JR-2025-LON-001050
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JR-2025-LON-001050
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Peter Khuwailid Kukui
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Jackson
HAVING considered all documents lodged and having heard Mr C Ijezie, Solicitor-Advocate at EcoM solicitors, for the Applicant and Mr J Anderson of Counsel, instructed by GLD, for the Respondent at a hearing on 20 January 2026.
AND HAVING heard Mr C Ijezie, Solicitor-Advocate at EcoM solicitors, for the Applicant and Mr R Hopkin of Counsel, instructed by GLD, for the Respondent at the hand down hearing on 27 April 2026.
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The Order of Mr Justice Butcher dated 5 April 2025 prohibiting the Respondent from removing the Applicant from the United Kingdom is hereby discharged.
(3) The Applicant to pay 50% of the Respondent’s reasonable costs of defending this application for judicial review, to be assessed if not agreed.
(4) Permission to appeal is refused for the reasons in the attached judgment.
Signed: G Jackson
Upper Tribunal Judge Jackson
Dated: 27 April 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 30/04/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2025-LON-001050
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
27 April 2026
Before:
UPPER TRIBUNAL JUDGE JACKSON
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Between:
THE KING
on the application of
PETER KHUWAILID KAKUI
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr C Ijezie, Solicitor-Advocate
(instructed by EcoM Solicitors), for the Applicant
Mr J Anderson of Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing date: 20 January 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Jackson:
1. In this application for Judicial Review, the Applicant challenges the Respondent’s (i) decision to refuse the Applicant entry to the United Kingdom dated 4 April 2025; (ii) decision to remove the Applicant from the United Kingdom dated 5 April 2025; (iii) removal of the Applicant on 5 April 2025.
2. The central issue in this application is whether the Applicant held valid Indefinite Leave to Enter (“ILE”) by means of a vignette affixed in his passport, or whether this had been issued in error following a decision to refuse his application for the same. The Applicant was granted permission to apply for Judicial Review on five out of the six grounds originally pleaded (permission having been refused on ground 3) which in various ways relate to this central issue; the Respondent’s actions and decisions which surrounded it and which have to be viewed in light of that central issue.
3. Shortly prior to the hearing, the Respondent served further evidence which was in part said to be disclosure, in part an omission of documents previously that were referred to in the Detailed Grounds of Defence (but not filed and served with that document) and in part a further written statement which corrected one already filed. Whilst this was opposed in principle by the Applicant on the basis that there was no good reason for its lateness and it could give rise to unfairness, Mr Ijezie accepted that he was able to deal with the material and respond to it in oral submissions as needed. In these circumstances and where the claim involved some degree of factual dispute about the status of decision-making, the additional documents were admitted such that this application could be decided on the best available and most accurate information.
Factual Background
4. The Applicant is a national of Kenya, born on 14 November 2006, who applied on 5 November 2024 for ILE the United Kingdom to join his uncle, Mr Alexander Katua Kakui (who is present and settled in the United Kingdom) pursuant to paragraph 297(i)(f) of the Immigration Rules. The history of what followed in terms of the Respondent’s decision-making is in dispute and I return to the detail of the internal records below. So far as the Applicant was aware from communication at the time, the application was refused on 27 January 2025 and subsequent to service of that decision, he lodged an appeal against it to the First-tier Tribunal (HU/52750/2025)1.
5. On 1 April 2025, the Applicant was informed by VFS Global that his passport was ready for collection and when he collected it on 3 April 2025, it was found to contain a vignette valid from 8 January 2025 to 18 September 20322 of type D “Settlement to join/acc relative AK Kakui” with “indefinite leave to enter the UK” typed in the observations section.
6. The Applicant travelled to the United Kingdom on 4 April 2025 and on arrival at Heathrow Airport, his permission to enter was suspended. He was detained and served with removal directions on 5 April 2025, for removal to Kenya on that date, on the basis that he did not hold valid leave to enter the United Kingdom. The Applicant sought and obtained an injunction against his removal from the High Court, but by the time notice was received of this by the Respondent the plane had already pushed back and the Applicant remained on the flight.
7. The Applicant arrived at the airport in Nairobi, Kenya, around 4am local time on 6 April 2025. His passport was withheld by Kenya Airlines until he paid the cost of his flight for the enforced removal back to Kenya, despite removal costs being a liability for the airline pursuant to their obligations under the Immigration Act 1971. The Respondent had agreed to return the Applicant to the United Kingdom, but the first flight opportunity to do so was missed as the Applicant’s passport was withheld by the airline (released only after the Applicant’s uncle paid for the flight from Heathrow to Nairobi).
8. The Applicant was returned to the United Kingdom, arriving on 7 April 2025, following which he was released on bail on 8 April 2025 and has remained in the United Kingdom to date.
Detailed chronology
9. The following chronology is taken from the documents available to the Upper Tribunal as at the date of hearing, with reference to the source of the documents where appropriate and using UK time unless otherwise stated. Not all correspondence is set out in full, or at all in the following chronology, only the key parts relevant to determination of this claim.
5 November 2024 Application for ILE made, further to which payment was made on 19 November 2024 for the application, with biometric enrolment and checks completed on the same date. The application was then acknowledged on 22 November 2024 and further checks on travel documents and PNC were undertaken the following day, as was a request for a TB certificate. All documented on the CRS record.
8 January 2025 In the first entry of this date, at 13:01:12, ‘pknowles’ (the ECO) added an entry type ‘Issue of Visa (Revoked)’ which in the notes section stated:
“Details of enrichment activity were material in decision to issue visa Details of interview were not material in decision to issue visa Applied under 297 of the Immigration rules Sponsor: Alexander Katua Katui 3/5/1981 – GBR ppt seen and noted Rose Adhiambo Mugenya Katua Ops mandate checks conducted and in date LAL: No Suitability: MET No adverse UK immigration history or criminal record noted Suitability met Application was paid for on 5/11/2024 making the applicant 17 at the time of application Relationship: St John Tala High School fee invoices for 2021-2022-2024. Birth cert seen for applicant born 14/11/2006 registered 22/12/2015 9 yrs after birth HO search for mother and father on birth cert no results found Death cert for apps mother – died 31/7/2016 – registered 3/11/2016 Photos of app and sponsor tougher Republic of Kenya Children’s court consent order states Alexander Katua Kakui appointed as a legal guardian of minor Peter khuwalid Kakui on 27/06/2022 Money transfter slips seen sent to applicants grandmother with whom they live, grandmothers name seen on birth cert for sponsor and apps mother – satisfied related by way of apps birth cert, apps mothers birth cert and sponsors birth cert showing mother and apps grandmother to be the same Money transfer slips to apps grandmother in support of apps schooling and upkeep Previous visit to the UK to stay with sponsor Applicants previous visa visit states he was living with his grandparents in 2022 despite the above court order I am satisfied the requirements of 297 are met Maintenance: MET NHS wage slops seen in the name of Rose Katua shows basic pay of … Bank statements and wage slips seen and noted in support of this Sponsors partner is employed by the NHS and band statements shows council tax payments out Sponsor has 2 children as listed in application and previous vaf 142.25 […] for app spx and all children/partners required min per week […financial calculations set out …] Met Accommodation: MET Land registry seen and noted No mortgage TB certificate: MET TB cert seen expiry date 6/7/2024.
In the second entry of the same date, at 13:01:52, ‘pknowles’ (the ECO) states as type ‘Refer – ECM’ and in the notes section states ‘297 issue to ECM review’. All documented on the CRS record.
15 January 2025 CRS entry raised by ‘nair_CIsiah’, type ‘EICW Vignette Printed’, notes state ‘Print Post: NAIR’.
25 January 2025 Two entries on the CRS record raised by ‘dclaxton’ (ECM) show initial ECM review – overturn balance of probabilities (with notes relating to Applicant’s father’s whereabouts) and a type ‘Revoke Decision’.
27 January 2025 Multiple CRS entries on this date raised by ‘mwragg’ (ECO) show further checks undertaken and type ‘Local Refusal (Revoked)’, with a right of appeal; then revoked as refused in error and discussed with ECM; followed by a local refusal and right of appeal.
27 January 2025 Respondent’s refusal of entry clearance application on the basis that the Applicant did not meet the requirements of paragraph 297(1)(f) of the Immigration Rules (none of the other parts of 297(1) applying). The Respondent noted that the Applicant’s birth certificate named his father but there was no further reference to him, no information as to contact with him and that the letter of support stated that the Applicant would benefit from the family setting in the United Kingdom as he was currently living with aged and retired grandparents.; but the Respondent noted there was no evidence of the Applicant living with grandparents or that they were unable to care for him. The Respondent was not satisfied that there were serious and compelling family circumstances which would make the Applicant’s exclusion from the United Kingdom undesirable.
28 January 2025 Refusal decision dispatched to the Applicant.
21 February 2025 Applicant lodged an appeal to the First-tier Tribunal against the Respondent’s refusal. The first directions in relation to the appeal were issued on 14 May 2025.
1 April 2025 Email from VFS UK Kenya notifying the Applicant that his passport was ready for collection.
4 April 2025:
4pm Applicant arrives at Heathrow Airport
5:15pm Respondent’s notice to the Applicant that (i) he was liable to be detained under paragraph 16(1A) of Schedule 2 of the Immigration Act 1971 pending completion of his examination and pending a decision on whether to cancel permission to enter; (ii) his permission to enter/remain under paragraph 2A(7) of Schedule 2 to the Immigration Act 1971 was suspended; and (iii) his passport, identity card or travel document had been retained.
