Tribunal decisions

The decision

Case No: JR-2024-LON-000850
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

12 March 2025

Before:

THE HON. MR JUSTICE BOURNE
UPPER TRIBUNAL JUDGE LOUGHRAN

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Between:

THE KING
on the application of
YC
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr M Symes
(instructed by Southwark Law Centre), for the Applicant

Ms H Masood
(instructed by the Government Legal Department) for the Respondent

Hearing date: 11 February 2025

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J U D G M E N T

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Mr Justice Bourne:

Introduction
1. The Applicant was granted permission on 28 August 2024 for this judicial review of a decision made by the Secretary of State and communicated by an emailed letter on 22 December 2023.

2. He is a citizen of China, born on 23 August 1971. On 28 March 2019 he claimed asylum in the UK. He claimed to be in debt to loan sharks in China who had attacked him in 1999. He was also a victim of trafficking. In December 2021 he was diagnosed with incurable cancer. At the hearing we announced our decision to allow him anonymity because of his personal circumstances.

3. By a decision letter dated 8 November 2023, he was informed:

“Your protection claim (asylum application) made on 28/03/2019 has been refused but you have been granted permission to stay in the United Kingdom (UK) based on your your [sic] private life in the UK as an adult.”

4. Further down, the letter continued:

“What this means for you
You have been granted settlement (also known as indefinite permission to stay) in the UK. Settlement in the UK: what you need to know You can find information on what it means to be settled in the UK at: www.gov.uk/guidance/indefinite-leave-to-remain-in-the-uk

Working in the UK
There is no immigration restriction on your ability to work in the UK. This means you may work in any business or profession, as an employee or self-employed. You must comply with the law and any statutory regulations for that business, profession or employment.”

5. Those two paragraphs gave the Applicant to understand that he had been granted indefinite leave to remain in the UK (“ILR”).

6. The letter explained that the Secretary of State accepted that the Applicant was of adverse interest to a loan shark and was a victim of trafficking but found that there was no real risk of harm on return because there would be sufficient protection from state authorities and/or he had the option of internal relocation.

7. In relation to family and private life the letter added:

“I have decided to grant you permission to stay in the UK based on your right to respect for private and family life under Article 8 of the ECHR. This grant is based on your private life in the UK as an adult because it is considered that there would be significant obstacles to you reintegrating in China.”

8. Under the heading “What happens next”, the letter continued:

“Biometric Residence Permit (BRP)
You will receive a Biometric Residence Permit (BRP) as evidence of your status. This will be sent to you by courier, usually within 7 to 10 days of receiving this decision.”

And:

“If there is an error on your BRP
If you think something is wrong on your BRP, such as your name, sex, or it was damaged when you received it, you must let us know. You only have 14 days from the date of receiving your BRP to let us know about an error. Otherwise you may have to apply and pay for a replacement.”

9. On 5 December 2023, the Applicant’s representatives received the BRP. However, that document referred only to “leave to remain” and gave an expiry date of 31 December 2024. That prompted them to write to the Respondent on 11 December 2023, asking for confirmation that he had in fact been granted ILR.

10. On 22 December 2023 the Respondent replied by email, saying “I have attached the correct decision letter stating your client’s permission to stay until 12/05/2026”. The attachment was a decision letter back-dated to 8 November 2023, stating in particular:

“Your protection claim (asylum application) made on 28/03/2019 has been refused but you have been granted permission to stay in the United Kingdom (UK) based on your your [sic] private life in the UK as an adult.
…

What this means for you
You have been granted permission to stay in the UK until 12/05/2026. You can apply to extend your stay in the UK before your current permission ends.

You have this permission whether or not you appeal the decision to refuse your protection claim.

You may be eligible to apply for settlement in the future. You can find out about settlement at https://www.gov.uk/settle-in-the-uk.”

11. By this claim, the Applicant challenges the decision of the Respondent purporting to substitute the letter sent on 22 December 2023 (dated 8 November), referring to a grant of limited leave, for the letter sent on 8 November 2023 which had referred to a grant of ILR.

