Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: JR-2025-LON-000242

Field House,
Breams Buildings
London, EC4A 1WR

20 June 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

THE KING
on the application of
S G
(ANONYMITY ORDER MADE)
Applicant
- and -

(1) FIRST-TIER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents

Mr R Toal and Mr M Spencer, counsel
(instructed by Turpin Miller), for the applicant

The first respondent took no part in the proceedings

Mr M Biggs, counsel
(instructed by the Government Legal Department) for the second respondent

Hearing date: 23 May 2025

- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Neville:
Summary of decision
1. SG is a Jamaican national who faces criminal deportation from the United Kingdom. She arrived in 1991 aged 2 years old, after which her life in this country has been marked by violence and exploitation. She is a victim of sexual abuse (both as a young child and as an adult), a victim of modern slavery, has been diagnosed with complex PTSD, is unable to care for her two children and has a history of suicidal behaviour. Yet, through SG’s own criminal behaviour, she has also inflicted violence and harm on others. Her long history of offending most recently saw her sentenced to 5 years’ imprisonment for wounding, actual bodily harm, possession of a knife and being concerned in the supply of cocaine and heroin.
2. This judicial review is not about whether SG should be deported, which will be decided in an appeal presently before the First-tier Tribunal. Instead, the Upper Tribunal has decided as follows:
a. When SG was interviewed in prison on 11 October 2023 by an Immigration Officer in connection with deportation and asked why she wanted to remain in the United Kingdom and why she could not return to Jamaica, the answers she gave constituted the making of a human rights claim within the meaning of section 113 of the Nationality, Immigration & Asylum Act 2002.
b. The stage 2 decision of 21 February 2024, maintaining the Secretary of State’s prior decision to make a deportation order, refused a human rights claim. SG accordingly had a right of appeal against the decision to the First-tier Tribunal (“FtT”).
c. By failing to inform SG that she had a right of appeal, the decision failed to comply with regulation 5 of the Immigration Notices Regulations 2003 and the time by which an appeal must be made had not started to run. The appeal to the FtT was therefore valid and timeously made.
d. SG was granted Indefinite Leave to Remain (“ILR”) in the United Kingdom on or around 11 December 1993.
e. Section 79(4) of the 2002 Act did not prevent the deportation order invalidating that leave, as section 78 does not apply before an appeal is instituted. At the time the deportation order was made, no appeal had been instituted. Nonetheless, when making the deportation order the Secretary of State decided it that would not have any effect until any appeal rights had been exhausted. As a consequence of the conclusions above, that has not yet occurred. SG’s ILR continues. The outcome of this judicial review is therefore not academic.
f. In relation to the FtT’s decision of 28 October 2024 not to accept the appeal, permission and substantive relief are granted. The decision is quashed and the matter remitted to the FtT to decide in accordance with the Upper Tribunal’s findings. In relation to the stage 2 decision and deportation order, time is extended and permission granted, but the substantive application is dismissed.
3. The Upper Tribunal’s full reasons are as follows.
The proceedings
4. The FtT has chosen not to participate in the proceedings, so from now on ‘the parties’ refers to SG and the Secretary of State. An order was made on 24 April 2025 listing an expedited, rolled-up hearing to consider both permission to apply for judicial review and, if permission was granted, the judicial review claim itself. That hearing took place on Friday 23 May 2025.
5. This judgment does not set out all the background and biographical facts, this being both unnecessary and apt to undermine the anonymity to which SG is entitled as an alleged victim of a sexual offence and as a victim of trafficking. The full facts will, in any event, be the subject of findings in SG’s forthcoming appeal.
6. SG applies for judicial review of:
a. The decision of the Secretary of State dated 21 February 2024 to make a deportation order (“the stage 2 decision”);
b. The deportation order itself, also dated 21 February 2024; and
c. The decision of the First-tier Tribunal dated 28 October 2024 that there was no right of appeal against the stage 2 decision, so no further action would be taken on SG’s appeal.
7. Counsel made their arguments according to an agreed list of issues, without departing from the scope of SG’s grounds for judicial review. I have addressed those issues, but structure this judgment according to the decision summary at [2] above.
Did SG make a human rights claim on 11 October 2023?
The parties’ cases
8. The relevant facts leading up to what Mr Toal argues was SG’s human rights claim can be uncontroversially set out as follows:
a. As will be set out in greater detail when considering the issue of ILR, there is no direct documentary evidence showing that SG was ever granted leave in the UK.
b. In 2005 SG took a two week holiday to Jamaica, travelling in and out of the UK on her mother’s passport.
c. On 21 August 2007 SG’s daughter was born.
d. SG’s application for housing on 9 February 2010 prompted examination of her immigration status by the Home Office. SG’s date of birth and when she arrived in the UK was considered, but after receiving no response to a request for her mother’s passport a decision was taken that leave in the UK could not be confirmed.
e. On 30 July 2013 SG was arrested on suspicion of burglary, an allegation on which no further action was ultimately taken. Following referral to the Home Office, SG was served notice as an overstayer and required to report weekly.
f. On 5 October 2015 SG was sentenced to 4 weeks’ imprisonment for theft. It is noted on her Home Office files ten days later that there is still doubt over whether she has been granted leave to remain.
g. The following month, SG was sentenced to 2 months’ imprisonment for a further offence of theft. Further immigration status enquiries were made by the Home Office, including communication with SG’s mother who thought that SG’s leave would be shown on the passport used for the holiday in 2005, which is now lost.
h. On 13 December 2016, records note that SG had not complied with her reporting restrictions and that her “Art 8 claim” was still being considered. The following month, on 13 January 2017, SG was sentenced to 8 weeks imprisonment for drug offences, theft and failing to surrender. It was determined that SG did “not meet deport criteria” and a further referral was made to consider her immigration status.
i. SG was imprisoned for 1 month for theft on 27 April 2017 and received a suspended prison sentence of 12 months for possession of a knife on 27 November 2017. These offences did not prompt renewed deportation action.
j. On 3 September 2019, SG was served with further overstayer documents and made subject to immigration reporting. Her immigration bail conditions prohibited work and study.
k. On 7 November 2019 SG was sentenced to a community order for possession of a class A drug and theft.
l. SG’s son was born on 31 March 2021.
m. The offence for which SG now faces deportation was committed on 31 January 2023, and she was sentenced to 5 years’ imprisonment on 25 September 2023.