5 April 2025:
00:24am Respondent’s email requesting letter of authorisation from the solicitors before information is released. A letter of authority was returned, but not signed by the Applicant (completed by his uncle and therefore not valid).
00:55am Respondent’s email stating that the Applicant does not have any knowledge of requesting a representative to act on his behalf.
1:06am Email from the Applicant’s solicitors that the Applicant must be very anxious and of course he knew that they were his solicitors. A request was made for him to speak to his uncle.
1:46am Email from Respondent stating that the Applicant was asked about any representative and stated that he has no knowledge of anyone acting on behalf of him on this matter. The Applicant had not spoken to his uncle but is fully aware that he can make a phone call if he wishes to.
1:58am Email from Applicant’s solicitors requesting the Applicant be provided with a phone to call his uncle.
2:29am Email from Respondent confirming that the Applicant can not keep his personal phone, but has been told that he can make a phone call if he wants to.
2:57am Email from the Applicant’s solicitors noting the Applicant’s uncle has been waiting for the Applicant since 4pm the day before and unable to communicate with the Applicant. It is stated that the Applicant is obviously in shock, his uncle is worried about his mental health and a doctor is requested to check this. Further, that the Applicant knew solicitors made the entry clearance application for him so it is not normal for him to say he is unaware of anyone acting.
3:24am Email from the Respondent stating:
“We have checked on Mr Kakui at 3am, he was sleeping and no issues were reported to us. We were further advised by the holding facility that Mr Kakui has spoken to his uncle, and he is fully aware that he has access to a phone.
We will ask him again if he wishes for you to act on his behalf which is all we can reasonably do.”
3:38am Email from the Respondent stating:
“We have just spoken to Mr Kakui, he told us that he has spoken to his uncle, he confirmed that he has his uncle’s number and that his uncle also has the number of the holding facility. He also confirmed that he knows that he can use the phone whenever he wishes.
We asked him if he has sought to have a solicitor acting on his behalf and he told us no. if this is not accurate, we suggest you speak to his uncle. We can only take what is said by the passenger.”
7:08am Email from the Applicant’s solicitors requesting a doctor to check on the Applicant’s mental health and to provide him with a phone to contact his uncle (number given).
7:59am Email from the Respondent to the Applicant’s solicitors which stated:
“As per our previous correspondence, we have spoken to Mr Kakui, he told us that he has spoken to his uncle, he confirmed that he has his uncle’s number and that his uncle also has the number of the holding facility. He also confirmed that he knows that he can use the phone whenever he wishes. We can also confirm that Mr Kakui is currently asleep following a holding room check at 7:30am.
We asked him if has sought to have a solicitor acting on his behalf and he told us no. We have received no signed letter of authority to confirm that you are acting on behalf of Mr Kakui so actions that we undertake will be limited on your behalf.
We have also witnessed no sufficient cause for concern that would warrant a port medical inspector to undertake a mental health assessment for Mr Kakui and will not be undertaking this at your behest, again without a signed letter of authority actions that you request will be dealt with at a limited capacity.”
9:03am Email from the Applicant’s solicitors stating that last contact between the Applicant and his uncle was at 8pm the night before, prior to the Applicant’s phone being confiscated. There is a request for examination by a healthcare professional and details about solicitors being on record for the Applicant.
10:13am Respondent’s email to the Applicant’s solicitors that the letter of authority from his uncle dated in October 2024 was null and void as the Applicant is now an adult and his uncle’s legal guardianship ceased on 14 November 2024. A blank letter of authority had been provided to the Applicant and a completed version was required to communicate with the solicitors. The email also included:
“The letter that you provided regarding Visa collection, we are aware that the visa was revoked and that the revoked notification was served on Mr Kakui’s Uncle, Mr Alexander Kakui, hence the decision appeal that was lodged by yourselves on 28 February 2025.
…
Regarding the health of Mr Kakui whilst detained at port, you have stated he requires a mental health assessment in a previous email. To reiterate, we have not viewed or experience any concerns that warrant a mental health assessment whilst he has been detained at port. You have now stated that him sleeping until 7:30am warrants a medical professional to examine him. Given that Mr Kakui was spoken with at 01:50am following your communications overnight, it would be reasonable that he may still be asleep 5 hours 30 minutes later on.
To confirm, we have spoken with Mr Peter Kakui here this morning and he is aware that he has his uncles contact details, has access to a phone that he can use and we have provided contact details for the holding room to Mr Kakui’s uncle and our holding room have confirmed that Mr Kakui’s uncle has not contacted them to speak with Mr Kakui.”
12:03pm Signed letter of authority by the Applicant provided by his solicitors to the Respondent. There followed correspondence in relation to Mr Ijezie’s registration and place of work as a solicitor as he was not publicly recorded as working for EcoM solicitors.
… Respondent’s notice of removal under section 10 of the Immigration and Asylum Act 1999 for removal at 6:25pm to Nairobi on 5 April 2025.
1:56pm Email from the Respondent stating that the Applicant is not suitable for immigration bail and removal directions will remain in place. The message stated: “Your client has no grounds for entry to the United Kingdom as does not hold a valid visa or entry clearance for his stated reason for entry.”. The same information was repeated in a further email at 2:13pm.
… Injunction granted for a stay on removal of the Applicant.
… Applicant removed on flight from Heathrow to Nairobi. Exact time unknown, but somewhere around 6:30pm.
6 April 2025:
2am Applicant arrives at Jomo Kenyatta International Airport, Nairobi, Kenya.
9:01am Respondent’s email confirming the Applicant will be brought back to the United Kingdom and request for his solicitors to liaise with him to find a suitable date and time for the flight.
1:03pm Email from the Respondent with flight itinerary for the Applicant’s return to the United Kingdom.
2:35pm Email from the Applicant’s solicitors stating that Kenyan Airways is refusing to release the Applicant’s passport until he pays them $800 enforced return flight ticket. There followed various correspondence about payment links for the same.
8:01pm Respondent communicated that they would not pay the flight cost for the Applicant’s return to Kenya.
8:29pm Respondent forwarded the request for payment of the flight cost by Kenya Airlines to the Applicant’s uncle who paid the sum requested.
9:10pm Applicant missed the flight departing Nairobi at this time which the Respondent had booked him on to due to issues with the flight cost and return of his passport which had not been resolved in time.
9:30pm Applicant’s solicitors’ email to the Respondent confirming that the Applicant’s uncle paid for the flight from Heathrow to Nairobi but his passport was not released in time to catch the flight. It was said that “The 18 year boy is crying and devastated. He has not had bathe or shower.” and a request was made for the 9:05am flight the next morning to be booked.
10:01pm Respondent’s email to the Applicant’s solicitors, which included:
“Thank you for helping us with the arrangements for bringing your client back to the UK. We have been working through the afternoon and evening to persuade Kenya Airways to return the passport, but unfortunately, they will not budge. There is no lawful basis for Kenya Airways to hold hostage to a passport, which ultimately belongs to the Kenyan government. Border Force, as a matter of principle, considers that removal costs are a liability for the airline in accordance with their obligations under the Immigration Act 1971. With advice from seniors, we will not be paying this “bill”. Unfortunately, this means for the moment the arrangements we put in place this evening have fallen through. I am afraid you will need to advise your client that the flight tonight cannot go ahead.
Our intention is to pick this up tomorrow when Home Office teams in Kenya will be available. We will keep you informed of progress. …”
7 April 2025
9:01am Email from the Respondent confirming that a booking will not be made for the Applicant for that morning’s flight to Heathrow: “This is because Mr Kakui’s visa is currently not valid, and the necessary visa waivers are not yet in place with the airline and will not be in time to ensure a trouble-free check-in/departure – which could result in Mr Kakui being denied boarding.” Various emails followed from the Applicant’s solicitors chasing flight booking details.
7:45pm Email from the Respondent containing details of the return flight to Heathrow; which the Applicant took and returned to the United Kingdom.
8 April 2025 Applicant granted bail on the basis that he is “liable to be detained pending examination because you are a person required to submit to examination/pending a decision to give, refuse or cancel leave to enter”. The conditions were for the Applicant to report on 22 April 2025 and that he was not permitted to work.
The Respondent’s written statements
10. In a written statement signed and dated 6 October 2025, Ian Blackwell, an Entry Clearance Manager (“ECM”) since October 2022 employed by the Respondent in Sheffield, sets out an explanation as to how the Applicant received his passport endorsed with a vignette with ILE despite the refusal of his application for the same on 27 January 2025. The statement is based on a review of the Respondent’s documentation and information from colleagues. Mr Blackwell was not the decision maker in this particular case.
11. The decision- making process for an application for ILE was set out as follows. First, the application is allocated to an Entry Clearance Officer (“ECO”), who makes a decision after biometric and criminality checks are completed. The decision is then referred to an ECM who reviews it and either upholds the decision or revokes it. All applications under paragraph 297 of the Immigration Rules are subject to mandatory review by an ECM. The term ‘revoked’ is not a legal term indicating a withdrawal of a final decision, but language used on the Respondent’s IT system, Proviso. If a decision is upheld, the application will be despatched.
