Case No: C2/2014/4167
Neutral Citation Number: [2016] EWCA Civ 77
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
JUDGE FREEMAN
JR/141/2013
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10 February 2016
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE McCOMBE
and
LORD JUSTICE DAVID RICHARDS

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Between :

	THE QUEEN ON THE APPLICATION
OF JOSHUA TINASHE CHIRAIRO	Claimant/
Respondent	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant/Appellant	

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Zane Malik (instructed by Treasury Solicitor) for the Appellant
Michael Biggs (instructed by Bedford Solicitors) for the Respondent

Hearing date: 1 February 2016

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Judgment
Lord Justice David Richards: 

1.	On an application for judicial review, the Upper Tribunal (Immigration and Asylum Chamber) (Judge Freeman) quashed the decision of the Secretary of State dated 7 August 2013 to refuse the application of the respondent for leave to remain in the United Kingdom.    The Secretary of State appeals against that decision, with permission granted by Underhill LJ.   
2.	There are two grounds of appeal.   First, the UT erred in law in holding that the Secretary of State had side-stepped an earlier judicial decision by granting a short period of leave and then disregarding it, this being said by the UT to amount to “a clear disregard of the statutory appellate procedure”.  Secondly, the UT erred in law in holding that the Secretary of State had not explained why a distinction had been made between the respondent and his sister, who had been given leave to remain, and that such failure made the refusal of the respondent’s application unlawful.    
3.	The facts necessary for the disposal of this appeal are as follows. 
4.	The respondent and the other members of his family relevant to his application are all citizens of Zimbabwe.    The respondent was born on 20 June 1987.   His sister was born on 12 January 1990.   
5.	In June 2001, the respondent’s father entered the United Kingdom as a visitor and was subsequently given leave to remain as a student until 31 October 2005.  In October 2001, his mother entered the United Kingdom with leave to enter and remain as her husband’s dependant.    In August 2004 his sister entered the United Kingdom with entry clearance as the dependant of her father and the respondent entered the United Kingdom on the same basis on 5 March 2005.   As dependants of his father, the respondent and his sister and mother were granted leave to remain until 31 October 2005.    
6.	In September 2005, the respondent’s father started a further, one-year course for a post-graduate certificate in education.   On 21 October 2005, he applied for further leave to remain as a student until July 2006 to enable him to complete this course.  At the same time the respondent, his mother and his sister applied for leave to remain until July 2006 as dependants of the father.    All applications were refused on 30 January 2006.    They all appealed and their appeals were allowed by Immigration Judge Del Fabbro sitting in the Asylum and Immigration Tribunal, as it then was, on 20 April 2006.     
7.	Judge Del Fabbro was satisfied that the respondent’s father was progressing satisfactorily in his new chosen course of study and that he met the relevant requirements for the grant of leave to remain as a student until July 2006, when his course would finish. 
8.	The father’s application for leave to remain included his wife and daughter as dependants.    As their leave to remain was conditional upon the father, as the sponsoring student, being granted leave to remain, their appeals were also allowed. 
9.	The position of the respondent was a little different, because he had not been included in his father’s application but in a separate application form which was sent to the Secretary of State with the application form for his father, mother and sister.   Technically, therefore, it required separate consideration.    Judge Del Fabbro summarised the legal position as regards someone in the respondent’s position in his Decision at [20]:   
“Children of students are allowed to remain in the UK so long as there is leave for the student to remain and they are dependants.   Children must be under the age of 18 when applying to enter the UK but if they turn 18 subsequently, provided they were admitted as the child of a student and they apply within time they may be granted leave to remain in the same capacity even if they are over 18.”
10.	Judge Del Fabbro allowed the appeal of the respondent, as he had been under the age of 18 when he applied to enter the UK and, although he had since turned 18, he remained a dependant of his father, a fact not contested by the Secretary of State.   At [13] Judge Del Fabbro said that the respondent:
“had turned 18 years of age by then but was nonetheless totally dependent on the Appellant.   He lived at home with the family and was attending College regularly.”
At [25] the judge observed:
“On the basis that his position, other than his age, is no different to the third appellant, a dependant child, I would allow his appeal too.”