The issue

12. The Applicant’s central contention is that the Respondent, having communicated a decision to grant ILR, had no power to revoke, withdraw or change that decision. His counsel, Mark Symes, contends that that proposition can be established by reference to a line of immigration cases to which we turn below.

13. For the Respondent, Hafsah Masood of counsel contends that the Respondent has an implied power to withdraw and correct an erroneous decision which is incidental to her statutory powers under the Immigration Act 1971 (“the 1971 Act”), and that this is consistent with an approach which recognises the existence of such a power for public authorities generally.

Statutory framework

14. Section 3(1) of the 1971 Act provides that (unless otherwise provided) a person who is not a British citizen shall not enter the UK unless given leave to do so, and may be given leave to enter or remain either for a limited or for an indefinite period.

15. Section 4(1) provides:

“The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) [or to cancel any leave under section 3C(3A)] 1 , shall be exercised by the Secretary of State; and, unless otherwise [allowed by or under] 2 this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.”

16. Section 3(5), section 3(6) and section 5(1) empower the Secretary of State to order such a person’s deportation from the UK in certain circumstances.

17. Until 2002, the only way to cancel or revoke a grant of ILR was to make a deportation order under sections 3 and 5 of the 1971 Act. However, a new power was introduced by the Nationality, Immigration and Asylum Act 2002 (“NIAA”) of which section 76 provides:

“(1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person—
(a) is liable to deportation, but
(b) cannot be deported for legal reasons.

(2) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if—
(a) the leave was obtained by deception …

(3) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of—
(a) voluntarily availing himself of the protection of his country of nationality,
(b) voluntarily re-acquiring a lost nationality,
(c) acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or
(d) voluntarily establishing himself in a country in respect of which he was a refugee.”

The immigration cases

18. In R v SSHD ex p Ram [1979] 1 WLR 148, an applicant on entering the UK was given leave to remain for an indefinite period. He was not entitled to that leave, which was given to him “by a genuine and honest mistake on the part of the relevant immigration officer”. The Divisional Court also found that the leave had not been obtained by any fraud or dishonesty on his part. He considered himself to be lawfully in the UK and, over a period of about 16 months, he established a business here. He then came to the notice of the immigration authorities who detained him, contending that he was unlawfully present in the UK.

19. May J referred to another habeas corpus case, R v SSHD ex p Hussain [1978] 1 WLR 700 at 707, where Geoffrey Lane LJ said:

“Put into terms of the present case, was the indefinite permission given by the immigration officer at Dover in May 1974 a proper exercise of discretion by which the Secretary of State is bound, or was it a decision brought about by deception, misrepresentation or fraud of the applicant?”

20. Addressing the same question and granting Mr Ram’s application for a writ of habeas corpus, the court ruled that there had been a legally effective grant of ILR despite it being the result of a mistake.

21. In R (Hashmi) v SSHD [2002] EWCA Civ 728, an applicant was granted ILR by a letter dated 11 July 2000 as the spouse of a British citizen. That decision was made intentionally and, at that date, the applicant qualified for the grant. In or around August 2000 evidence emerged of the breakdown of her marriage. The applicant pressed the Home Office to return her passport with a stamp showing the grant of ILR. On 31 July 2001 the Home Office sent a letter stating that her application for ILR was refused because her marriage was no longer subsisting. The Court of Appeal allowed her appeal against the refusal of her claim for judicial review, deciding that the letter of 11 July 2000 amounted to a decision and, on a proper construction, was a grant of ILR. Sir Swinton Thomas said at [20]:

“I would accordingly conclude that the letter of 11th July did constitute the exercise by the Secretary of State of his power to grant ILR. Short of exceptional circumstances, such as the leave having been obtained by fraud or misrepresentation, that leave, if properly granted, cannot subsequently be withdrawn merely on the basis that there has been a change of circumstances.”