12. If a decision is revoked, the ECM will email the ECO confirming the rationale for the revocation and there is an expectation that the application will be reconsidered within 24 hours, normally by the same ECO but if unavailable, by the duty ECO. The new decision will again be sent to the ECM to review. This is all part of the internal decision-making process and an applicant is only informed once a final decision has been made.
13. In the present case, the ECO assessed the Applicant’s application and determined it should be issued on the basis that the requirements of the Immigration Rules were met. The application was issued on 8 January 2025 and sent to an ECM for review on the same day. Despite this, the Proviso system dispatched the decision on 15 January 2025, which should not happen when an application is set to ECM review, which it was here. The Proviso system should only automatically dispatch decisions that have been made after ECM review clearance.
14. Mr Blackwell identified that there have been technical errors before with decisions dispatched despite the application being set to ECM review. He estimated errors to have happened on fewer than 10 occasions for applications under paragraph 297 of the Immigration Rules and his experience of this happening has not affected an application as the other decisions were all upheld on review. Mr Blackwell emphasised that this is an automatic, not a manual process. The system developers deployed a fix to the IT system on 25 September 2025 which should remove or reduce the frequency of such technical errors.
15. After Proviso had dispatched the system, the Visa Application Centre (“VAC”) in Nairobi was notified, printed the vignette and attached it to the Applicant’s passport. The Respondent’s team in Sheffield was unaware of this so could not contact the centre to spoil the vignette – if they were aware, it would have been spoiled by writing on it.
16. On 25 January 2025, the ECM reviewed the decision of 8 January 2025 and revoked it. As an internal decision, this would not have been communicated to the Applicant. Mr Blackwell thought it likely that the Applicant would have received notification the application had been issued around 15 January, but copies of notification letters are not retained on the system and are no longer available for this Applicant.
17. The ECO reconsidering the application refused it on 27 January 2025, which was sent to the Applicant the following day. In this case, it was a different ECO to the person who considered the application first, presumably because the original ECO was not available.
18. The VAC would also receive a copy of the refusal letter and Mr Blackwell could not explain why they did not contact the Respondent’s team in Sheffield to query why a vignette had been printed and a refusal issued. Any email correspondence that may have passed between the teams at this time is not recoverable due to a system change in April 2025.
19. If the Respondent is aware an application has been issued in error, the caseworking team would normally email them. Any errors are normally picked up at review stage but can be from elsewhere. If an email is needed, it will inform the applicant that they need to return their passport to the VAC; that the vignette is not valid for travel and they should not attempt to travel. No such email was sent to the Applicant in the present case, which Mr Blackwell describes as a casework/process error.
20. In a second written statement signed and dated 16 January 2026, Mr Blackwell responds to points made by the Applicant following his first statement and corrects information from his previous statement. As to the latter, further information had become available from technical advisors at ‘Cross Cutting Service Operations, Visa, Status and Information Services’. Mr Blackwell was unaware of the error previously made at the time and apologised for it.
21. Mr Blackwell clarified that the decision-making process for applications under paragraph 297 of the Immigration Rules was set out within an internal Home Office document named 2OPI 704: Updating our UKVI International approach to Review to Risk’ which refers to the ‘Review to Risk Matrix’ (a copy of both were provided). The latter stated that a full review was required for all settlement applications resulting in the issue of ILE.
22. The statement was accompanied by a copy of the Applicant’s record from the Respondent’s CRS system, which recorded the decision-making process, although the emails referred to therein are no longer available due to system changes. The records show the Applicant’s application was processed using the Proviso system. Upon further enquiries as to how that system operates at a technical level, Mr Blackwell was informed that the system does not automate notifications of an event to a VAC but that this is a manual manifest process to notify a VAC that a decision has been made and a vignette should be printed. This is done by administrative staff interrogating the Proviso system to identify such cases and then sending the necessary details to the relevant VAC, who then uses this information to produce vignettes via the Electronic Immigration Case Working system.
23. Mr Blackwell corrected his earlier statement that in fact no issue notification was sent to the Applicant and Proviso does not notify the VAC that an application can be printed. The VAC in Nairobi do not hold any information about the Applicant’s case as it is outside of their data retention policy. On investigation as to how the vignette was printed in this case, Mr Blackwell confirmed that the Applicant’s case was not manifested to the Nairobi VAC to printing by the operational team responsible for producing vignette print lists and it is unknown how or why it was printed in the absence of any further records from the VAC itself.
24. Mr Christopher Stump, a Border Force Officer at London Heathrow Terminal 4, who has been employed as such by the Respondent since November 2023, made a written statement dated 7 October 2025. Mr Stump was on duty and responsible for the Applicant’s case from 10pm on 4 April 2025. At that time, Mr Stump reviewed the Respondent’s records and determined that the Applicant had a settlement visa decision on 8 January 2025 but which remained subject to ECM review until it was revoked on 25 January 2025 (revoked being the term used on the IT system rather than a legal term) and the application subsequently refused on 27 January 2025. The Applicant confirmed the refusal letter had been received.
25. Mr Stump states that at 10:50pm on 4 April 2025, he prepared an IS82 refusal notice, which was countersigned shortly thereafter by a Higher Executive Officer. The reason for refusal was that the Applicant’s settlement visa had been revoked and although he had a pending appeal, the visa was invalid pending the outcome of that appeal. As such, the Applicant was a visa national without a valid visa for entry and was therefore subject to a mandatory refusal under paragraph 9.14.1 of the Immigration Rules. Mr Stump then sets out the process followed for setting removal directions and service of an updated IS82.
26. In accordance with section 8(1) of the Immigration Act 1971 and Schedule 2, the cost of removing a passenger without valid entry clearance falls to the carrier, so at the airline’s expense and is known as a Carrier Expense Removal. The airline is liable for the cost of detention and removal of a refused passenger to his original point of departure. There is nothing in the legislation to allow an airline to recoup the cost of a return flight from the Respondent or the passenger; although Mr Stump is aware of reports on occasion of airlines demanding reimbursement from a passenger.
Legal framework
27. The primary provision in relation to giving or refusing leave to enter is set out in section 4 of the Immigration Act 1971, so far as relevant, as follows:
4 Administration of control.
(1) 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), shall be exercised by the Secretary of State; and unless otherwise allowed by or under 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.
(2) The provisions of Schedule 2 to this Act shall have effect with respect to –
(a) the appointment and powers of immigration officers and medical inspectors for the purposes of this Act;
(b) the examination of persons arriving in or leave the United Kingdom by ship or aircraft …; and
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or remaining unlawfully; and
(d) the detention of persons pending examination or pending removal from the United Kingdom;
and for other purposes supplementary to the foregoing provisions of this Act.
…
28. As referred to above, there are additional provisions in Schedule 2 to the Immigration Act 1971 as to the exercise of those functions, which so far as relevant provide:
1(3) In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State, …
…
2(1) An immigration officer may examine any persons within subparagraph (1A) arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining –
(a) whether any of them is or is not a British citizen; and
(b) whether, if he is not, he may or may not enter the United Kingdom without leave; and
(c) whether, if he may not –
(i) he has been given leave which is still in force,
(ii) he should be given leave and for what period or on what conditions (if any), or
(iii) he should be refused leave; and
(d) whether, if he has been given leave which is still in force, his leave should be curtailed.
…
2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.
(2) He may be examined by an immigration officer for the purpose of establishing –
(a) whether there has been such a change in circumstances of his case, since that leave was given, that it should be cancelled;
(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or
(c) whether there are medical grounds on which that leave should be cancelled.
…
(7) An immigration officer examining a person under this paragraph may by notice suspend his leave to enter until the examination is completed.
29. The effect of entry clearance on leave to enter and the requirements for notice of a decision to be given to a person about a decision is contained in the Immigration (Leave to Enter and Remain) Order 2000, which so far as relevant provides:
2. Subject to article 6(3), an entry clearance which complies with the requirements of article 3 shall have effect as leave to enter the United Kingdom to the extent specified in article 4, but subject to the conditions referred to in article 5.
3.- (1) Subject to paragraph (4), an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or
(b) a statement that it is to have effect as indefinite leave to enter the United Kingdom.
…
4. (1) …
(2) …
(3) In the case of any form of entry clearance to which this paragraph applies, it shall have effect as leave to enter the United Kingdom on one occasion during its period of validity; and, on arrival in the United Kingdom, the holder shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom:
(a) in the case of an entry clearance which is endorsed with a statement that it is to have effect has indefinite leave to enter the United Kingdom, for an indefinite period; or
…
7.- (1) An immigration officer, whether or not in the United Kingdom, may give or refuse a person leave to enter the United Kingdom at any time before his departure for, or in the course of his journey to, the United Kingdom.
…
8ZA.- (1) A notice in writing –
(a) giving leave to enter or remain in the United Kingdom;
(b) refusing leave to enter or remain in the United Kingdom;
(c) refusing to vary a person’s leave to enter or remain in the United Kingdom; or
(d) varying a persons’ leave to enter or remain in the United Kingdom,
may be given to the person affected as required by section 4(1) of the Act as follows.
(2) The notice may be –
(a) given by hand;
(b) sent by fax;
(c) sent by postal service to a postal address provided for correspondence by the person or the person’s representative,
(d) sent electronically to an e-mail address provided for correspondence by the person or the person’s representative;
(e) sent by document exchange number or address; or
(f) sent by courier.