11.	In response to that decision, the Secretary of State granted on 15 June 2006 further leave to remain to each of the four members of the family, valid to 7 November 2006.  It will be observed that this is a later expiry date than that for which the respondent and his family applied, namely July 2006 when the father’s course finished. 
12.	On 30 September 2006, the respondent’s father applied for further leave to remain as a work permit holder, and the respondent, his sister and his mother applied with him for further leave to remain as his dependants. On 10 November 2006, the father, mother and sister were granted further leave to remain for five years, but the respondent’s application was rejected as he was at that time over the age of 18. He made a further application for leave to remain on 24 November 2006, which was refused on 16 January 2008. The respondent did not leave the country nor did he appeal either of these decisions but he continued to reside in the UK without leave to do so. It is fair to note that he did not disappear from view but made further representations to the Secretary of State regarding his status and raised his circumstances with the Member of Parliament for the constituency in which he lived.  
13.	The respondent’s father and mother were granted indefinite leave to remain on 15 August 2011 and 6 January 2012 respectively.  On 9 January 2013, his sister, who was then aged just under 22 years, was granted discretionary leave to remain for 3 years.  She has since been granted indefinite leave to remain. 
14.	In May 2012 the respondent made a further application for discretionary leave to remain on the basis of his rights under article 8 of the ECHR and his particular circumstances. 
15.	The Secretary of State refused the application, with no right of appeal, on 7 August 2013.  The decision letter issued on that date stated that the respondent had claimed the relationship between himself and his parents as grounds to be permitted to stay in the United Kingdom but continued that the relationship between an adult and their parents was not recognised under Appendix FM to the Immigration Rules and therefore had not been considered as part of his application.  The letter continued that consideration had been given to his claim that his removal would breach his right to respect for private and family life under article 8 of the ECHR in that he enjoyed private life in the United Kingdom.  It had been determined that he did not satisfy any of the requirements of Rule 276 ADE of the Immigration Rules at the date of application, with reasons given for that conclusion.  It further stated that it had been decided that his application did not raise or contain any exceptional circumstances which might warrant consideration pursuant to article 8 of a grant of leave to remain outside the requirements of the Immigration Rules.   The letter noted that at the date of the application on 12 May 2012, the respondent did not have leave to remain in the United Kingdom.
16.	The present application for judicial review was issued on 22 October 2013, following a pre-action protocol letter.  The stated grounds were concerned only with the respondent’s own circumstances. On 24 July 2014 the UT (Judge Reeds) refused permission to apply for judicial review on the papers but, at a renewal hearing on 22 September 2014, Judge Jordan granted permission.  He did so because the Secretary of State’s decision “did not engage with what might be disparate decisions made in the cases of the other family members.”  While acknowledging that it may have been proper to treat the respondent differently, the Secretary of State’s “reasoning does not identify why such a differing result was justified”, leading to an arguable case that “the decision maker needed to do more than he did in the decision”.   
17.	On 7 November 2014, a week before the full hearing, the Secretary of State issued a supplemental decision letter.  It summarised briefly the various applications by the respondent and members of his family for leave to remain and the decisions taken on them. It noted that the respondent had not lodged an appeal against the refusal in January 2008 of his last application, and that the respondent had not attempted to regularise his status until 12 May 2012.   
18.	In view of the way in which the respondent’s application for judicial review was put, the supplemental letter concentrated on his claim under article 8 of the ECHR.   The core reasoning in the letter was as follows: 
“Your client was nearly 25 years old at the date of this application.  As shown on his notice of decision your client does not meet the requirements to be granted leave to remain on the basis of his family life or private life.  Furthermore, he has not provided any evidence to show that he had any dependency on his parents which can be considered as exceptional.   
Moreover, without evidence to show otherwise, it is considered that your client would have family in Zimbabwe because he and his sister lived there without his parents for four years prior to coming to the UK. 
Careful consideration has been given to the information provided on your client’s behalf.  Your client has not provided any evidence to show that the decision to refuse would result in unjustifiably harsh consequences for him or that the decision is not proportionate.  Therefore, the Secretary of State is not satisfied that the exercise of discretion is warranted in this case. 
For the reasons given above any interference with your client’s private and family life would be proportionate and within the permissible aims of Article 8(2) and pursuant to the maintenance of an effective immigration control.”
19.	The reasoning of the UT for its decision to quash the refusal of the respondent’s application is contained in paragraphs 8 to 11 of the Decision: 
“8.	The 10 November letter sets out some of the history of the Secretary of State’s dealings with the applicant and his family, as already outlined: it notes that the applicant did not appeal against the 2008 refusal, which is a valid point. However, while it mentions the 2006 grant of leave to remain to the applicant’s sister, and, by implication, draws the distinction between them, also valid at that point, that he was already over 18 (which she was not), it fails either to mention or explain the 2012 grant to her, at a time when she was already nearly 22. 
9.		Mr Malik asked me to infer that the reason why the applicant’s sister was given leave then, but he was not, is that she had been here with leave as their father’s dependant all along. While that is perfectly possible, the explanation is not so obvious that it can be assumed. Though the applicant had not had leave since November 2006, in April that year Judge del Fabbro had said the Secretary of State should give him some form of leave, as his father’s dependant, although he was by then over 18. That decision may have been questionable at best; but the Secretary of State chose not to appeal it, but to give him a short period of less than six months’ leave, in line with his father and mother and sister. 
10.	So far, so good; but when they were all granted further leave to remain later that year, the applicant was refused. Following that refusal, no further action was taken against him, and his fresh application was not considered till 2008, while the further representations made in response to that year’s decision were not considered till 2012. Meanwhile the applicant did not simply stay on, trying to remain under the Home Office radar, but pursued his case with them through his MP. As usual in those days, the Home Office showed what can most kindly be described as complete nonchalance towards the public interest in enforcing immigration decisions. Certainly the applicant and his then solicitors were themselves to blame for not appealing or otherwise challenging the 2006 refusal at the time; but he had won one appeal, and they may not unreasonably have thought that result should continue to tell in his favour. 
11.	In 2012, the applicant’s latest application drew the decisions made in favour of his family, and in particular his sister, who had again been given discretionary leave to remain, though she was by now over 18 too, to the attention of the Secretary of State. That resulted in the decision under challenge; but this did not explain, even in its final (10 November 2014) form why the distinction had been made between the applicant’s sister, who had been given leave to remain all along, and the applicant himself, who Judge del Fabbro had said should have it. This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side-step it by granting a short period of leave, and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure, and the decision must be set aside.”
20.	The grounds of appeal correctly identify what appear to be the two bases for the UT’s decision.   
21.	The first basis for the decision, that the Secretary of State had chosen, rather than following or appealing Judge Del Fabbro’s decision, to side step it by granting a short period of leave, and then disregarding it, is in my judgment unsustainable.  It is a serious finding to make against the Secretary of State and it is not justified by the evidence.
22.	The decision which was the subject of the appeal to Judge Del Fabbro was the refusal of the application by the respondent and his family for leave to remain until July 2006.  The decision that the respondent was at that time a dependant of his father was not appealed and has at all times been accepted by the Secretary of State. The Secretary of State was therefore in effect required to grant leave to remain to the respondent and his family so as to enable the respondent’s father to complete his course and to enable his father’s dependants to be with him while he did so.  In fact, the Secretary of State went further than was strictly necessary and granted leave to remain until November 2006.
23.	It is submitted for the respondent that, properly understood, the UT held that the Secretary of State had acted contrary to Judge Del Fabbro’s determination when refusing the respondent’s application made on 30 September 2006. Judge Del Fabbro had found that the respondent was a dependant of his father and it is said that this finding remained binding on the Secretary of State when the application for further leave to remain was made in September 2006, in the absence of evidence of a change in circumstances of which there was none.  In my judgment, the decision of Judge Del Fabbro is incapable of having any such effect. His finding that the respondent was a dependant of his father was made in circumstances where the respondent himself would continue to be a student and live at home with his parents until the completion of his father’s course in July 2006.  It involved no assessment of the position of the respondent after July 2006. 
24.	The other basis of the Decision was that the respondent and his sister appear to have been treated inconsistently, without any explanation being given for the grant of leave to remain to his sister and the refusal of leave to the respondent.