9. The Home Office consideration summarised above is disclosed by its CID and ATLAS files relating to SG, which I have considered in full and for which I shall use the term “Home Office files” as shorthand from now on.
10. An “Immigration Prison Team Induction Interview” was conducted between SG and an Immigration Officer on 11 October 2023, a record being completed and uploaded to the Home Office files. The parts relied upon by Mr Toal are: (emphasis in original)
1.0 Introduction of Immigration Team
Introduce yourself and the purpose of the Immigration IPT Team.
The following may be read directly be an officer/interpreter.
The reason we are meeting today is to discuss how your sentence could affect your Immigration status in the UK, discuss possible outcomes, process and options available to you. Please answer all the questions fully and truthfully. Some of the questions may seem personal and intrusive however they are designed for us to make sure you get the get the right support and advice.
1.1 Do you understand? Yes ☑ No ☐
[omitted]

2.0 Immigration process explained
[omitted]
Yes ☑ No ☐ DO Criteria and processes
Yes ☑ No ☐ Liability to possible revocation of status
Yes ☑ No ☐ Appeal process
Yes ☑ No ☐ Asylum/NRM process
[omitted]

11. Pausing there, Mr Toal puts forward that the record so far shows SG being given the pro-forma introduction, confirming her understanding, and then being told the criteria and processes for a deportation order (the agreed meaning of DO). The appeal process is then explained, as is the process for making an asylum claim or seeking referral as a victim of trafficking. The record then asks a series of questions concerning when SG arrived in the UK, which she gave according to the dates I have already set out.
12. The interview then continues by asking for family details, recording SG’s replies that she has a British partner and a daughter, son, mother and sister, all living in the UK. SG’s family in Jamaica is listed as her father with whom she is no longer in contact.
13. The next relevant part of the interview is:
6.0 Intent upon release from custody
6.1 Do you wish to return to your home country?
YES ☐ NO ☑
6.1.1 If NO, what is the reason for wanting to remain in the UK and what reason/s are you are [sic] unable to return to your home Country?
- My children are in the UK
- Family in UK
- I have lived in UK since 3 year
6.1.2 Would you be willing to provide further information about this?
- Yes, at later stage

The record also notes that the father of SG’s daughter was previously deported to Jamaica.
14. The above replies in interview are put forward by Mr Toal as amounting to the making of a human rights claim.
15. Mr Biggs’ arguments in response can be summarised as follows: (i) the answers in interview were too brief and vague to amount to a human rights claim, and were furthermore provisional; (ii) even if the answers in interview did amount to a human rights claim, there was no duty upon the Secretary of State to consider it because it did not constitute a valid application under the relevant Immigration Rules.
Did the answers in interview amount to the making of a human rights claim?
16. A human rights claim is defined at section 113 of the Nationality, Immigration & Asylum Act 2002:
“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State1 that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention)
17. In R. (Alighanbari) v SSHD [2013] EWHC 1818 (Admin) at [70], it was held that the “minimum elements” of a human rights claim are the following:
70. Thirdly, as to what constitutes a "human rights claim" within the statutory definition, in my judgment, the following elements must be present on the facts: (a) a claim not to be removed from the UK; (b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects; (c) an assertion that removal will interfere with that private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life). …
18. In MY (refusal of human rights claim : Pakistan) [2020] UKUT 89 (IAC), Alighanbari was held to still be good law. MY was the subject of an appeal, MY (Pakistan) v SSHD [2021] EWCA Civ 1500, but the Court of Appeal was not concerned with the issue of what constitutes a human rights claim (see Underhill LJ at [52]). In Baihinga (r. 22; human rights appeal: requirements) Sierra Leone [2018] UKUT 90 (IAC), the Upper Tribunal held that a human rights claim within an immigration application need not be explicitly stated, but could be derived from the application’s contents:
28. … In the present case, the appellant completed an application form for entry clearance as a returning resident under paragraphs 18 and 19 of the rules. She did not expressly claim, whether in the application form or the accompanying documentation, that a refusal to grant her re-entry into the United Kingdom would violate her ECHR Article 8 Rights. Nevertheless, compatibly with the guidance, the respondent would need to treat her application as including a human rights claim if it appeared from the totality of the information supplied that the appellant was advancing a case which, on the facts, properly required the caseworker to consider whether a discretionary decision to be made under the relevant immigration rule or rules needed to be taken by reference to Article 8 issues, or to look beyond the provisions of the immigration rules and decide, if those rules were not satisfied, whether an Article 8 case was nevertheless also being advanced.