…
30. The Immigration (Leave to Enter and Remain) Order 2000 and Immigration (Notices) Regulations 2003 also sets out requirements for notice of appeal rights, the provisions of which are not necessary to set out in full.
31. The parties in the present case agree that there is no authority directly on point for the particular factual circumstances raised herein, namely that there are two different communications to an applicant with opposite results, one or other of which needs to be identified as the operative decision. The parties both refer to the cases of YC and Ram. Since the hearing, the Court of Appeal handed down its decision in R (on the application of YC) v Secretary of State for the Home Department [2026] EWCA Civ 285, to which I will refer rather than the decision of the Upper Tribunal (albeit that was upheld).
32. In outline, the background facts in YC are that he was in the United Kingdom unlawfully and sought to regularise his status here. The Respondent accepted that he was entitled to a grant of leave to remain on private and family life grounds, which would normally give rise to a period of leave of 30 months. However, when the decision was issued, it referred to the applicant being granted Indefinite Leave to Remain. The biometric residence permit which followed was for a period of leave of 30 months only and was therefore questioned by the applicant. The Respondent then retrospectively re-issued the decision around six weeks later referring to a grant of leave to remain for a limited period, which was then subject to an application for Judicial Review. There was no dispute in this case that the initial reference to Indefinite Leave to Remain was an administrative or clerical error and that the applicant had neither applied for, nor qualified for a grant of Indefinite Leave to Remain. Further, the applicant had not acted on nor relied on the initial letter in any particular way. The primary issue in that application was whether the Respondent had the power to correct the administrative error made in the original decision. The Court of Appeal found as follows:
62. Evident caution must obviously be exercised before recognising an implied power vested in a Minister of State in the discharge of their statutory functions. However, subject to the important limitations which I have discussed at §§78-79 below, I am satisfied that the UT did not err in concluding that the SSHD did indeed possess an implied power under the IA 1971 to withdraw the grant of ILR communicated in the First Letter, that grant having been made as a result of administrative mistake. My reasons may be summarised under five headings as follows:
i) The grant of ILR by the First Letter on 13 November 2023 was a manifest error. That error should reasonably have been immediately apparent to YC and his advisers, given that he had neither applied for ILR nor met the requirements of the Immigration Rules;
ii) The SSHD has a well-established implied power, frequently exercised, to withdraw immigration decisions adverse to an applicant. The position in relation to immigration decisions favourable to an applicant has been addressed in legislation (i.e., section 76 NIAA 2002 and Article 8AZ(2)(d) of the Immigration Order 2000). There is obviously no complete equivalence between the withdrawal of the two types of decision (i.e., adverse or favourable), particularly insofar as it affects status of the recipient and/or third parties; however, I see no reason in principle why any distinction should be drawn about the existence of the implied power. I would simply add that, in order to withstand challenge, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon;
iii) There is a clear public interest in ensuring that leave under the IA 1971 is granted (unless explicitly granted using powers outside of the Rules) only where the statutory and rules-based criteria are satisfied.
iv) The absence of express statutory provision for such a power does not preclude its existence; the power is incidental to, rather than an extension of, the statutory scheme;
v) Subject to the safeguards discussed below, common sense should prevail: an obvious administrative error should not be perpetuated merely because it was favourable to the recipient.
I take these points in turn.
63. (i) Obvious mistake. The circumstances in which any implied power may properly be invoked to supplement a statutory scheme are necessarily narrow. In this context, I suggest that the implied power to withdraw a favourable determination communicated as a result of a clerical error may be exercised only where the mistake is obvious, and its correction undertaken promptly. In the present case, it is clear that YC could not reasonably have expected to receive a grant of ILR, a status for which he had neither applied nor satisfied the requirements of the Immigration Rules. Grants of ILR outside the Rules are exceptionally rare. In that regard the mistake was obvious; the correction was effected straightaway.
64. As the UT rightly observed (judgment [49]/[51], see above) this was not a case in which the decision-maker mistakenly believed that YC was entitled to ILR and then discovered that he was not. We are concerned here with administrative error. In this regard, I wish to emphasis that the SSHD and her officials bear a particularly exacting responsibility to avoid mistakes of this kind, and they must be brought to account if they fail to take proper care in the discharge of their functions. Nonetheless, however robust the administrative processes, the possibility of human or technological error cannot be entirely excluded, even in decisions concerning ILR. The promptness with which the Secretary of State acts to correct an obvious error will often be material; the longer the delay, the more difficult it may be to justify withdrawal. Here, the correction (in the Second Letter) was issued approximately six weeks after the First Letter, and only some two weeks after the error had been brought to her attention. Had the purported grant of ILR generated consequences for YC or others, judicial review would have been available to challenge the exercise of the implied power and to ensure it remained within lawful bonds. No such circumstances arose in this case.
65. (ii) Power to withdraw adverse decisions. It is common ground that the SSHD possesses a well-established implied power, under the IA 1971, to withdraw and reconsider decisions which are adverse to a claimant. In Chichvarkin, the Divisional Court (Hooper LJ and Kenneth Parker J), relying on AS (Afghanistan) v SSHD [2009] EWCA Civ 1076; [2010] 2 All ER 21, held that the “administrative and procedural arrangements” referred to by Sullivan LJ include the withdrawal of a decision under appeal so that it may be reconsidered in light of new material. As Kenneth Parker J observed at [42], such arrangements “can fairly and properly include the withdrawal of the decision under appeal with a view to reconsideration in the light of facts and matters advanced during the course of the appeal.”
66. At [46] of Chichvarkin, the Divisional Court further noted that it is routine in judicial review proceedings (“practically an everyday occurrence”) for the SSHD to withdraw a challenged decision for reconsideration, sometimes leading to a favourable outcome for the claimant, but in many cases resulting in a further adverse decision for reconsideration, sometimes leading to a favourable outcome for the claimant, but in many cases resulting in a further adverse decision, albeit one addressing the claimant’s representations more fully. The Court rejected, at [48], the contention that withdrawal is permissible only where the SSHD accepts that the original decision was wrong, let alone unlawful. At [53], it affirmed the general principle that a decision-maker has an implied public law power to withdraw any statutory or prerogative decision, subject to public law principles, unless the power is expressly excluded. This approach was endorsed by Green J in R (Hafeez) v SSHD [2014] EWHC 1342 (Admin), who referred at [33] to “the pragmatic course of reconsideration.”
67. I recognise that there is obviously no complete equivalence between the withdrawal of an adverse decision and a favourable decision; the substance of the decision will affect the status of the recipient and/or third parties. That said, and subject to public law constraints (considered below), I see no reason in principle why any distinction should be drawn between the two types of decision when considering the existence of the implied power itself. In this case, of course, it is to be noted that the withdrawal of one erroneously favourable decision (granting ILR) was accompanied by the grant of a different favourable decision (granting LLR). I am sure that, to be effective, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon.
68. There are sound policy reasons, in my judgment, why the SSHD should possess (in addition to her powers under section 76 NIAA 2002 and Article 8ZA(2)(d) of the Immigration Order 2000) an incidental power to withdraw a decision granting or refusing ILR, or any other form of leave, which has been granted by administrative error. The ability to correct mistakes without resorting to judicial review promotes orderly administration and avoids outcomes, such as the unintended grant of ILR, which would otherwise stand despite being plainly unjustified.
69. (iii) Public interest: There is, of course, a strong public interest in clarity, finality and legal certainty in immigration decision-making, as in all areas of public law. However, there is an equally compelling public interest in ensuring that applicants for relief under the IA 1971 are granted only the status for which they lawfully qualify. It is a fundamental principle of the immigration system, as section 1 of the IA 1971 makes clear, that those who are not British citizens and do not have a right of abode “may live, work and settled in the United Kingdom by permission” (emphasis by underling added). An individual should not be permitted to retain an unintended and significant benefit, such as immigration status, arising from administrative or clerical error. While the line of authority following Ram establishes that a mistaken grant may nonetheless have legal effect, as the Upper tribunal observed, those cases do not address whether, or by what means, an obvious mistake may be corrected.
70. A further public interest, well illustrated by this case, lies in ensuring that public authorities possess the necessary power to discharge their statutory duties consistently and lawfully. Errors, whether human or technological, are inevitable; decision-makers should not be irrevocably bound by decisions that result from unintended clerical or administrative mistakes, particularly where those mistakes confer substantive rights that were never intended.
71. (iv) Parliament has not legislated; the power is incidental. …
72. In my judgment, the absence of an express statutory power to withdraw a grant of ILR issued through clerical error does not preclude the existence of an implied or incidental power to do so. It would, indeed, be unusual for Parliament to legislate specifically to address the consequences of human or technological error in administrative decision-making. …
73. An implied power to withdraw decisions enables the SSHD to correct errors without resort to judicial review. In the present context, it would allow an erroneous purported grant of ILR to be corrected, thereby avoiding the injustice of leaving an individual with a status for which they did not qualify. This reflects the nature of an incidental administrative power of the kind contemplated by Lord Sumption in New London College, where he recognised that the Secretary of State may exercise powers “reasonably incidental” to those expressly conferred.
74. I agree with the UT that none of the authorities cited, whether in the immigration context or the wider public law sphere, addressed the precise issue arising here. None holds that the SSHD lacks power to correct an obviously erroneous grant of ILR, nor that such a power is excluded. Equally, none suggest that the power invoked in this case is prohibited. I am also satisfied that Parliament cannot have intended section 76 NIAA 2002 to be a complete or comprehensive code of the circumstances in which a person’s ILR can be taken away; the power in section 76 was developed in response to particular policy imperatives, co-existing with the SSHD’s powers of deportation and administrative removal under the IA 1971. Moreover, as Mr Blundell has argued, each of the scenarios covered by section 76 involves deliberate action on the part of the recipient of ILR which justifies the SSHD terminating the leave. Express statutory intervention is necessary because the leave has been deliberately, an, on the face of it, correctly granted in the first place by the SSHD; subsequent events have occurred (or come to light, in the case of deception) which mean that the public interest demands that the SSHD act to take the leave away. The position is qualitatively different in the case of leave which has been notified by administrative error.
75. …
76. (v) Process and Common Sense. Although it may be said that Haddon-Cave J adopted too broad an approach in Chaudhuri at [46] regarding the scope of a public authority’s implied power to revisit and revoke any decision undermined by a fundamental factual error, I accept his observation at [47] that procedural form must not be allowed to triumph over common sense. That approach accords with the principles of proportionality and utility and, as he went on to note, aligns with the developing principle of good administration in public law, as recognised by Lord Sumption in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39 at [32].
77. … The suite of immigration authorities relied upon by the Appellant, Ram and the cases following it, address only the status or validity of mistaken grants. They do not consider, still less exclude, a public authority’s power to withdraw or correct an erroneously issued decision; in this regard the public law cases offer more support.
78. Limits on the implied power: The SSHD’s exercise of any implied power to withdraw a decision adverse to a claimant is constrained by established public law principles. It must not infringe the legal rights of others, including Convention rights, and must not be irrational, unfair, or otherwise incompatible with the general limits on administrative action (see Chichvarkin at [53]; Chaudhuri at [50]-[51]; New London College at [29]). The same constraints apply with equal force to the withdrawal of a favourable decision. Such a withdrawal is, by its nature, exceptional, highly fact-sensitive, and subject to close judicial scrutiny.
79. Both a grant and a refusal of leave carry consequences for an individual’s immigration status. However, a favourable decision typically has a more profound effect on a person’s settled expectations: it alters their legal and practical position, diminishes precarity, and enables the development of private or family life that may later underpin an Article 8 claim. These considerations underscore why any implied power to withdraw such a decision must be exercised sparingly and, if exercised at all, must (as I have indicated above) be exercised promptly.
33. The second case relied upon by the Applicant in particular is Ram. In outline the background facts were that the applicant first came to the United Kingdom in 1970 and remained until January 1974 in anticipation of employment and/or seeking permission to remain from the Home Office. He returned to the United Kingdom later in 1974 and told the immigration officer he had come to attend a wedding; following which his passport was stamped with leave to enter and remain indefinitely. The applicant travelled on the same passport into the United Kingdom twice in 1976 and once in 1977, when he was again given leave to enter and remain indefinitely. In the United Kingdom he set up a business until June 1978 when he was interviewed by Immigration Officers and arrested pursuant to section 16(2) of Schedule 2 to the Immigration Act 1971. There had been no misrepresentation by the applicant on arrival in the United Kingdom on any of the occasions and therefore as the Immigration Officer had not been misled, the onus was on the Secretary of State to show that the applicant was an illegal entrant. It was held not to be sufficient that the immigration officer had mistakenly stamped the passport of the applicant who did not fall within any of the categories of lawful entrant and the mistake did not vitiate the officer’s authority under section 4(1) of the Immigration Act 1971 to grant leave to enter. The applicant was held to be lawfully in the United Kingdom pursuant to the grant of leave to remain stamped in his passport.
Grounds of challenge
34. Before addressing each of the grounds in turn, I consider the Respondent’s overarching point that this application is academic save insofar as the Applicant seeks to claim damages for breach of Articles 3 and/or 8 of the European Convention on Human Rights; albeit he acknowledges that any claim for damages should be filed in the County Court and no actual claim for damages has been made to the Upper Tribunal. The Respondent’s position was based on the fact that the Applicant’s removal directions were cancelled, he has been re-admitted to the United Kingdom and will not be removed until the determination of his appeal against the refusal of his application for ILE. In these circumstances, there are no remaining issues for this claim to be pursued in the Upper Tribunal.
35. The Applicant’s appeal against the refusal of his application for ILE does not render this application for Judicial Review academic. The appeal will, if necessary, determine the merits of any refusal of ILE on human rights grounds and will, in the meantime, create a barrier to the Applicant’s removal from the United Kingdom and no more than that. The appeal will not determine whether there was a valid grant of ILE on 8 January 2025 or a valid refusal of the application for ILE on 27 January 2025; that can only be considered in the context of this application for Judicial Review on the grounds pursued in relation to the decisions made on 4 and 5 April 2025 (not challengeable by way of a statutory appeal at all) and there would be no valid (or even necessary) appeal at all if these proceedings determine that there was a valid grant of ILE on 8 January 2025.
Ground 1 – Unlawful decision to refuse entry and to remove the Applicant and unlawful removal in the absence of a decision to revoke the Applicant’s indefinite leave to enter
36. The Applicant claims that he was at all times in possession of a valid and extant/subsisting grant of ILE, validly made by an ECO pursuant to section 4(1) of the Nationality, Immigration and Asylum Act 2002 and communicated to him by means of the vignette in his passport, which itself superseded any refusal decision. There had been no lawful decision to revoke that leave pursuant to section 76 of the Nationality, Immigration and Asylum Act 20023. The Applicant’s case is that the Respondent’s refusal decision dated 27 January 2025 was issued in error and could not be construed as a revocation of the ILR evidenced in the vignette in the Applicant’s passport. Further, there was no communication to the Applicant that his vignette was not valid or that it should not be used for travel.
37. In relation to the Respondent’s internal processes for decision-making, these do not amount to a legal prerequisite to the validity of a grant of leave made and communicated under section 4(1) of the Immigration Act 1971 and as such a decision can not be rendered void if the internal allocation of functions was not followed in accordance with the decision in R v Secretary of State for the Home Department (ex parte Ram) [1979] 1 WLR 148. That is particularly so in this case where the factual matrix was very different and in the Applicant’s favour, he expressly made an application for ILE and had not used deception or fraud in doing so, contrary to the facts in Ram where that applicant had not made an application for the leave granted.
38. The Applicant distinguishes the case of R v Secretary of State for the Home Department (ex parte YC) JR-2024-LON-000850 on the basis that it was a fact sensitive decision predicated on the basis that there was an inadvertent grant which was promptly identified and that the error was clearly communicated to the applicant. In the present case, the Applicant received no such communication and it was entirely reasonable for him to rely on the vignette which was, on its face, evidence of unqualified ILE.
39. On behalf of the Applicant, Mr Ijezie emphasised that further to Mr Blackwell’s second written statement, there must have been a conscious human decision to include the Applicant’s details in a manual manifest for his vignette to be printed with ILE conferred. Little weight should be attached to the written statement that the Applicant’s details were not included on such a manifest when Mr Blackwell also confirmed that no records were available from the VAC or otherwise as to what happened. Mr Ijezie also invited me to draw an adverse inference from the Respondent’s failure to retain relevant documents despite the issue of litigation which should have ensured their retention regardless of system changes and regular data retention policies. A more general point was made as to whether the Respondent had properly complied with her duty of candour in this case.
40. Mr Ijezie submitted that the actions of the Respondent on 4 April 2025 and following after the Applicant’s arrival at Heathrow were also consistent with the Applicant’s claim that there was a valid grant of ILE on 8 January 2025 evidenced by the vignette on the basis that the first decision issued to the Applicant on 4 April 2025 was to suspend his permission to enter. If no valid decision had been made to grant ILE, there would be nothing to suspend and this could only have been done if there was a subsisting decision to issue ILE at the time of arrival.
41. As to what happened within the ECM review process, Mr Ijezie submitted that this was irrelevant as a valid decision to grant and notification to print the vignette had all been given by then. There was, in his submission, no need for a decision on 8 January 2025 to have been communicated to the Applicant to be valid and the vignette simply confirmed the decision. In any event, the CRS records could not be relied upon as it contains various unexplained inconsistencies. Including that it shows a decision had been made and ‘revoked’ but not pursuant to section 76 of the Nationality, Immigration and Asylum Act 2002, only described after the event as the terminology used in the IT system. There was further no explanation as to why the decision did not revert to the original ECO to reconsider as the Respondent said it should have done, which again shows the Respondent’s evidence and process lacks credibility.
42. Overall in relation to the first ground, Mr Ijezie stated that the Respondent should not benefit from her own mistakes and errors in handling of this application and decision-making and invited the Upper Tribunal to make a finding that the decision made to issue ILE on 8 January 2025 was a valid one and anything that happened after that (save for the printing of the vignette) was irrelevant. Mr Ijezie further characterised the Respondent’s internal review to risk processes as a ‘quality assurance review’ rather than a decision as such and which did not provide any legal basis upon which a decision already made could be reviewed or changed and in any event, the guidance was outwith the statutory scheme.
