When are reasons not sufficient reasons? Petition of A, B and C for Judicial Review [2024] CSOH 88

A decision of the Home Secretary has been set aside by the Court of Session in a judicial review because the decision provided insufficient reasons. The judgment serves as a useful reminder to local authorities and other decision makers of the requirements of sufficient reasons and the dangers for decision makers in failing to provide adequate reasons.

Facts

Petitioners A, B and C had all applied to the Home Secretary for leave to remain at the same time. On 6 October 2023, the Home Secretary refused applications from the petitioners for leave to remain in the United Kingdom ("the first issue") and rejected that A, B and C had made a fresh claim for asylum in the United Kingdom ("the second issue").

For petitioners A and B, the decision letters from the Home Secretary said, regarding the second issue, that:

"I have considered your further submissions together with previously considered material and concluded that your further submissions, although rejected for the reasons given above, would have no realistic prospect of success before an immigration judge, so they do not amount to a fresh claim"

The petitioners challenged the Home Secretary's decisions and argued that the Home Secretary was under a duty to provide reasons and failed to provide sufficient reasons for the second issue. The petitioners and Home Secretary agreed that reasons were required and the dispute concerned whether reasons had been provided and whether the reasons given were sufficient.

Judgment

The Court provides a useful and succinct summary of the law regarding the quality of reasons that need to be provided with decisions. The Court starts by considering the decision of Lord President (Emslie) in the case of Wordie Property Co Limited v Secretary of State for Scotland which provides that reasons must:

“deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

The Court also considers the decision of the House of Lords (the precursor to the UK Supreme Court) in the case of South Bucks District Council and another v Porter (No. 2):

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. ...”

Applying this to the facts of the case, the Court found:

• the decisions provided reasons why the first issue was decided but that they did not indicate the basis upon which the second issue was decided;
• that giving an indication of how the decision on the second issue had been made was one of the functions that reasons required;
• the tests applicable and the decision made on the second issue were distinct from the reasons for the decision on the second issue;
• it was insufficient to say that the test had been identified and applied;
• where reasons underlying a decision might not be hard to ascertain, it is not the function of the court to speculate or guess as to what they were.
• that the duty to give reasons should not impose an unreasonable burden on decision makers.
• requiring decision makers to indicate how a conclusion was reached is not dictating the content of reasons that need to be given.

Comment

There is no free-standing duty to provide reasons in the UK. However, where reasons are provided, the reasons should be sufficient to leave the informed reader in no real and substantial doubt as to why a decision was made.

The Court in this case recognises that what is required from reasons will vary heavily depending on the context in which the decision is made. The Court also recognises that decision makers should not be placed under an unreasonable burden when making decisions. Taking this further, decision makers should not be drawn into providing overly complex, lengthy or legal reasons when providing reasons.

The judgment does serve of a useful reminder to decision maker on reasons. When reasons are provided, decision makers should:

• identify the test to be applied by the decision maker;
• identify the factors they have relied upon or not relied upon and why;
• provide their decision;
• explain why the factors relied upon and the applicable test led to the decision maker decide matters the way they did.