19. I agree with Mr Toal that the essential ingredients required by section 113 are all present in the interview. The authorities all concern a written claim (whether or not in an application) submitted to the Secretary of State, but it is not argued that a claim cannot be made orally. The interview must be looked at as a whole. SG was visited in prison by an Immigration Officer who explained the deportation process, elicited the names of her family members, and then asked whether she was willing and able to return to Jamaica. SG responded that she was not, because she had children and family in this country and had lived here since the age of 3 years old. These are plainly the very circumstances that would be at the centre of any claim that removal would be a disproportionate interference with the right to respect for SG’s family and private life afforded by Article 8: see, for example, Part 5A of the 2002 Act, Part 13 of the Immigration Rules, and HA (Iraq) v SSHD [2022] UKSC 22 at [51]. SG does not, as suggested by Mr Biggs, simply “refer to matters that could found the basis for a private and family life”, she instead put them forward as the explicit reasons why she was unwilling and unable to leave the UK. This is consistent with MY at [51].
20. I disagree with Mr Biggs’ argument that SG gave those details on some sort of provisional basis that entitled the Secretary of State to disregard them until they were finalised. That is not a sustainable interpretation of question 6.1.2, which simply asks in the conditional tense if SG would be willing to provide more information. If this were an instruction that she must provide any further necessary information or what she has just said may be disregarded, it would say so, as well as provide a means and deadline by which this should be done. Nor is that point supported by SG’s subsequent lack of response to the stage 1 decision, as that contains the following after a request for further information:
If you inform us of any reasons why you should not be deported from the United Kingdom, or if you have already made representations which have not been considered in this decision, further consideration will be given to your circumstances and we will advise you of whether or not your deportation will be pursued.
21. This would suggest to any reader that reasons already given but not mentioned in the letter would be considered in a future decision. SG had communicated them to an Immigration Officer in response to a direct question and watched them be written down on the interview record.
22. The interview satisfies the three requirements of a human rights claim set out in Alighanbari at [70]. Whether enough detail was provided to ultimately succeed in such a claim is beside the point: MY at [50].
Procedural requirements
23. Section 50 of the Immigration, Asylum & Nationality Act 2006 relevantly provides as follows:
(1) Rules under section 3 of the Immigration Act 1971 (c. 77)—
(a) may require a specified procedure to be followed in making or pursuing an application or claim (whether or not under those rules or any other enactment),
(b) may, in particular, require the use of a specified form and the submission of specified information or documents,
(c) may make provision about the manner in which a fee is to be paid, and
(d) may make provision for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c).
(2) In respect of any application or claim in connection with immigration (whether or not under the rules referred to in subsection (1) or any other enactment) the Secretary of State—
(a) may require the use of a specified form,
(b) may require the submission of specified information or documents, and
(c) may direct the manner in which a fee is to be paid;
and the rules referred to in subsection (1) may provide for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c).
24. In R. (Shrestha) v SSHD [2018] EWCA Civ 2810 , Hickinbottom LJ observed:
5. The relevant rules made under that section are the Immigration Rules (HC 395) as amended from time-to-time ("the Rules"). Paragraph 34 of the Rules sets out the procedure for applications for leave to remain, so far as relevant to this application, as follows (emphasis added):
“An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.
(1) (a) ...[T]he application must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made.
(b) An application form is specified when it is posted on the visa and immigration pages of the gov.uk website.
(c) An application can be made on a previous version of a specified paper application form (and shall be treated as made on a specified form) as long as it is no more than 21 days out of date.
(2) All mandatory sections of the application form must be completed.
(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form...".
25. I note that changes have since been made to the wording of paragraph 34 of the Immigration Rules, but these are not material. Relevant to the present case, Hickinbottom LJ went on to record the following:
33. In this case, Mr Thomann accepts that the Secretary of State cannot remove the Applicant without considering his claim that to do so would breach article 8 of the ECHR. But, as he submits, the use of removal powers is a last resort. On the basis that the Applicant needs leave to remain and does not have it, he would be expected to leave the United Kingdom voluntarily. It is, of course, open to him to make an application for leave to remain on human rights grounds, in the required form and on payment of the required fee. If he considers that he has such a claim, that is the course required by the statutory scheme. If, in the meantime, the Secretary of State issues removal directions, then, at that stage, the Applicant will be able to rely on any human rights claim that he and/or his daughter have; and, reflecting the passage from Ahsan which I have quoted, subject to certification, he will be entitled to a right of appeal to the First-tier Tribunal to assess the merits of that claim whether or not a formal claim for leave to remain has been made because, otherwise, his removal would breach article 8. Therefore, the Applicant will suffer no possible unfairness or injustice as a result of the Secretary of State refusing to consider his human rights claim at this stage.
26. Shrestha was applied by the Court of Appeal in Balajigari v SSHD [2019] EWCA Civ 673, which in turn was applied by the Court of Appeal in MY (Pakistan). That authority was concerned with a formal immigration application that did not inherently include a human rights claim. Underhill LJ held at [42] that where such an application is made at the same time as a human rights claim, the Secretary of State was entitled to defer a decision on the latter. While there is no separate application in the present case (indeed I have not been referred to any authority on the present topic that concerns deportation) I accept MY (Pakistan) as authority for Mr Biggs’ overall proposition that the Secretary of State is under no obligation to consider a human rights claim unless it is made in accordance with the requirements prescribed by the Immigration Rules. Nonetheless, as made clear in Balajigari at [102], she retains a discretion to do so. If the Secretary of State did, as a matter of substance, go on to refuse the human rights claim then why she did so is immaterial. It is nonetheless appropriate to address the present issue.
The rules’ requirements
27. The parties’ pleadings concern whether the human rights claim meets the requirements of either paragraph GEN.1.9 of Appendix FM or para PL.1.3 of Appendix Private Life. Mr Biggs raised a pleading issue on the latter, which I rejected at the hearing; Appendix Private Life is squarely raised in SG’s Reply.
28. The rules use the term “valid application” as shorthand for an application where the specified form has been used, the correct fee paid, and so on. The present issue depends on whether the requirement to make a valid application applied in the present circumstances. Para GEN.1.9 of Appendix FM disapplies the requirement in a number of circumstances, the only one of potential relevance being:
(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:
[…]
(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention;
29. It is not argued that SG was in immigration detention at the relevant time, in the sense of being detained by the Secretary of State under the powers contained in the Immigration Acts; she was serving a sentence of imprisonment. Surprisingly, the equivalent provision in Appendix Private Life is differently drafted:
PL 1.3. If a private life claim is made under Article 8 of the Human Rights Convention and it is made:
[…]
(b) when the applicant is in detention (and the claim is submitted to a prison officer, custody officer or a member of Home Office staff at the place of detention); or
(c) during an appeal (subject to the consent of the Secretary of State where applicable), the requirements at PL 1.1. and at PL 1.2. (a) and (c) [concerning validity] will be waived.
30. Mr Toal argues that the omission of the word ‘immigration’ means that any form of detention will do. Mr Biggs argues that the word ‘immigration’ should be read in.
31. In Mahad v Entry Clearance Officer [2009] UKSC 16 at [10], Lord Brown held that the Immigration Rules:
…are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.
32. Ordinarily, the surrounding context to a rule is a valuable aid to interpretation. Here, the parties have been unable to refer me to any extraneous material that could shed light on why the word ‘immigration’ appears in GEN.1.9(a)(ii) but not in PL 1.3(b). Each argued that their respective interpretations represented the natural and ordinary meaning of the words. Mr Toal argued that the purpose of the exception is to recognise the difficulty in completing forms and paying fees faced by someone in any form of detention. Mr Biggs argued that relaxing such requirements logically arises in immigration detention because it must be for the purposes of removal, and this is when the Secretary of State is inclined to accept Article 8 submissions other than in an application; as set out in Balajigari and MY (Pakistan) this may be the final opportunity to do so before removal. In my view, both explanations make equal sense so offer no assistance in either direction.
33. In the absence of reason to think otherwise, the Secretary of State can be taken to mean what she says in these statements of administrative policy. Having been given no positive reason to ignore the word ‘immigration’ in GEN.1.9(a)(ii) or imply it into PL 1.3(b), I therefore decline to depart from the natural and ordinary meaning of the words actually used. The omission of the (later in time) wording used in Appendix PL was deliberate, as is the word being retained in Appendix FM. I hold that a serving prisoner is bound by the validity requirements in Appendix FM to use the correct form, pay a fee and so on, but not by those in Appendix Private Life. If that interpretation is unsatisfactory to the Secretary of State, it is a matter for her whether to amend the rules. Certainly the situation of serving prisoners, and perhaps those in other forms of detention, could usefully be clarified.
34. The consequence is that according to the rules, SG made a valid application under Appendix PL. The Secretary of State’s guidance provides that an outstanding human rights claim at the date of the stage 1 decision will be considered when making the stage 2 decision.
Part 13 of the Immigration Rules
35. Finally on this topic, I was not addressed on the effect of Part 13 of the Immigration Rules. It includes that:
Where deportation is being considered and the person has made a claim under Article 8 of the Human Rights Convention, that claim will be considered in line with the provisions under this Part.
36. Here, SG had made a human rights claim that her deportation would be contrary to Article 8 at the interview. This, it must be inferred, caused the stage 1 deportation decision to be taken less than 2 months later. This appears to provide another basis upon which the human rights claim was not subject to the validity requirements in Appendix FM or Appendix PL, but in the absence of argument and given my other conclusions I need not decide the point.
Was the Stage 2 decision of 21 February 2024 a refusal of a human rights claim from which there is a right of appeal to the FtT?
37. My primary conclusion is that that the stage 2 decision necessarily refused the validly made Appendix PL application and its accompanying human rights claim in accordance with MY (Pakistan), CA at [42] and [51]. The process already described, being the making of the claim in accordance with the rules and the Secretary of State’s guidance that such claims be decided at stage 2, rendered the stage 2 decision inherently a refusal of a human rights claim without the need for substantive engagement.
38. In the alternative, I agree with Mr Toal that the stage 2 decision did, in substance, engage with and refuse the human rights claim. The first and second paragraphs read:
We wrote to you on 04 December 2023 and notified you that section 32(5) of the UK Borders Act 2007 requires that a deportation order be made against you unless you can demonstrate that any of the specified exceptions set out in section 33 of that Act applied to you. It was not accepted that you fell within any of the exceptions to deportation at section 33. You did not respond to that decision.
Consideration has been given to all that is known about your circumstances and the decision to deport you pursuant to section 32(5) of the 2007 Act is hereby maintained.
39. Taking these paragraphs in turn, Exception 1 in section 33(2) applies where removal of a person in pursuance of the deportation order would breach their rights under the European Convention on Human Rights. The stage 1 decision confirmed that the Secretary of State would consider those exceptions and decide whether to make a deportation order. The stage 2 decision then gives consideration “to all that is known about [SG’s] circumstances”. This includes the detailed records on the Home Office files and the evidence they contain concerning SG’s length of residence in the UK. It also incorporates the stage 1 decision, which had been based on positive consideration of her immigration status and drew a conclusion that she has no valid leave. The only realistic way to understand the stage 2 decision is that the Secretary of State decided that despite SG’s claimed long residence, the lack of any leave to remain meant that deportation would not be contrary to her human rights.
40. There is nothing else in the stage 2 decision (or elsewhere) to support the alternative hypothesis that the Secretary of State had deferred consideration of the human rights claim to a later date, even if she was permitted to do so.