25.	It is not in doubt that a discretionary public law power must not be exercised in an arbitrary or partial way.    If two individuals in identical circumstances are knowingly treated differently, this may well involve an arbitrary exercise of power in the case of one of them and, without a rational explanation, is liable to be struck down as unlawful.   Moreover, the circumstances of the two individuals, though not identical, may be so similar as to call for a rational explanation for the different treatment to be given, if the unfavourable treatment given to one is to stand.    It would be unfair of the Secretary of State not to treat like cases alike in the sense of discriminating against someone upon inadequate grounds:   see R v Secretary of State for the Home Department, ex p Zeqiri [2002] UKHL 3;   [2002] INLR 291 at [56] per Lord Hoffmann.    Nonetheless, caution is required.    First, personal circumstances will usually differ to an extent which prevents two individuals from being treated as like cases.   Secondly, different decision-makers faced with substantially the same facts may on entirely rational grounds come to different conclusions:   see Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893.     
26.	The issue in this case is whether the circumstances of the respondent were sufficiently similar to those of his sister as to require the Secretary of State, when refusing leave to remain, to explain the difference in treatment between them.    It was expressly accepted on behalf of the respondent that the reasons provided by the Secretary of State for her decision, when read on their own and only by reference to the circumstances of the respondent, could not be challenged, whether under article 8 or on grounds of irrationality or for lack of adequate reasons.  The case turns on the fact that the respondent’s sister, but not the respondent, was granted leave to remain.  
27.	It is useful to recap on relevant dates and ages. The respondent’s sister first entered the United Kingdom in August 2004 when she was aged 14 years 8 months.  The respondent entered the United Kingdom in March 2005 when he was aged a little under 17 years 9 months.  In January 2006, when the decisions to refuse further leave to remain were made, which were subsequently successfully appealed, the respondent was aged 18 years 7 months and his sister was aged 16 years.  In November 2006, when decisions were made on the further applications for leave to remain which were refused in the case of the respondent and allowed in the case of his sister, the respondent was aged 19 years 5 months and his sister was aged 16 years 10 months. When the respondent’s further application for leave to remain, made in November 2006, was refused in January 2008, he was aged 20 years 7 months. There was no appeal against that decision. In January 2012, the respondent’s sister was granted discretionary leave to remain for 3 years at a time when she was aged 22 years. When the decision under review to refuse discretionary leave to remain to the respondent was made in August 2013, he was aged a little over 26 years.
28.	It is submitted on behalf of the respondent that the striking aspect of the facts in this case is that his sister was granted discretionary leave to remain in January 2012 when she was just under 22 years old, whereas the respondent’s application dated 30 September 2006 was refused on the ground that he was over 18.   His status as an over-stayer was the only potential factor distinguishing his circumstances from those of his sister in 2012.  It is submitted that this indicated that the decision-making may well have been inconsistent as between the respondent and his sister, and therefore called for a reasoned explanation which was not given by the Secretary of State.
29.	The Secretary of State points to the reasons given by her in her decision letter dated 9 November 2014, which noted that the application made in September 2006 was refused  on the grounds that the respondent was then over 18 and that he was nearly 25 years old at the date of the application made in May 2012.   The notice of decision had made clear that he did not meet the requirements to be granted leave to remain on the basis of his family life or private life and, furthermore, he had not provided any evidence to show that he had any dependency on his parents which can be considered as exceptional.   
30.	The Secretary of State submits that there were conspicuous differences between circumstances of the respondent and his sister at the time of each relevant decision.  By the time of the decision under review, the respondent was not only an adult but was over 26 years old (and had been nearly 25 years old when his application was made), he provided no evidence of dependency on his parents and he had resided in the United Kingdom without leave since November 2006. 
31.	In my judgment, the UT erred in law in concluding that there was sufficient similarity in the positions of the respondent and his sister to call for an explanation by the Secretary of State for their different treatment.   There were marked differences between them at the time of each decision, and critically in August 2013 when the decision under review was made.  I can readily understand that the respondent and his family are disappointed that, while his sister is permitted to remain in the United Kingdom, he is not.    But it requires more than being adult siblings and a desire to be in the same country as their parents to require the Secretary of State to make the same decision in respect of each of them or to address and give reasons for the difference in their treatment.   
32.	For the reasons given in this judgment, the appeal by the Secretary of State was allowed at the conclusion of the hearing.
Lord Justice McCombe
33.	I agree.
The Master of the Rolls
34.	I also agree.