43. In summary, the Respondent’s case is that there was no valid issue of ILE to the Applicant and the vignette was printed in error. The ECO considered at first instance that ILE should be granted but had no authority to make a final decision pending review by an ECM, who in this case, concluded that ILE should be refused. That was entirely in accordance with the review to risk policy in place, which required a full review of any decision by an ECM before issue and there was nothing objectionable about that process, nor was it inconsistent in any way with section 4 of the Immigration Act 1971 or paragraph 1(3) of Schedule 2 to the same which provides for instructions to be given to officials. By the time the Applicant received the vignette, he was already well aware that his application had been refused, having received the decision and appealed against it. The case is distinguishable from earlier authorities where the only communication a person had was a putative grant of entry.
44. In these circumstances, it was entirely lawful and rational for the Respondent to refuse entry to the Applicant on arrival at Heathrow; particularly in circumstances where the refusal of his ILE was neither irrational nor unreasonable for the reasons given under paragraph 297 of the Immigration Rules.
45. Mr Anderson submitted that the only case law the parties had identified was not directly on point nor assisted greatly in determining the issues in this appeal because here there are potentially two decisions in play and the nub of the issue is which one is valid. The Respondent’s case is that only the 2nd refusal decision is valid because that is the only decision in which notice was given in accordance with the Immigration (Leave to Enter and Remain) Order 2000, the only decision which was communicated to the Applicant and a decision which was appealed to the First-tier Tribunal. Any decision on 8 January 2025 was not a final decision because it had not been taken in accordance with internal instructions requiring an ECM review (although Mr Anderson accepted in principle that an ECO had the power to make a decision to grant or refuse leave to remain) and had not been communicated to the Applicant, such that he had no expectation of a grant of ILE from it.
46. I asked Mr Anderson why the vignette itself was not considered as communication of a positive decision to grant ILE. He submitted that the issue was which was the operative decision in this case, or which is the valid decision, or which is the extant decision as it can not be the case that both a grant and refusal stand. The sequence of the decision-making was submitted to be important in this case. The CRS notes refer to consideration on 8 January 2025, which included a narrative on the requirements of the Immigration Rules but with no express consideration of whether there were compelling circumstances to make the Applicant’s exclusion undesirable. The printing of the vignette was then in error as it was not in accordance with the prescribed decision-making process (regardless of whether this was automatic or manual) even though the Respondent can not identify precisely how the error occurred. The ECM identified an error in what was analogous to an internal draft decision, which was then revoked, with a refusal (also revoked and then finalised) on 27 January 2025. The notice of refusal was on its face valid and complied with the relevant process and regulations as to notice. In these circumstances, the refusal is the only valid decision and the vignette does not operate to confer ILE over and above a correct refusal of the application. Mr Anderson submitted that a person such as the Applicant should have known the vignette was an error as he had received a detailed decision containing reasons for refusal against which he had an extant appeal and in any event, the vignette was not in those circumstances clear and unambiguous.
Discussion
47. To determine the lawfulness of the Respondent’s decisions on 4 and 5 April 2025 following the Applicant’s arrival at Heathrow, it is necessary to consider what decision(s) had been made and when prior to that, as well as the validity and effect of those decisions. I begin by setting out the features of the four main events in the history of the Applicant’s application for ILE prior to his travel to the United Kingdom: (i) the ECO consideration on 8 January 2025; (ii) the printing of the vignette on 15 January 2025; (iii) the refusal decision on 27 January 2025; and (iv) the return of the Applicant’s passport on 3 April 2025.
48. The Applicant’s case is that a valid decision was made on 8 January 2025 to issue him with ILE, whereas the Respondent’s case is that no such final or valid decision was made on that date to issue, only a later final decision on 27 January 2025 was made to refuse the application.
49. The only available information as to what happened on 8 January 2025 (at that time) is that contained in the CRS which shows two separate entries on 8 January 2025. The first includes detailed notes as to why the decision to issue was made, including indicating that various specific requirements (such as suitability, maintenance, accommodation and TB were all met) but in the decision type it states ‘Issue of Visa (Revoked)’. The notes section clearly indicates the ECO view that the application should be granted and sets out why, but the decision type indicates that any decision to issue had been revoked.
50. The Respondent states that ‘revoke’ and ‘revoked’ are non-legal terms used within the IT system as opposed to any revocation pursuant to section 76 of the Nationality, Immigration and Asylum Act 2002. Given its use elsewhere in the CRS records, including in relation to a refusal being ‘revoked’ it is accepted that this is an internal term on the system to remove a decision of any sort if a correction is required. It is not a legal revocation of a decision in the sense of section 76 of the Nationality, Immigration and Asylum Act 2002.
51. The second entry on 8 January 2025, less than a minute after the first, states that the type was ‘Refer – ECM’ and in the notes section stated only ‘297 issue to ECM review’.
52. The nature and timing of the entries suggests two possible explanations. First, that the ECO had initially thought to issue the grant on the basis that the requirements of the Immigration Rules were met, but then immediately revoked that decision on the basis that such a decision should not have been final but instead subject to a referral to an ECM for review, which there was then a referral for. Secondly, that the ECO had made a decision to issue the visa on 8 January 2025, also referred that decision to the ECM for review and that the system subsequently recorded that decision as revoked following the entry on 25 January 2025 by ‘dclaxton’ (the ECM) which refers to a type: ‘Revoke Decision’ and in the notes ‘Revoke after ECM review’. Again, this appears to be an administrative step within the decision-making process.
53. There is no statement from the ECO (or the ECM) as to what actually happened and no further records available. The written statement from Mr Blackwell gives some explanation as to the IT system used and the decision-making process; but does not give any explanation or information relevant to the specific point as to whether a decision made would later be amended to ‘revoked’ following subsequent activity.
54. The timing of the two entries on 8 January 2025, made less than a minute apart, may indicate a mistake was made and an immediate correction made to show the referral to an ECM rather than issue of visa. That explanation is supported by there being no evidence of any letter at that time (or any time later) to the Applicant communicating that his application had been granted, as would ordinarily be the case where a final decision had been made to do so. It is further supported by the process being in accordance with the internal guidance set out above, with a referral to an ECM in these circumstances being in accordance with both section 4(1) and paragraph 1(3) of Schedule 2 to the Immigration Act 1971 which sets out decisions which can be made by Immigration Officers (which encompasses both ECO’s and ECM’s) pursuant to instructions which are not inconsistent with the Immigration Rules. The review to risk instructions not being inconsistent with the Immigration Rules and setting out the internal decision-making process required, by whom, for applications under paragraph 297 of the Immigration Rules.
55. However, the alternative explanation that the ECO decision was validly made on 8 January 2025 and only later revoked by the ECM on 25 January 2025 is supported by two different points. First, if no final decision had been made on 8 January 2025 to issue a visa, there should be no decision at all to ‘revoke’, it would simply be a draft decision or view following which a final decision would then need to then be taken. Secondly, although the Respondent’s case is that it was a mistake that the vignette was printed on 15 January 2025; there is no explanation for how this mistake occurred given that the Respondent’s evidence is also that the Applicant’s details would have needed to have been included in a manual manifest for printing following a check on details on the system. The Respondent says that they were not included, but there is no evidence in support of this and it is unclear as to how that conclusion was reached when Mr Blackwell also states that there is no longer any evidence available from the period prior to April 2025 beyond what is recorded on CRS and nothing available from the VAC itself. The printing of a vignette by the VAC without being provided with the Applicant’s details to do so is perhaps more difficult to explain as a mistake.
56. The printing of the vignette on 15 January 2025 is consistent with a final decision having been made and recorded as made on 8 January 2025; only later revoked on 25 January 2025, which was some 10 days after the vignette was printed. There are two possible explanations for what the mistake was in the printing of the vignette. First, that it should not have been done at all because there was no final decision made on 8 January 2025, albeit entirely unexplained by the Respondent as to how such a mistake could have happened and without any relevant records having been retained which may have assisted. Secondly, the mistake could have been that the ECO should not have recorded a final decision on 8 January 2025 because it had not yet been through the ECM review process for such a decision to be issued. Again, there is no explanation at all from the ECO or ECM involved in this decision and Mr Blackwell’s written statement does not assist with any relevant information as he has been unable to identify the actual mistake. Both options are plausible on the evidence before the Upper Tribunal.
57. Overall, considering all of the factors and evidence set out above, I find that the ECO did make a decision to issue ILE to the Applicant on 8 January 2025, further to which a vignette was printed on 15 January 2025. On the Respondent’s case, which I accept, one or both of those things was a mistake and not in accordance with the guidance set out above, however, the important question that follows is what are the consequences of a mistake on one or both points.
58. The first issue is whether the ECO’s decision on 8 January 2025 to issue ILE was a lawful one within his or her power to do in accordance with section 4(1) of the Immigration Act 1971, or whether it was void for failure to follow the instructions given in light of paragraph 1(3) of Schedule 21 of the same Act. Both parties accept that in principle, an ECO can lawfully issue a decision to grant or refuse ILE following an application under paragraph 297 of the Immigration Rules, which must be correct and is in accordance with the decision-making process in the present case – it is the ECO who also made the decision to refuse and the only entries by the ECM were in relation to revoking a decision or reviewing it; not as the actual decision-maker.
