[2025] UKUT 00229 (IAC)

It is accepted by Ms Thelen that the respondent erred in failing to consider whether to grant the appellant leave to remain outside the Immigration Rules. A specific request had been made for a grant of leave outside the Immigration Rules in the letter which accompanied the application. In those circumstances, as Mr Malik submitted, the effect of R (Behary) v SSHD is quite clear. There is an obligation to consider such a grant when expressly asked to do so, and, if but briefly, deal with any material relied upon by an applicant in support: Burnett LJ (as he then was) at [39], with whom Hallett LJ and Sir Stephen Richards agreed.

Ms Thelen therefore invokes section 31(2A) of the Senior Courts Act 1981, which applies to judicial review proceedings before the Upper Tribunal as a result of s15(5A) of the Tribunals, Courts and Enforcement Act 2007. She submits that the applicant should be refused relief despite the respondent’s error because it is highly likely that the outcome for the applicant would not have been substantially different if that error had not occurred.

That submission was made rather belatedly, and counsel only made reference to two authorities on s31(2A) during their submissions. The first was the decision of Kate Grange KC in R (Cava Bien Ltd) v Milton Keynes Council [2021] EWHC 3003 (Admin). The second was the decision of Linden J in R (KTT) v SSHD [2021] EWHC 2722 (Admin) [2022] 1 WLR 1312. I was not referred to R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58, which was handed down 13 days before this hearing, and is now the leading authority on s31(2A).

I do not propose to set out the facts of Bradbury in any detail. What matters for present purposes is the guidance given by Lewis LJ (with whom Holgate and Nicola Davies LJJ agreed) on s31(2A). Jay J had refused relief on that basis and the Court of Appeal dismissed the appeal against his order, finding that the respondent had acted in breach of the Conservation of Habitats and Species Regulations 2017 but that it was highly likely that the grant of planning permission would not have been substantially different if the conduct complained of had not occurred.

At [73]-[74], Lewis LJ expressed doubt about the correctness of various aspects of the guidance in Cava Bien, finding that it was apt to mislead in important respects. He held that the proper approach to s31(2A) was instead as follows:

Ms Thelen’s submissions invited me to adopt the approach which Lewis LJ emphatically disapproved in that paragraph, by attempting to predict what the respondent would have said about the exercise of her discretion if she had turned her mind to it. Ms Thelen emphasised that the respondent attaches importance to the requirements of the Immigration Rules and that grants of LOTR are rare. The law in the latter respect was recently examined by Farbey J, in a very different context, at [8]-[12] of QP1 and QP2 v Secretaries of State for the Home Department and Defence [2025] EWHC 1388 (Admin). Ms Thelen also emphasised that there was very little said by the applicant’s solicitors in this case to justify the unusual step of granting entry clearance to a skilled worker who did not meet the black and white requirements of the Rules.

Although I agree with those submissions, they invite me to venture into territory which is forbidden for the reasons given by the Court of Appeal at [273] of R (Plan B Earth) v Secretary of State for Transport & Ors [2020] EWCA Civ 214; [2020] PTSR 1446:

It is not for me to attempt to predict how the respondent might have acted if she had turned her mind to the request. As Mr Malik noted, there is no witness statement or other evidence from an official to explain the outcome which would have been reached if she had done so. The error was a fundamental one, in that the respondent ignored the request altogether, and it is simply not possible to know whether it is highly likely that the decision would have been the same if that error had not occurred.

It follows that ground three is also made out, and I decline the respondent’s invitation to refuse relief under s31(2A).