41. This consideration of “all that is known about [her] circumstances” must have included the contents of the recent interview, neatly recorded on the Home Office files. I need not go so far as saying that it must also have included the uncertainty over SG’s lawful leave in the UK that had been repeatedly recorded on the Home Office files as questioned by Home Office officials, but it is difficult to interpret “all that is known” in any other way.
42. The content of the human rights claim, and likely the other circumstances relating to private and family life above, were known to the Secretary of State when making the stage 2 decision, which confirmed on its face that they had been considered and the “decision to deport … hereby maintained”. The stage 2 decision was therefore a refusal of a human rights claim. The stage 2 decision was therefore wrong to state on its face that no right of appeal under section 82(1) of the 2002 Act lay to the FtT, and in turn the FtT was wrong to reach the same conclusion. The other consequence is that the decision did not comply with regulation 5 of the Immigration Notices Regulations 2003.
43. While I reach that decision only having regard to the circumstances known about SG listed above, there were other records of her family and private life claim recorded on the Home Office files. For example, an undated response by SG to a section 120 notice dated 10 November 2015 gave further details about her daughter, date of arrival in the UK and the support received in this country from her wider family. An internal Home Office email the following month commissions further enquiries into SG’s family circumstances and requests that the file be marked “so that it is clear we are dealing with the A8 claim”.
44. Relief depends on the Secretary of State’s argument that the outcome of the judicial review would be academic.
Was SG granted Indefinite Leave to Remain?
45. It is important to note that this issue arises for decision because the Secretary of State argues that the challenges to the stage 2 decision and the FtT’s decision are academic. A subsequent decision to refuse a human rights claim was made on 27 March 2025, the Secretary of State agrees that it carries a right of appeal to the FtT that suspends any removal action, and SG has exercised that right of appeal. The Secretary of State argues that all material matters can be decided in that appeal, and SG gains no material benefit from establishing that a right of appeal also attached to the earlier stage 2 decision.
46. The parties nonetheless agree that a positive outcome on the issue of ILR would establish a material benefit that justifies bringing the proceedings, and that they would not be academic. I endorse that shared position.
47. The factual background of this dispute can be introduced by the following extract from the witness statement of Marcus Northman, an official in the Home Office:
5. The Home Office’s records note that on 11 June 1992 [SG’s mother] applied to the Home Office for a grant of limited leave to remain. [SG’s mother] named [SG] as her dependant on that application. [SG’s mother] was granted limited leave to remain in 1993, valid for 12 months. Whilst I do not know the exact circumstance of the 11 June 1992 application, based on the Home Office’s records it appears that [SG] should have been added as a dependant on [her mother’s] application for limited leave to remain. If [SG] had been added as a dependant on [her mother’s] application, as a dependant it is anticipated that [SG] would have been granted leave for the same duration and under the same conditions in line with [her mother], the main applicant. It appears that due to an administrative error [SG] was not granted limited leave to remain in line with [her mother]. [SG was not granted any leave to remain.
6. The Home Office’s records note that [SG’s mother] applied to the Home Office for a grant of indefinite leave to remain. [SG’s mother] named [SG] as her dependant on that application. On 11 December 1993 [SG’s mother] was granted indefinite leave to remain. Whilst I do not know the exact circumstance of the indefinite leave to remain application based on the Home Office’s CID notes it appears that it was due to an administrative error that [SG] was not added as a dependant on [SG’s mother’s] application for indefinite leave to remain. [SG]’s immigration status in the UK was then noted as “unconfirmed”. If [SG] had been added as a dependant on [SG’s mother]’s application, as a dependant it is anticipated that [SG] would have been granted leave for the same duration and under the same conditions in line with [SG’s mother], the main applicant. It appears that due to an administrative error [SG] was not granted indefinite leave to remain in line with [SG’s mother]. [SG] was not granted indefinite leave to remain.
48. The Secretary of State continues to accept that SG was included on both applications, and that she ought to have been granted ILR in line with her mother. Mr Northman continues:
7. The Home Office’s records note that on 23 November 2001 [SG’s mother] made a no time limit application to get her passport endorsed with no time limit for herself and [SG]. The notes on the file point out that there is no mention of [SG] on the RON 60 letter [AB/106]. A RON 60 letter is a letter confirming the grant of indefinite leave to remain issued by the Home Office to a person who has lost their original document granting indefinite leave to remain. That is, an updating passport with the indefinite leave to remain stamp or grant letter. That application was subsequently withdrawn by [SG’s mother] on 18 December 2001 as she requested the return of her Jamaican passport back in order to travel on 19 December 2001 [AB/98] and the no time limit application was never determined.
49. Mr Northman’s references to notes on the file reflect that not all of the original documents themselves have been retained, and he therefore relies on file notes made by officials in the past.
50. The respondent argues that no form of leave was ever granted even though it should have been, and that this arose from administrative errors made at the time of both applications. SG argues that the correct conclusion to draw from the evidence is that she was granted ILR on 11 December 1993, and the administrative error was a failure to record that the grant had been made.
Has the grant of ILR been conceded?
51. I first address Mr Toal’s argument that the issue has been conceded in any event. The Secretary of State's new decision of 27 March 2025 contains the following:
105. It is accepted that you have been lawfully resident in the UK for most of your life. This is because you arrived in the UK in 1991 as a dependent child aged two or three years old. Your mother […] was granted indefinite leave to remain on 11 December 1993. Unfortunately, your immigration status was not documented alongside your mother’s immigration status. Due to the exceptional circumstance present in your case, discretion has been exercised in your favour. It is therefore accepted that you have been lawfully present in the United Kingdom most of your life.
