Should the Home Office read all of the supporting evidence sent in with an application?

The High Court provided a predictable answer in the case of R (Gayle) v SSHD [2017] EWHC 3385 (Admin), which considered the tragic personal circumstances of the claimant, Marie Gayle, and whether the decision to refuse to grant her indefinite leave to remain outside the rules was lawfully reached.

The sad story of Marie Gayle

Both of Ms Gayle’s sons are dead. One passed away whilst living overseas. The other, Gary Scott, was murdered in 2016 aged 17.

Even before the death of her second son, Ms Gayle was plagued with mental health issues, and had suffered abuse at the hands of partners in both her native Jamaica and the UK.

She had arrived with Gary in August 2000 on a visit visa but had subsequently overstayed. Applying to regularise her stay in 2011, she was granted 30 months’ leave to remain inside the rules on the basis of her relationship with her son. Following Gary’s murder, the basis of her right to stay in the UK fell away.

One of the main drivers of Ms Gayle‘s ongoing mental health issues, as found in three separate and uncontested medical reports, was her perceived (and actual) lack of secure immigration status which was having a “significant and deleterious effect on her treatment and possible recovery” (paragraph 4). The claimant, it was found

has a severe, complex form of PTSD and chronic Major Depressive Disorder of a severe form.

Under section 3(b) Immigration Act 1971, the Secretary of State has a discretion to grant indefinite leave to remain to whomever she chooses, whether or not the person meets the relevant Immigration Rules.

The circumstances in which the Secretary of State may exercise this discretion are set out in Appendix FM policy guidance and in the Immigration Directorate Instructions. Long story short: where the requirements of the Immigration Rules are not met, ILR should not be granted unless there exist “particularly exceptional or compelling reasons” to grant it. Further:

in cases not involving children there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months’ leave to remain.

The Secretary of State did grant Ms Gayle discretionary leave outside the Immigration Rules, in November 2016, but only the standard 30 months. She rejected Ms Gayle’s claim that her case was particularly exceptional or compelling such that a grant of ILR would be appropriate.

Challenge to the grant of leave

This decision to grant limited leave to remain – rather than Indefinite Leave to Remain – was challenged by Ms Gayle. She relied upon the medical evidence and psychiatric reports submitted with the original application to argue that the “exceptional and compelling” circumstances test had been met.

Internal Home Office notes indicated that, in fact, the original decision-maker was on the verge of refusing the application altogether before checking with a supervisor (presumably an individual with a higher reading age) and compromised on a further grant of limited leave outside the rules for a limited time.

Permission for judicial review was granted on the basis that the decision-maker did not appear to have properly considered the medical evidence, failing to mention (at all) one of the three medical reports.

Please read carefully

Wall J, giving judgment in the High Court, found that the Secretary of State

failed properly to consider the evidence presented… [had] not accurately summarised the significant factors set out in the reports and has not fully considered the conclusions of the medical expert witnesses. She has considered how an ordinary individual might react to being placed into the situation in which the Claimant finds herself and not how the Claimant actually reacted and how that will affect her into the future. The decision making process is flawed to the extent that the decision should not stand.

Wall J also found that the decision notice contained several irrelevant considerations and illogical findings. For example, holding against the claimant the fact that she was reluctant to engage with treatment, when one of the main reasons for this was her perceived lack of secure immigration status.

The veiled threat that appears to have been made by counsel for the Secretary of State was that the claim should be dismissed in any event because the Home Office would probably come to the same decision again, even if it had properly considered the medical reports.

Wall J dispatched this argument to the boundary with the contempt it deserved, noting that

It will be a matter for the [Home Office] in due course to decide whether those factors amount to “particularly exceptional or compelling reasons”. In making that decision [caseworkers] must look at the medical evidence fully and fairly.

Let’s hope that they do.