22. In R (Rechachi and others) v SSHD [2006] EWHC 3513 (Admin), a Mr Kalobo had applied for ILR. He was sent a letter enclosing a status document which incorporated a “vignette”. There was an error in the production of the vignette, with the result that on the one hand, it stated that his leave to remain was valid until 20 December 2010, and on the other, under “type of permit” it stated “settlement” and under “remarks” it stated “indefinite leave to enter the UK”.

23. The issue was set out at [89] by Davis J:

“The Secretary of State before me has not pursued alternative arguments based on assertions of mistake of fact or the doctrine of ultra vires. The sole point argued before me was the issue of the correct interpretation of the status document, and in particular the vignette as sent on 20 December 2005. This document is indeed at first sight seemingly self-contradictory. On the one hand it says "valid until" a date five years hence; on the other it expressly includes the words "settlement" and "indefinite leave to enter the UK".”

24. Citing Ram, Davis J said at [92] that if the wording of the document had a particular meaning and effect, that would be its meaning and effect even if a mistake had occurred. He added that it was not suggested that Mr Kalobo had practised any deception to obtain the document or contributed in any way to the mistake. He ruled that the document, properly construed, was a grant of ILR. He added at [97.3]:

“My attention was not drawn to any statutory power entitling the Secretary of State to revoke or alter a status document on the ground of unilateral mistake.”

25. In SSHD v Allaraj [2023] UKUT 00277 (IAT), a stamp was placed in the respondent’s passport by an Immigration Officer, recording that he was admitted to the UK under the Immigration (EEA) Regulations 2016 because he was in a durable relationship with an EEA national. It was found on the evidence that the immigration officer did not have authority to make such a grant, which could be made only by an Entry Clearance Officer. The Upper Tribunal (Hill J and UTJ Blundell) ruled that although the respondent had acted in good faith, the grant of permission was ultra vires and the respondent was in the UK unlawfully because of the lack of authority, and that this distinguished the case from Ram.

26. Vasa v SSHD [2025] 1 WLR 39 concerned two other cases where immigration officers placed stamps in passports recording that the holders were admitted to the UK under the Immigration (EEA) Regulations 2016. The question arising under that case was the different one of how their admission to the UK fell to be addressed under the Agreement on the withdrawal of the UK from the EU. But at [59] Lewis LJ expressed a view which appeared to differ from that of the UT in Allaraj:

“The words in the stamp are “Admitted to the UK under the Immigration (EEA) Regulations”. The reasonable, objective, interpretation of what the decision of the immigration officers meant was that Mr Vasa and Mr Hasanaj were allowed to come to the United Kingdom and live there with their brother and sister respectively as they were persons considered eligible to do so. For these purposes, it is not relevant whether the immigration officers were mistaken as to the facts (for example, whether or nor Mr Vasa was dependent on his brother, or whether or not Mr Hasanaj was a member of his sister’s household). Nor does it matter whether the immigration officers made errors of law as to the scope of their powers.”

The Applicant’s submissions

27. Both parties agree that the original letter of 8 November 2023, properly construed, was a grant of ILR.

28. Mr Symes submitted that the immigration cases show, first, that a mistaken grant of ILR will still be construed as a grant of ILR and, second, that once such a decision is communicated, the SSHD has no general power to revoke or withdraw it. Revocation, he submitted, can occur only in the circumstances specified in NIAA section 76, none of which apply to the present case. Mr Symes submitted that section 76 provides a complete code governing the revocation of ILR and that this is recognised in the Respondent’s published guidance documents. Thus Cancellation and curtailment of permission (March 2024) states on page 10 that section 76 provides “the only power to cancel such leave in country”, and Revocation of indefinite leave (October 2023) states on page 21:

“In cases where a person honestly provided information in support of their application and the decision maker had the authority to grant leave but for example overlooked that the applicant did not entirely meet the requirements of the Immigration Rules, the applicant cannot be said to have used deception and therefore the power to revoke indefinite leave under section 76(2) cannot be used.”

29. Consistently with that, there are also precisely delineated and exhaustive powers in Part 9 of the Immigration Rules to cancel limited leave.