52. This is put forward on behalf of SG as a concession that she was lawfully in the UK, which can only mean that she had ILR. I agree that this is one interpretation of the paragraph, but only if it is taken literally and shorn of its surrounding context. The Secretary of State was, in that part of the decision, engaged with the first limb of the Article 8 private life exception to deportation, as set out in the Immigration Rules at 13.2.3 and the 2002 Act at section 117C(4). Meeting the requirements of either the private or family life exceptions would not determine the question of deportation in SG’s favour; she was sentenced to over 4 years’ imprisonment so must establish ‘very compelling circumstances over and above’ those described in the exceptions. It is nonetheless common practice to first consider the private and family life exceptions, in order to inform the ’very compelling circumstances’ test.
53. Determining the circumstances relevant to the private life exceptions therefore formed part of determining whether deportation would be proportionate according to Article 8(1). It is well established that the public interest in enforcing a provision of the rules can be reduced by a historical failure by the Secretary of State to properly operate her immigration functions: see Ahmed (historical injustice explained) [2023] UKUT 165 at [30]-[33]. In Rhuppiah v SSHD [2018] UKSC 58, at [49], it was held that the application of the public interest factors in section 117B “cannot put decision-makers in a straitjacket which constrains them to determine claims under Article 8 inconsistently with the article itself”, and I see no principled basis for treating section 117C differently. This is supported, albeit in a different context, by the decision in Tirabi (Deportation: "lawfully resident": s.5(1)) [2018] UKUT 199 (IAC).
54. It is common ground that if SG was not granted ILR in line with her mother, then but for administrative error she would have been. When deciding Article 8(2) proportionality, it is therefore unsurprising that the Secretary of State treated SG as though she had been in the UK lawfully for most of her life. That approach is further consistent with the use of the phrase “[d]ue to the exceptional circumstance present in your case, discretion has been exercised in your favour” for what would otherwise be a question of law and fact rather than discretion.
55. The decision of 27 March 2025 cannot properly be taken as a concession that SG did in fact have leave while in the UK. Both parties agree that it therefore falls to this Tribunal to determine the issue.
56. It should be finally noted that the Secretary of State’s pleadings on this issue expressly argue that the administrative error cannot amount to a historical injustice. While I need not (and do not) address that proposition, no support for it should be inferred from my having found for the Secretary of State on the issue of concession. The reasoning in Ahmed at [33] arguably undermines rather than supports the Secretary of State’s claimed distinction between bad administration and wrongful administration, describing historical injustice as an “adjectival term”, and the key question as being “whether some earlier feature of the factual background is relevant to the proportionality balance arising under Article 8”. It is difficult to see why the present administrative error should be excluded as a matter of principle. The lawfulness of residence is often relevant to proportionality: see, for example, the normative guidance at section 117B(4)(a), the discrete requirement for lawfulness of residence in the private life exception at 117C(4)(a), and the discussion in Rhuppiah at [34]. In any event, the matter is for the First-tier Tribunal to decide in SG’s appeal.
Fact-finding: principles
57. In F v Surrey County Council [2023] EWHC 980 (Admin), Chamberlain J gave the following summary of the correct approach to fact-finding in judicial review, which I respectfully adopt:
50. In my judgment, the correct approach is as follows:
(a) If invited to resolve a dispute of primary fact, the court should consider carefully whether any pleaded ground of challenge really requires resolution of the dispute. In most cases, the answer will be that the resolution of the dispute was for the decision-maker, not the court: the court's supervisory function does not require it to step into the shoes of the decision-maker and therefore does not require it to resolve the issue for itself.
(b) Where the resolution of a dispute of primary fact is necessary, the court usually proceeds on written evidence: see e.g. Talpada, [2]. The court will generally do so if – as here – no application to cross-examine has been made before the start of the substantive hearing.
(c) There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it "cannot be correct" (Safeer, [16]-[19] and Singh, [16]). That might be so if it is contradicted by "undisputed objective evidence… that cannot sensibly be explained away": S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48].
(d) In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, "the court will proceed on the basis that the fact has not been proved": Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, the principle that the defendant's evidence is to be preferred, save where it "cannot be correct", arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant.
58. On the first issue, it is common ground that whether SG was granted leave is a question of primary fact that must be resolved in the proceedings, and I agree.
59. I reject Mr Biggs’ submission that disagreement with Mr Northman’s view on whether ILR was granted required an application that he be cross-examined. Mr Northman’s evidence on the present subject simply summarises the records that were consulted and the steps that the Home Office have undertaken, none of which is factually challenged. While the subjective view of the Secretary of State is of interpretive benefit, it cannot be determinative; the issue instead depends on ordinary fact finding principles and construction of the relevant documents.
60. I accept that the burden of proving that leave was granted does fall on SG in accordance with F at 50(d) above. Nonetheless, the opening words to that subparagraph should not be disregarded. They are consistent with the principle in other legal spheres that a court should resort to the burden of proof where it cannot otherwise make a decision on the contested issue: see, for example, Stephens v Cannon [2005] EWCA Civ 222 at [46]; Verlander v Devon Waste Management & Anor [2007] EWCA Civ 835 at [24]; and Re B (Children) [2008] UKHL 35 at [35]. Those authorities make clear that application of the principle is subject to the context of the matter in dispute.
61. As to exactly what must be found to have happened, pursuant to section 4(1) of the 1971 Act the power to grant leave is exercised “by notice in writing given to the person affected”. As held in SSHD v Ahmadi [2013] EWCA Civ 512 at [22], the “notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised.” The question to be resolved is therefore whether SG was given notice of a grant of leave, and an internal Home Office decision to grant leave that was never communicated would be insufficient. Mr Biggs sensibly accepted that notice to SG’s mother would be sufficient notice to SG.
62. Notice under section 4(1) can be given by way of a stamp or vignette in a passport, without a separate document being issued, as shown by the outcome of R. (Ram) v SSHD [1979] 1 WLR 148. Where there is doubt as to the effect of a status document, its meaning and effect must be construed without regard to any underlying mistake: Ram; R. (Kalobo) v SSHD [2006] EWHC 3513 at [92]. In R. (Hashmi) v SSHD [2002] EWCA Civ 728 a letter stating “the family may be granted indefinite leave to remain immediately” was sufficient notice of the grant of leave to the daughter and grand-daughter of an applicant despite them not being personally named. In R. (Ghazalgoo) v SSHD, 12 February 1988, unrep. (CA), a father was granted limited leave to enter at the border but the presence of his son, the appellant, who was on his father’s passport and accompanying him, was simply overlooked by the immigration officer. A stamp was placed in his father’s passport that made no mention of him. The issue was whether the son had indefinite leave. In deciding that he did not, Mann LJ stated:
The entry stamp on the father's passport was in terms in favour only of the holder. It may be that it could be construed as extending to accompanied persons travelling on the same passport. I express no considered view on whether it could, but if it did, I cannot understand how the grant of a month's leave to stay in favour of the father could ripen into an indefinite leave to enter in favour of the son. The most the son could obtain was a leave equivalent to that granted to the father.
63. This must, in context, cast doubt on the judgment of Nolan J at first instance who had held that the stamp could only grant leave to enter in favour of the father in whose passport it was placed. I therefore disagree with Mr Biggs that I should follow the judgement of Nolan J unless I find a powerful reason not to do so in accordance with the doctrine of precedent described in Willers v Joyce (No 2) [2016] UKSC 44 at [9]. A proper consideration of both judgments simply reinforces the fact-sensitive nature of the enquiry.
The factors in support of each party’s case
64. I should not be taken as disregarding any of the detailed evidence provided, nor the skilful submissions made, all of which I have taken into account. The following are what I consider to be most salient arguments in support of each party’s case.
65. Mr Biggs, relying on the evidence of Mr Northman and the chronology set out so far in this judgment, points out that all the relevant authorities concern construction of a particular document to determine whether it gave notice of a grant of leave. Here there is no document that could possibly amount to a grant of leave, and that is said to be an evidential insufficiency that SG cannot overcome. The application for limited leave made on 11 June 1992 and the application for ILR made the following year both included SG as a dependant, and leave should have been granted to her, but the Home Office has no record of any written notice doing so, nor any note that such a decision was taken. The administrative errors, therefore, were committed by the officials who decided each application failing to grant leave to SG along with her mother. It is therefore argued that the only finding open to the Tribunal on the evidence, and applying the balance of probabilities, is that SG was never granted either limited leave or, as really matters, ILR. This is reinforced by the lack of any evidence that has come to light since. While SG was able to access social assistance in the past, it is unclear how she did so and this has since been refused.
66. Mr Toal makes two arguments in response. First, it is more inherently probable that ILR was granted but that relevant records were either not properly kept or have since been lost or destroyed. The Secretary of State’s case requires that a dependant was included on a parent’s application but was completely missed. Indeed, that dependant was also named on the applicant parent’s passport. The Secretary of State’s case further requires such a fundamental error to have been committed twice in a row in relation to the same person, presumably by separate officials. Not only is this very unlikely, but no explanation has been provided of how such errors might come about, either in terms of these specific incidents or in relation to any known vulnerabilities in case-working systems that existed at the time. While there is no notice in writing granting either limited or indefinite leave to SG, nor is there any contemporaneous document in respect of SG’s mother save for the vignette in her passport, despite it being common ground that she was granted leave on both occasions. SG has consistently claimed, for many years, to have been on a family holiday to Jamaica in 2005. The Secretary of State has failed to engage with the obvious question as to why she was re-admitted. Those factors are put forward as making it more likely than not that SG was granted leave in line with her mother on both occasions, and the administrative error is either a failure to correctly record those grants in the relevant records, or that those records were subsequently lost or destroyed.
67. Second, Mr Toal argues that the vignette in SG’s mother’s passport, a copy of which is provided in the bundle, stands as the written notice of grant of leave to both of them. The vignette simply states “Given leave to remain in the United Kingdom for an Indefinite Period” without bearing any name, so can reasonably be construed as granting leave to both SG and her mother. SG was included on that passport as a child and was, in effect, one of the applicants for that document. The vignette can properly be taken as addressed to them both, the judgment of Mann LJ in Ghazalgoo (set out above) being no bar to such an outcome. Aside from that second, discrete argument, the application of an ILR vignette to a passport that included SG, in response to an application by both SG and her mother for ILR, further supports the likelihood of SG’s case set out in the above paragraph.
68. During Mr Biggs’ submissions on why the vignette should be taken as notice to SG’s mother only, I asked what one would expect to see if leave had been granted to SG as well (as, of course, the Secretary of State admits should have been done). Upon taking such instructions as time permitted, Mr Biggs was able to tentatively tell me that the same vignette would have been placed in the passport, but with a handwritten +1 next to it.
Consideration
69. I readily accept that the lack of either direct evidence or corroborative records is a formidable obstacle to SG establishing that leave was granted, and to do so will require the surrounding context to compel a different answer.
70. The issue is nonetheless finely balanced, and all the factors set out above in support of each party’s case carry force. Assigning them relative weight however, I conclude that this is a rare case where SG probably was granted ILR despite the absence of any record to that effect. An administrative failure by an official to grant leave to a deserving applicant must be something that occurs from time to time, which is to say that in isolation it is not particularly improbable. Yet the analysis at [66] above, which I adopt, shows the overall course of events demanded by acceptance of the Secretary of State’s case to be very unlikely indeed. No explanation has been forthcoming as to how the errors could have occurred by reference to SG in particular or Home Office decision-making overall, nor the prevalence of such errors at the time. I am therefore left to assess inherent probability by applying common sense and this Tribunal’s specialist experience and expertise. Doing so, I consider the more likely scenario to be that ILR was granted only for something to go wrong with the Home Office’s record keeping. This extends to retaining the notice by which leave was granted – if indeed any such notice would have been issued apart from the vignette in any event, which has not been made clear.
71. Insofar as is necessary, I further find that the vignette was an effective notice to SG under section 4(1) of the 1971 Act. While poorly copied in the hearing bundle, it is agreed that the vignette is materially identical to the following sample contained in the Home Office Guidance on examining identity documents:

72. The Secretary of State accepts that this would be sufficient to give notice of a grant of leave to SG’s mother, despite not mentioning her, because it was placed in her passport. Yet SG and her mother had both applied for ILR, and the response to that application was to place a vignette in the passport that they (in effect) both shared. It is notice to both of them in response to their application. In Hashmi, the reference to “the family” was taken to mean by implication the family members who were seeking leave. No one could have suggested that it would extend to all members of that family regardless of whether their existence had ever been raised before; as held at [18] “all that was needed … was to ally this document with the application itself”. This present notice issued under section 4(1) must likewise be approached together with the application to which it responds. Finally, I cannot accept that notice depended on a somewhat cryptic +1 being handwritten next to the vignette. It is the vignette without the +1 that falls to be interpreted.
73. In reaching the above conclusion I have drawn little assistance from the checks conducted with DWP, who would have always been dependent on Home Office records. It is unclear how SG initially accessed social assistance only to later be refused, and no reasonable inference can be drawn either way. The RON 60 letter mentioned in Mr Northman’s statement can likewise be readily explained by it coming after the record-keeping error in respect of SG arose. Nor has any copy been provided for the Tribunal to interpret the RON 60 letter for itself.
74. I therefore find that SG was granted ILR on or around 11 December 1993.
Was SG’s ILR invalidated by the making of the deportation order or does it continue?
75. The making of a deportation order will ordinarily invalidate any leave to enter or remain granted before it is made or while it is in force, pursuant to section 5(1) of the Immigration Act 1971. The present deportation order is in the following terms:
The Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) of the UK Borders Act 2007 (subject to section 33).
Therefore in pursuance of section 5(1) of the Immigration Act 1971, once any right of appeal that may be exercised from within the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 is exhausted, and said appeal is dismissed, or if [SG] does not have a right of appeal that may be exercised from within the United Kingdom, the Secretary of State, by this order, requires the said [SG] to leave and prohibits her from entering the United Kingdom so long as this order is in force.
76. That specification of when the deportation order shall take effect is pursuant to the power at section 34(1) of the 2007 Act. Due to the stage 2 decision’s failure to comply with the 2003 regulations, the time limit to appeal did not begin to run: R. (Chowdhury) v First-tier Tribunal [2024] EWCA Civ 1380. As I decide below that the FtT appeal must be accepted, the right of appeal mentioned on the face of the order is not yet exhausted. The deportation order has therefore not yet taken effect as invalidating SG’s leave. Her ILR therefore continues. The outcome of the proceedings is not academic.
77. In deference to the other arguments made, I should record that SG’s ILR would otherwise have been invalidated. Mr Toal relied on section 79(4) of the Nationality, Immigration & Asylum Act 2002, which prevents a deportation order invalidating leave “if and for so long as section 78” applies:
78 No removal while appeal pending
(1) While a person’s appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending—
(a) the giving of a direction for the appellant’s removal from the United Kingdom,
(b) the making of a deportation order in respect of the appellant (subject to section 79), or
(c) the taking of any other interim or preparatory action.
(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.
78. The definition of “pending” at section 104 is as follows:
104 Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while—
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
[…]
79. These provisions only have effect in relation to a deportation order made while an appeal is pending. Section 79(4) provides no such protection in relation to a deportation order made before the appeal is actually brought. It is unclear why this is so, but the language of the statute is clear.
Disposal
FtT Decision
80. In light of the conclusions reached above, I will grant permission and substantive relief in relation to the challenge to the decision of the FtT dated 28 October 2024, which shall be quashed. As already stated, there is no issue of timeliness. The only decision lawfully open to the FtT was to accept the appeal.
Stage 2 decision and deportation order
81. I first address delay. I do not repeat the entire chronology, but the present application was made over 8 months late. This delay is plainly very serious. Nor do I entirely accept that the events set out in SG’s representative Mr Shelley’s witness statement provide a good reason, as the grounds to make the application could have been ascertained previously. Considering all the circumstances, including those raised by counsel, I nonetheless grant the necessary extension of time due to it having been in the interests of justice for the two decisions to be considered alongside that of the FtT. The grounds are arguable so permission is granted.
82. There is, nonetheless, no remaining basis upon which any relief should be granted in relation to these decisions. Ground 1 falls away as a result of the conclusion that there was a refusal of a human rights claim. In relation to Ground 2, the appeal to the FtT is a suitable alternative remedy that SG has chosen to exercise. Subject to any case management by the FtT in relation to the second appeal proceedings, that appeal can now proceed.
83. I invite counsel to agree a suitable form of order.
~~~~0~~~~