59. In accordance with the decision in Ram, although on different facts, a decision by an ECO to issue ILE despite not following the internal review procedure before doing so does not render that decision void ab initio. The facts in the present case are even clearer given that the Applicant had applied for ILE pursuant to paragraph 297 of the Immigration Rules and there is no suggestion that the ECO would have been acting completely outside of the range of possible responses to grant the application (contrary to, for example, a grant of ILE on an application for entry clearance in a different capacity than under paragraph 297 of the Immigration Rules, albeit even that was not enough in Ram). Whether as a matter of law the Applicant met all of the requirements of paragraph 297 of the Immigration Rules for a grant of leave is a question beyond the scope of this application for Judicial Review (and is, if necessary, to be determined on appeal by the First-tier Tribunal) however there are factors which point both ways on this and there is no agreement between the parties that the grant was ultimately incorrect or itself a mistake. If it was, it was not one so clear as that made in either Ram or YC, where in the latter, it was common ground that there was an administrative error and that YC was not entitled to a grant of ILR; as opposed to a different view on the substantive merits of the application.
60. The second issue is whether the Respondent had the power to correct any mistake, either in the decision of the 8 January 2025 or in the printing of the vignette on 15 January 2025. In accordance with the decision in YC, the answer to that is in principle yes, subject to certain conditions and safeguards set out therein. Had the Respondent identified the mistake (or if more than one, all mistakes) prior to any communication to the Applicant of a decision to grant (by way of letter, which never happened, or by issue of the vignette on return of his passport on 3 April 2025) there is in my view no question that any error in a decision on 8 January 2025 could have been corrected by way of the refusal decision that followed on 28 January 2025 and the printing of the vignette could have been corrected by it being spoiled before the passport was returned. In those circumstances, the mistake would likely be considered obvious and it would have been corrected before the Applicant had any knowledge of it, nor any possible reliance on it; and none of what followed would have happened.
61. The difficulty in the present case is that the Applicant received the vignette without the mistake having been spotted, some weeks after receiving a decision refusing his application (which he had by then also already submitted a notice of appeal against). It can not have been the case that the Respondent was unaware that the vignette had been printed at all, as she appears to have claimed as a reason as to why it had not been spoiled before the passport was returned, although it could be an oversight that it had not been spotted. The CRS records show a clear and unequivocal entry on 15 January 2025 that the vignette had been printed and there is nothing to suggest that entry would not have been visible to those subsequently considering the application. It should have been obvious to the ECM and then the second ECO who reconsidered the decision that a vignette had already been printed and there is no explanation at all as to how or why this was missed or not dealt with at that time. It does not squarely fall within the range of ‘mistakes’ or missed opportunities identified by Mr Blackwell. The mistake as to the printing of the vignette seems only to have been identified following the Applicant’s arrival in the United Kingdom.
62. The next point is whether the refusal decision on 27 January 2025 rectified any mistake in either the decision on 8 January 2025 or the printing of the vignette. For the reasons immediately above, it can not directly have rectified any error printing the vignette as the fact that it had been printed had not been spotted at the time and no actual steps were taken to spoil it at or around the time of the refusal decision on 28 January 2025 (or at all).
63. In relation to the original issue of ILE on 8 January 2025, given that by the time of the refusal decision on 27 January 2025, this had not been communicated to the Applicant in accordance with the Immigration (Leave to Enter and Remain) Order 2000 (or at all), I do not consider that there is any doubt that the Respondent could have changed the decision internally following review and as a purely administrative and internal matter without the need to follow the requirements of section 76 of the Nationality, Immigration and Asylum Act 2002 or even the factors in YC. There was a prompt correction of what the Respondent considered was a case-working error on 8 January 2025 both in terms of the need for an ECM review before a final decision was made and in terms of substance given that following that review, the decision was to refuse ILE; including on the basis that there had not been proper consideration of or evidence about the Applicant’s father and whether there were serious and compelling family or other considerations which made exclusion of the Applicant undesirable (an express requirement of paragraph 297(1)(i)(f) of the Immigration Rules). If a valid decision was taken by the ECO on 8 January 2025, it had been revoked on 25 January 2025 and replaced on 27 January 2025 with a refusal of the application, which was communicated to the Applicant the following day. By that point, even if a decision to grant was taken on 8 January 2025, it was no longer valid or extant, particularly absent communication to the Applicant.
64. There is a further consideration as to whether the Respondent’s actions/decisions following the Applicant’s arrival at Heathrow were indicative of a valid grant of ILE having been made, or in particular, remaining extant on arrival. Mr Ijezie submitted that the actions of the Respondent following the Applicant’s arrival at Heathrow were consistent with him arriving with valid leave to enter given that this was cancelled following arrival and therefore must have been in existence in the first place to need to be cancelled. Unfortunately, the actual refusal decision on 4 April 2025 has not been included in the bundle (despite this being a mandatory requirement for any decision under challenge to be included) so it is not possible to refer to the exact wording of the decision or the provisions relied upon for it.
65. The only documents included by the Applicant are (i) a partial copy of the notice that the Applicant is liable to be examined and detained; with suspension of permission to enter/remain pursuant to paragraph 2A(7) of Schedule 2 to the Immigration Act 1971 issued at 17:15 on 4 April 2025 [page 70 of the bundle] and (ii) the notice of removal directions dated 5 April 2025. The IS82 refusal notice that Mr Stump refers to being drafted late on 4 April 2025 and updated following the setting of removal directions is not included. The first document does not assist as it is very shortly after arrival and is clearly a holding position while matters are investigated without any final view of any permission, valid or otherwise. The suspension of what at first sight may have been ILE as per the vignette pending investigation does not take the matter any further. The second document does not assist as it contains no relevant reasons.
66. The only information as to the contents of the decision itself to refuse entry comes from Mr Stump’s written statement (none of which have been directly challenged by the Applicant), which sets out that the reason for refusal was that the settlement visa had been revoked (which is consistent with the entries on CRS on 8 and 25 January 2025) and there was a mandatory refusal under paragraph 9.14.1 of the Immigration Rules. Paragraph 9.14.1 of the Immigration Rules states:
“Permission to enter must be refused if the person seeking entry is required under these rules to obtain entry clearance in advance of travel to the UK, and the person does not hold the required entry clearance.”
67. The refusal of entry on that basis on 4 April 2025 strongly supports the Respondent’s position that there was, as at 4 April 2025, no valid ILE granted to the Applicant.
68. In any event, the real issue in the present case is whether the return of the Applicant’s passport containing a vignette showing a grant of ILE (which on its face satisfied the requirements of such a document for the grant of entry in accordance with the Immigration (Leave to Enter and Remain) Order 2000) on 3 April 2025 was (i) a mistake and (ii) a mistake which could lawfully be rectified on 4/5 April 2025 by the Respondent. Even if the printing of the vignette on 15 January 2025 was not a mistake (although on balance it likely was an administrative mistake because it should not have been done prior to the ECM review of the decision on 8 January 2025 and when the CRS recorded this as a review case), the return of the Applicant’s passport with the vignette affixed to it after the refusal decision had been notified to the Applicant was as there was, at that point, no valid grant of ILE. Although for the reasons set out above and in Mr Blackwell’s written statement, there appear to have been at the very least a number of missed opportunities to identify and rectify that mistake before the passport was returned, the mistake was only actually identified following the Applicant’s arrival at Heathrow when the system was checked and showed the application had been refused.
69. When considering whether the Respondent had the power to correct that mistake on 4/5 April 2025, I take into account the factors in YC. Those include the power of the Respondent to correct mistakes outside of any formal power to do so within the statutory scheme (and without needing recourse to, for example, section 76 of the Nationality, Immigration and Asylum Act 2002) and the public interest in doing so to ensure that applicants are granted only the status for which they lawfully qualify and that an individual should not be permitted to retain an unintended benefit and significant benefit, such as immigration status, arising from administrative or clerical error; even if a mistaken grant may still have legal effect (as in Ram).
70. Although not a concern on the facts of the present case, I would also add a separate public interest particular to applications under paragraph 297 of the Immigration Rules to ensure that children are only moved to the United Kingdom if all of the requirements of the Immigration Rules are met, in particular the family relationships are as claimed and after a full examination of their welfare and circumstances; all of which are vital for safeguarding reasons in relation to a particular child, as well as the general importance of satisfaction of the Immigration Rules.
71. The main focus within the factors in YC are whether there was an obvious mistake that had been corrected promptly. As above, there was a mistake in the Applicant’s passport being returned to him without the vignette first having been spoilt following the refusal decision dated 27 January 2025 given that he had no extant ILE at that time. This was an obvious administrative or clerical mistake. The vignette was not itself a decision by an Immigration Officer, but at its highest could only be evidence of such a decision. As above, that may well have been the case when it was printed on 15 January 2025 (whether or not the printing itself was a mistake), but was not when it was returned to the Applicant on 3 April 2025 given that no decision by the ECO on 8 January 2025 had been communicated to the Applicant; any decision on 8 January 2025 had been revoked no later than 25 January 2025; and the Applicant’s application had been refused with a fully reasoned refusal letter issued on 28 January 2025 to the Applicant. The latter had not been withdrawn, even following the issue of an appeal which remained live against it and I do not consider any basis for the Applicant’s assertion that the refusal letter was simply irrelevant as a different decision had already been made, even if not communicated.