30. The only provision in the Immigration Rules relating to leave granted in a case where the person in question never met the requirements for the grant is found in Annex A3.4 of Appendix EU, and it applies only to curtailment of a grant of limited leave, not ILR.

31. Mr Symes also relied on NM Zimbabwe [2007] UKAIT 00002, which contains a statement (at [5]) that there is no power to cancel leave to remain retrospectively. However, we are satisfied that that passage was addressing a different point, about the time when a lawful cancellation or revocation takes effect.

32. More generally Mr Symes submitted that it is right for such a power to be clearly and closely limited, because a grant of immigration status defines and determines a migrant’s rights and their relationship with the state and with third parties. Deprivation of a person’s status may have the fundamental effect of exposing them to the “hostile environment” referred to in Balajigari [2019] EWCA Civ 673. If there were a more general power to revoke or cancel grants of immigration status, parties such as landlords might be unwilling to assume the validity of individuals’ status.

33. Mr Symes therefore contended that the public law authorities cited by Ms Masood (considered below) do not assist. They turn on specific statutory contexts or specific facts rather than establishing a general principle, and/or any principle is more limited and not applicable to the immigration context for the reasons summarised in the previous paragraph of this judgment.

34. In conclusion, he submitted that the proposed power to withdraw and correct would be a recipe for confusion, in an area where many applicants do not have legal representation. The better solution would be for the Respondent to take more precautions against mistakes and/or to amend the Immigration Rules to introduce a procedure to deal with mistakes.

The Respondent’s submissions

35. As well as accepting that the original letter of 8 November 2023 must be construed as a grant of ILR, Ms Masood agrees that the Respondent cannot rely on the revocation power in NIAA section 76.

36. She submits that what the Respondent sought to do on 22 December 2023 was not to revoke a grant of ILR. Instead, it was the withdrawal and correction of a decision letter which, by inadvertence, contained the wrong decision.

37. The power to do that, Ms Masood submits, is reasonably incidental to the Respondent’s powers to grant ILR contained in sections 3 and 4 of the 1971 Act. The existence of implied incidental powers was recognised by the Supreme Court in R (New London College Ltd) v SSHD [2013] UKSC 51, [2013] 1 WLR 2358 where Lord Sumption said at [27]:

“It has long been recognised that the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority: see Harris, “The ‘Third Source’ of Authority for Government Action Revisited” (2007) 123 LQR 225. The extent of these powers and their exact juridical basis are controversial. In R v Secretary of State for Health, Ex p C [2000] 1 FLR 627 and R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] 3 All ER 548, the Court of Appeal held that the basis of the power was the Crown’s status as a common law corporation sole, with all the capacities and powers of a natural person subject only to such particular limitations as were imposed by law. Although in R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, para 47 Lord Hoffmann thought that there was “a good deal of force” in this analysis, it is open to question whether the analogy with a natural person is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and hiring staff and the like. But the question does not need to be resolved on these appeals because the statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors.”
(emphasis added)

38. See also Lord Carnwath at [33]:

“It is clear (following R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192) that the Secretary of State’s powers of immigration control are confined to those conferred expressly or impliedly by the 1971 Act. They may include both powers expressly conferred and powers reasonably incidental to them: see Wade & Forsyth, Administrative Law, 10th ed (2009), p 181; Bennion, Statutory Interpretation, 5th ed (2008), p 494 et seq.”

39. Ms Masood submits that a power to withdraw and correct a mistaken decision in circumstances such as those in the present case is reasonably incidental to the power to grant or refuse ILR.

40. That, she submits, is consonant with an approach which can be seen more generally in other public law contexts. In Porteous v West Dorset DC [2004] EWCA Civ 244, [2004] HLR 30, a local authority decided that an applicant for housing was owed a duty by virtue of being homeless and in priority need. A few months later it was discovered that the applicant in fact held a tenancy of a property, though she had believed that this had been transferred to her sister. The Court of Appeal ruled that even in the absence of bad faith by any party, an authority was entitled to revisit and change a decision which had resulted from a fundamental mistake of fact. Mantell LJ said at [9]:

“Is the local housing authority entitled to revisit and change an earlier decision if the earlier decision resulted from a fundamental mistake of fact? It would seem surprising if it could not. If an exception may be made for fraud why not for fundamental mistake? After all the resulting harm may be no greater in the one case than the other. Here, without there being any suggestion of bad faith on either side, unknown to either party there was accommodation available at the date of the original decision. Once the true position became known why in commonsense and justice should the local authority be held to a duty to provide accommodation which the applicant does not need and which could be made available in another more deserving case?”

41. Porteous was followed in Fajemisin v General Dental Council [2013] EWHC 3501, [2014] 1 WLR 1169. There a dentist was facing fitness to practise proceedings. The respondent, overlooking that fact, made a decision removing his name from the register for different reasons, which had the effect that the fitness to practise proceedings could not continue. When the mistake was realized, his name was restored to the register to allow the proceedings to continue. Dismissing an appeal by the dentist, Keith J said at [37]:

“Porteous is authority for the proposition that, in addition to cases in which a public body can revisit a previous decision under the equivalent of the slip rule, a public body can revisit a decision which was made in ignorance of the true facts when the factual basis on which it had proceeded amounted to a fundamental mistake of fact.”

42. Noting that in Fajemisin, unlike Porteous, the decision being re-opened had not involved any exercise of judgment and that there was no suggestion of bad faith, Keith J concluded that the registrar had had the power to revisit the earlier decision. He explained that this did not cause anyone any injustice, and at [39] that maintaining the original decision would give Mr Fajemisin “a windfall of which he was the unintended beneficiary and of which he was unaware for much of the time”. At [40] he added that whilst there might be a distinction between decisions involving and not involving the exercise of judgment, there was no relevant decision between judicial and administrative decisions.

43. Fajemisin was followed in R (Chaudhuri) v General Medical Council [2015] EWHC 6621 (Admin). There, the challenge was to a refusal to rule that a complaint had been brought outside a 5 year time limit. An initial decision by the registrar that the complaint was in time was based on a mistake of fact. The GMC argued that there was no power to revisit the registrar’s decision. Haddon-Cave J noted at [45] that there was a conflict of authorities on the scope of a public authority’s power to review its own decisions. He adopted the analysis in Fajemisin, saying at [46-47]:

“46. … In my view, the inherent jurisdiction of public bodies to revisit previous decisions is not limited simply to correcting slips or minor errors which do not substantially affect the rights of the parties or the decision taken; on the contrary, public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated.

Broad corrective principle

47. I have no doubt that such a broad corrective principle exists in administrative law. Public bodies must have the power themselves to correct their own decisions based on a fundamental mistake of fact. To suggest otherwise would be to allow process to triumph over common sense. There is no sense in requiring wasteful resort to the courts to correct such obvious mistakes. Administrative law should be based on common sense.”

44. Haddon-Cave J added:

“50. In my view, the law is correctly stated in the current edition of Wade & Forsyth, Administrative Law, the 11th edition (2014), at p. 192: 230

‘Even where such powers are not expressly conferred, it seems that statutory tribunals have power to correct slips and to set aside judgments obtained by fraud or based on a fundamental mistake of fact.’

51. The principle would naturally operate subject to the ordinary principles of fairness in administrative law (e.g. legitimate expectation and the rights of persons acting to their detriment in reliance upon such decisions).”

45. The immigration cases, Ms Masood contended, simply do not decide this point, but instead are directed at a different type of case where there has been a change of circumstances rather than a fundamental mistake.

Discussion

46. In our judgment, none of the previous cases is precisely on point.

47. The immigration cases do not decide the question. Ram decided that a grant continues to have legal effect despite being made by mistake but does not address the question of whether or how a mistake may be corrected. Hashmi established the different point that a valid grant of leave cannot be withdrawn because of a later change of circumstances (and that case was more focused on a question which does not arise here, of whether the grant had been valid when made). Rechachi was much closer to the present facts, but Davis J expressly said that the only issue was the validity of the original grant and that he had not been addressed on the existence of any power to revoke a grant on the grounds of unilateral mistake, and it therefore does not assist with the present question. Allaraj and Vasa were both concerned with the effect of a lack of authority in the individual making a grant, which is not the issue in the present case.

48. Porteous, Fajemisin and Chaudhuri demonstrate that in some circumstances a public authority will have a power to re-open and correct a decision based on a fundamental mistake of fact (although as Mr Symes pointed out, the appeal in Chaudhuri actually turned on a different point). However, in our judgment the question of whether a specific decision can be re-opened and corrected will always depend on the factual and legal context.

49. Moreover, we are not convinced that the present case is properly described as one of fundamental mistake of fact. An immigration decision could be based on a fundamental mistake of fact, e.g. as to a person’s length of residence in the UK or marital status or any other decisive characteristic. The question of what powers the Respondent has upon discovering such a mistake may well vary according to the type of decision that is in issue. But in the present case, it cannot be said that the decision-maker mistakenly believed that the Applicant was entitled to ILR and then discovered that he was not. Instead, the decision-maker decided to grant limited leave but, through a clerical error, used a letter template which communicated an unintended grant of ILR.

50. That view of the facts is contained in the Respondent’s pleaded case and has not been contested. We note that if it had been contested, it would have needed to be proved by evidence.

51. In the circumstances we are not deciding the question of what are the Respondent’s powers in a case of fundamental mistake, let alone a case of change of circumstances.

52. Instead, the question is whether the Respondent can correct an error of the kind described where by pure inadvertence the wrong decision is communicated.

53. The answer cannot lie in a mere “slip rule” whereby an authority can correct trivial clerical errors such as the spelling of a name. In the present case, as Mr Symes said, there was a considerable and important difference between the “right” grant, of limited leave, and the “wrong” grant, of ILR.

54. Nevertheless, we have come to the conclusion that on the facts of this case, the Respondent did have a power to make the correction, and that such a power is reasonably incidental to the statutory powers to grant or refuse ILR.

55. In reaching that conclusion, we consider that the correction was not a revocation. Revocation may occur, for example where a fraud is discovered or in some cases where circumstances have changed, and is governed by section 76. The tight limits of section 76 reflect the fact that revocation will always involve the reconsideration of a decision that was made intentionally, even if it was made on a false premise. That is not what happened here.

56. What happened in this case was the correction of something in the nature of a slip, but a slip which was liable to have serious consequences. On the facts of this case it could be described as inadvertence or carelessness. In another case such an error might arise by an IT malfunction. The essence of it is that the decision communicated was not the decision which the decision-maker intended to make.

57. Although the public law cases are not on all fours with this one, we agree with the comments of Haddon-Cave J in Chaudhari at [46]-[51] (whether or not they were part of the ratio of his decision). Where a corrective power exists, it can extend to correcting a decision which affects the rights of the parties, even in the important ways emphasized by Mr Symes. That is because, if the power did not exist, there could be serious consequences for the public interest, for example in a case where ILR had been inadvertently granted to a person who was disqualified for such a grant by having serious criminal convictions. Another important negative consequence would be a failure to treat like cases alike. And, on the facts of this case, as in Chaudhari, to deny the power would be “to allow process to triumph over common sense”.

58. Although we have decided that there is an implied power, incidental to the statutory powers under the 1971 Act, to correct an inadvertent error, the situations in which it can be exercised may be rare. It is subject to the caveat expressed by Haddon-Cave J in Chaudhari at [51] (quoted above). In the present case we note in particular that the error was discovered quickly and there was no evidence that anything had been done in reliance on the erroneous decision.

Conclusion

59. We therefore conclude that, on the unusual facts of this case, the decision communicated by the Respondent on 22 December 2023 was lawful, and we dismiss the claim for judicial review.