20/12/2016
The Court of Appeal (Black LJ, Beatson LJ and Underhill LJ) allows the appeals in Caroopen and Myrie and gave authoritative guidance on the approach to "supplementary" refusal letters in Judicial Review proceedings and role of the reviewing court in Judicial Review claims concerning Rule 276ADE and Article 8. I appeared for the Appellant. The Court says that: "If the original decision is unlawful the default position is that it should be quashed" even if there is a valid "supplementary" refusal letter [47]. It is a "throughly bad practice" and "not consistent with the overriding objective" for the Home Secretary to just attach "supplementary" refusal letters with the Acknowledgement of Service [15/97]. "Constantly shifting body of law, and lore, is shamefully complicated and is confusing even to experts", and "applicants are entitled to be given decisions and reasons which are straightforward and comprehensible" [24]. The question of "reasonableness" under Rule 276ADE "must be treated as the vehicle for an assessment, in accordance with Article 8, of the proportionality of removal" [68]. "Where Convention rights are in issue a similar approach [to statutory appeals] is necessary in the Judicial Review context" [71]. "A caseworker in the Home Office is not better placed to make the necessary proportionality assessment than a specialist Judge", the Judicial Review court must make its own assessment of proportionality under Article 8 [81/82] and the conventional Wednesbury test should not be applied [85/86]. http://www.bailii.org/ew/cases/EWCA/Civ/2016/1307.html
There follow a number of sub-paragraphs setting out conditions which must be met by the applicant. I can ignore (i) and (ii), which are concerned with suitability. Sub-paragraphs (iii)-(vi) required, at the time relevant for our purposes, that the applicant: