The Court of Appeal has in effect endorsed the Home Office practice of issuing “supplementary” decision letters during judicial review litigation to try and make good defects in the original refusal. The case is Caroopen & Myrie v The Secretary of State for the Home Department  EWCA Civ 1307.
Underhill LJ concludes as follows:
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. They may be effective in any one of three ways identified above. Ms Anderson sensibly acknowledged in her oral submissions that their use was “sub-optimal”, but in the real world they will often prove the most pragmatic response to the risk that the original decision may be held to be defective or to have been superseded by subsequent developments. But I am not to be taken as saying that that will always be the right course. If in a particular case the reliance by the Secretary of State on a fresh decision incorporated in a supplementary letter will lead to serious problems it remains open to the tribunal to decline to consider it and to require it to be challenged in other proceedings.
The practice of issuing supplementary decision letters during judicial review proceedings is known to be widespread but the Home Office was unable to quantify how many such letters were issued or in what circumstances. It emerged that there is a “triage” process undertaken by Home Office officials and lawyers where an application for judicial review is granted permission. Part of that process includes consideration of whether to issue a supplementary decision letter.
Giving the leading judgment, Lord Justice Underhill identifies four types of supplementary decision:
- First, a supplementary letter may be sent in order to supply reasons, or fuller reasons, for the original decision in response to a criticism of the adequacy of the reasons given with that decision. The courts should approach attempts to rely on subsequently-provided reasons with caution, particularly so in the case of reasons put forward after the commencement of proceedings and where important human rights are concerned.
- Secondly, a supplementary letter may be effective not by retrospectively curing the original decision but by prospectively filling the gap which would arise if it should be held to be invalid. Where the original decision is found to be unlawful, the fact that there has been a subsequent decision may be relevant to the relief granted: the reasoning is that, whereas the default position is that the decision-maker will be required to re-take an invalid decision, that may be pointless where a fresh decision has since been taken which the court or tribunal is satisfied is lawful. See further below on the issue of remedy and costs.
- Thirdly, further material – whether in the form of evidence or arguments – may have been brought to the Secretary of State’s attention which requires her to reconsider her original decision, irrespective of whether it was valid when first made: the material may relate to subsequent developments or it may have been available from the start but simply not supplied. One example, though not the only one, is where in the papers lodged with the judicial review claim the claimant relies on material which was not deployed previously.
- A fourth type of decision is also discussed, where the Secretary of State explicitly acknowledges that her original decision was defective but simultaneously makes a fresh decision to the same effect. This is not “supplementary” as such but the tribunal has to decide whether to allow the validity of the fresh decision to be determined in the context of the existing proceedings.
Underhill LJ goes on to say that these situations might be conceptually distinct but in practice there may be considerable overlap. This is particularly so where the Secretary of State “hedges her bets” as Underhill LJ puts it, by adopting a… flexible position:
(a) that her original decision was lawful and properly reasoned; but
(b) that if it was inadequately reasoned the further reasons contained in the letter will cure that defect; but
(c) that if it cannot be so cured the letter constitutes a fresh decision such that the claimant is not entitled to any substantive relief.
Underhill LJ, with Beatson LJ having raised the point in a separate judgment, encourages the Secretary of State to make clear into which of the four categories a supplementary decision letter falls. Beatson LJ is particularly critical of the failure of the Secretary of State to serve the new decision letters when they were written, rather than several months later as had occurred. In a similar vein, Underhill LJ comments in a footnote on “a general sloppiness about the Home Office’s correspondence and submissions in both cases.”
Beatson LJ also suggests that the court or tribunal should refuse to adjudicate on the contents of a supplementary letter where, because of the time it was served, the claimant can legitimately assert that it is difficult for him or her to deal with it and that there is a risk of unfairness if the court does so. This might, for example, arise where a decision letter is served very close to the hearing date or where legal aid does not immediately extend to cover consideration of the new decision.
These are points on which astute claimant solicitors will seize; with clarity may well come early settlement and costs.
The guidance of Ouseley J in the case of Rathakrishnan is in effect deprecated, or at least confined to a fairly narrow set of circumstances (again: see also R (Hussain) v Secretary of State for the Home Department  EWCA Civ 1111). Ouseley J had warned against “rolling judicial review” where new decisions are made, new evidence submitted and the whole train of litigation moves on to a new station far distant from the original departure point.
On the question of remedy and costs, Underhill LJ analyses closely the two tribunal decisions in Myrie and Kerr. The latter is preferred. Where a supplementary decision is issued which is considered by the court to be lawful and is in effect permitted to remedy the defects in the original or to replace it, the court or tribunal should find the original decision unlawful but might decline to order that the decision is remade. Costs should be awarded to the claimant to a point shortly after the supplementary decision was issued.
This still leaves claimants with the unenviable “stick or twist” choice referred to in Tesfay. But at least it gives them the choice.
The problem with this approach, which is perhaps insoluble, is that one strongly suspects the Home Office does not genuinely reconsider a case and instead simply bolsters and reinforces a pre-judged outcome. This is particularly likely to occur during the course of hard fought litigation, in which positions are often entrenched rather than reconsidered. Sadly, given the culture at the Home Office and the construction of the Immigration Rules, it would probably also occur even outside the adversarial context of court.
Finally, the appeal against one of the two linked judicial review cases succceeded because the Upper Tribunal judge had fallen into the trap of applying a traditional review approach to the decision of the Secretary of State, which was a human rights decision and therefore required the judge to make the decision for himself. On the facts there was potential for the claim to succeed; it involved nine years of residence by a child from the age of 18 months and a positive contribution by the family to the community in the UK.