addressing the tension between principle and pragmatism, Beatson LJ shed light on the “sub-optimal process” of trying to rely on supplementary letters and held that such behaviour produces “real disadvantages” for claimants and is only permissible “where it is absolutely clear that those disadvantages do not arise.” Resolving the tension requires considering protecting public law claimants’ legitimate interests who discover during the late stages of ongoing proceedings that the decision-maker has either garnished the original decision via a supplementary letter or made a new decision altogether.

Formalism did not underpin his Lordship’s rationale. Indeed, sometimes no prejudice is caused to the claimant. But in other cases prejudice does arise. Since supplementary letters are not served on claimants, the court sought to encourage transparency in public law decision-making. The court needs to exercise caution in making a binding determination about the validity of a decision in the context of proceedings to challenge an earlier decision. In an inter partes substantive hearing, court time would be consumed by examining a challenge to a decision for which permission was not granted. A corollary was to be found in a claimant with a poor case who arrives at the door of the court, with new grounds and desires that those new grounds should be heard without being filtered at the permission stage; producing the risk of consequent procedural complexity of the type confronting Schiemann LJ in Turgut (a memorable case concerning a young male Turkish Kurd draft evader).

Detecting “an element of wanting to have one’s cake and to eat it” in the submission canvassed by the executive, Beatson LJ went on to hold that:

95. In my judgment, however the Secretary of State has characterised the contents of the supplementary letter, the suspicion of retrospective rationalisation of a decision is not only relevant in “further reasons” cases. The policy reasons for caution expressed by Hutchinson LJ in Ermakov’s case do not become irrelevant just because the supplementary letter has been cast in the form of a “new” or “fresh” decision, for instance by a statement that it is a “new” or “fresh” decision. I consider that it would be wrong in such a case entirely to disregard the caution expressed by courts in relation to post-decision reasons. It must be clear that in substance an entirely new decision has in fact been taken and it is difficult to see that where the Secretary of State continues to rely on the original decision.

In addition to Underhill LJ’s analysis about supplementary decisions being thoroughly bad practice, Beatson LJ added that the letters are inconsistent with the overriding objective in Part 1 of the Civil Procedure Rules 1998. After detailing the procedural duties of the parties in Part 54, his Lordship also expressed unhappiness with the acknowledgments of service filed by the respondent home office in immigration judicial reviews and said that they were “not of much assistance” because of being “unparticularised”, “almost template” and “generic”. That was the position in Myrie’s case but in Caroopen’s case the grounds had been fully engaged with.

(iii) Lady Justice Black

Her Ladyship agreed that these appeals exposed the tension between principle and pragmatism. Concurring in the result, she remarked that procedural formalities are important as they steer proceedings by maintaining a “clear focus” and are therefore “one of the safeguards of fairness in litigation.”

Comment

While the court’s exposition of the authorities and discussion of the issues do deserve applause, Underhill LJ’s comments about decision-makers labouring “under great pressure” can only provide succour to the legions of imbeciles in the home office who have no sense of duty to anyone and are generally on the rampage. To sympathetically say that such individuals genuinely grapple with a constantly mutating body of shamefully complicated law is a one-sided analysis.

It is no secret that fees for applications are extremely high these days. For example, if a family of four people makes an article 8 claim they must pay a whopping £5,244. Accordingly, it is difficult to see why decision-makers cannot be trained sufficiently to write proper decisions in the first place. If this is not possible then in light of the ultra-chronic level of fees, perhaps making first instance decisions can instead be outsourced to specialist lawyers to increase quality and end the chaos discussed above.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appendix FM, Article 8, Children, Court of Appeal, ECHR, Immigration Rules, Jamaica, Judicial Review, Nigeria, Tribunals, Visitors and tagged , , , , , , . Bookmark the permalink.

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