72. In these circumstances, the return of the passport containing a vignette reflecting a decision which no longer existed nor was valid can not be anything other than an obvious clerical mistake. I also consider that for the same reasons, the mistake should have been obvious to the Applicant given his receipt of the refusal letter, his ongoing appeal against refusal and that he had at no time been notified of any positive decision by an Immigration Officer (ECO or ECM) that his application had been granted. At the very least, there is no explanation at all from the Applicant as to why he did not check the validity of the vignette in these circumstances before travelling pursuant to it the very next day after receipt.
73. As above, whilst there were at the very least missed opportunities to identify and rectify the mistake prior to the return of the Applicant’s passport on 3 April 2025; the mistake was rectified promptly upon discovery on 4 and 5 April 2025 following the Applicant’s arrival at Heathrow by means of cancellation of the same, as it was not valid given the refusal of the application. In any event, the rectification was relatively prompt being within a matter of weeks even from the longstop gap since the refusal of the application on 28 January 2025.
74. There was undoubtedly detrimental reliance by the Applicant following return of his passport with the vignette affixed to it as he travelled pursuant to it and was refused entry and then removed from the United Kingdom (albeit then brought back), but I do not consider that he could have reasonably expected that to be a valid and unequivocal grant of ILE in circumstances where he had previously only ever been notified of a refusal of his application and had a live appeal against it; nor had he received any communication from the Respondent suggesting that the refusal had been withdrawn. There is no explanation directly from the Applicant as to his belief at the time, nor any explanation as to why at the very least he did not check the position before travelling. I find it would have been reasonable to expect him to do the latter.
75. Following consideration of the history and effect of decision making in the present case, I return to the specifics of the first ground of challenge, that it was unlawful for the Respondent to refuse the Applicant entry to the United Kingdom, decide to remove him and then actually remove him on 4 and 5 April 2025. For the reasons set out above, I find that in accordance with the principles set out in YC, the Respondent was entitled to correct the mistake as to the return of the Applicant’s passport containing a vignette for ILE on 3 April 2025 as at that point, there was no extant or valid decision by an Immigration Officer to grant ILE. There had been an administrative mistake that had not been identified prior to that point that the vignette had not been spoiled subsequent to the refusal decision on 28 January 2025, or that it had not been spoiled as there was arguably a mistake in it being printed at all on 15 January 2025.
76. On the evidence before the Upper Tribunal, there was insufficient evidence that the Applicant held a valid decision to grant him ILE pursuant to paragraph 297 of the Immigration Rules on his arrival at Heathrow on 4 April 2025. The vignette affixed to his passport was in error at the date on which this was returned to the Applicant and the Respondent had the power to correct that error once identified by spoiling/cancelling the vignette. In these circumstances, it was lawful for the Respondent to refuse the Applicant entry following his arrival to Heathrow and it was further lawful for the Respondent to issue removal directions and remove the Applicant from the United Kingdom as he was a person who required entry clearance or leave to enter and did not have it (thus the mandatory refusal under paragraph 9.14.1 of the Immigration Rules). Further to the decision in YC there was no limitation on the Respondent’s power to correct a mistake only within the statutory scheme set out in section 76 of the Nationality, Immigration and Asylum Act 2002.
77. For these reasons, the first ground of challenge is dismissed.
Ground 2 – Irrational and/or Wednesbury unreasonable decision by the Respondent to refuse entry and remove the Applicant.
78. In essence, the Applicant’s case under this ground is that the Respondent’s decision to refuse him entry and remove him from the United Kingdom was perverse given that the Applicant was in possession of valid ILE and that it was manifestly unlawful and irrational for the Respondent to rely, in the absence of an express revocation of ILR, on a prior refusal letter.
79. The Applicant raises a number of concerns as to the Respondent’s position as to what happened and when in relation to decisions in response to this application. First, the Respondent refers to an original decision by the ECO on 8 January 2025 to issue ILE but also states that no valid decision every existed because the ECO lacked authority to issue it. Secondly, the Respondent refers to an initial refusal being ‘revoked’ followed by a ‘subsequent, and final, refusal’ which is inconsistent with the case put that there was never a valid decision to issue capable of revocation and there is no explanation as to how a refusal could be ‘revoked’. Thirdly, the Respondent’s account is further contradictory because following the Applicant’s arrival at Heathrow, the Border Force officials there stated that a revocation notice had been served on the Applicant’s uncle but the later witness statement expressly stated this did not happen. Fourthly, the Respondent has not provided any evidence as to whether or not the Applicant was notified of the decision on 8 January 2025 or otherwise; although the Applicant confirms none was received prior to collection of his passport on 3 April 2025. Fifthly, the Respondent has not provided any evidence of any system error or explanation as to how the vignette could have been issued in error.
80. The Respondent’s position is in essence the same as in response to the first ground of challenge, that there was a valid refusal of the Applicant’s application for ILE which had been communicated to him and the vignette was issued in error. As such, the Applicant arrived at Heathrow as a person who required entry clearance but did not have it; so it was entirely lawful and rational to refuse him entry and remove him from the United Kingdom. Mr Anderson resisted the submission that any adverse inferences should be drawn against the Respondent for the reasons relied upon by the Applicant.
81. I repeat the points above in relation to the first ground of challenge and reasons as to why that was dismissed. The Applicant’s second ground of challenge is predicated upon there being a valid grant of ILE to him at the point when he arrived in the United Kingdom on 4 April 2025, which for the reasons already given, there was not. In these circumstances, the second ground of challenge must also fail. The Respondent could not have acted irrationally in refusing entry to a person without valid entry clearance or leave to enter the United Kingdom who did not have the same and was, for the reasons above, entitled to correct the vignette error.
Ground 4 – Breach of legitimate expectation in the decision to refuse entry and remove the Applicant
82. The Applicant claims that he and his family in the United Kingdom held a legitimate expectation from the grant of ILR contained within the vignette affixed in his passport that he would be admitted to the United Kingdom pursuant to the same and that the Respondent’s refusal to admit him and the remove him was a breach of that legitimate expectation. The Applicant reasonably relied on the same to his detriment and it was conspicuously unfair of the Respondent to resile from that representation at the border.
83. As set out within the context of the first ground of challenge, the Respondent’s position is that in circumstances where the Applicant had been notified of a refusal of his application, with reasons and notice of his rights of appeal in accordance with both the Immigration (Leave to Enter and Remain) Order 2000 and Immigration (Notices) Regulations 2003; there was no clear and unambiguous promise of entry pursuant to the vignette and in any event, the circumstances were not such that it was unfair to resile form such an undertaking as the vignette presented. Further, it was reasonable in the circumstances for the Applicant to have at least made enquiries as to the validity of the vignette after he had received a refusal decision on his application.
84. This ground of challenge fails for essentially the same reasons as already given in relation to the first ground of challenge; that in circumstances where the Applicant had received no communication from the Respondent of a grant of his application for ILE and had only received a detailed reasons for refusal letter; pursuant to which there was a live appeal against refusal; there was no clear and unambiguous promise of entry to the United Kingdom pursuant to a vignette which was an obvious clerical error and which should have been reasonably obvious to the Applicant. Further, at the very least, it would have been reasonably expected that the Applicant check the validity of the vignette prior to travel. For all of these reasons, there was no breach of legitimate expectation in this case by the Respondent’s refusal of entry to and removal of the Applicant.
Ground 5 – Procedural unfairness in the decision to refuse entry and remove the Applicant
85. The Applicant claims that the Respondent’s decisions to refuse the Applicant entry and to remove him from the United Kingdom were made without proper explanation to the Applicant and without giving him a reasonable opportunity to seek legal advice and made informed representations, amounting to procedural unfairness. The Applicant had no opportunity to address the allegation that his leave was invalid or had been revoked and no revocation decision was issued to him. Further, given the Respondent’s shifting position, the Applicant was deprived of any meaningful ability to understand, challenge or respond to the case against him.
86. The Applicant claims that after arriving at Heathrow around 4pm on 4 April 2025, being refused entry and detained around 5:15pm that day, he was only permitted limited and delayed contact with his family, being able to speak to his aunt and uncle around 8pm. The Applicant’s family and legal representatives claim to have had difficulties phoning the short-term holding facility at Heathrow.
87. The Applicant was denied effective access to legal representation following his arrival at Heathrow. The Respondent refused to correspond with the Applicant’s solicitor in the absence of a signed letter of authority and on the basis that the Applicant had denied knowledge of having any legal representation. The grounds of challenge state this was plainly incorrect as the Applicant had been aware that EcoM solicitors were acting on his behalf. The Applicant was only able to speak to his solicitor at 11:26am on 5 April 2025.
88. The Respondent’s position in the first instances is that this ground of challenge adds nothing of substance to the earlier four grounds – if he is successful on those, there is nothing more in this and if not, he had no right to enter or remain and his removal was plainly lawful. In any event, the decision to refuse entry and remove the Applicant was not procedurally unfair in the context of the requirements of immigration control and in circumstances where the Applicant had access to a phone to contact family and/or to access legal advice for which there was not initially any letter of authority to show that solicitors were acting.
89. Whilst I acknowledge that the Respondent’s position over the history of this case has not been entirely clear or consistent; the evidence before me shows that there was sufficient information given to the Applicant following his arrival at Heathrow for him to be able to understand the reasons why (i) he was being detained and his permission to enter suspended whilst matters were investigated, and (ii) he was then being refused leave to enter and removed; enabling him to make representations against the latter. The issue was relatively narrow, the Respondent’s position was that the vignette was not valid as the Applicant’s application for ILE had been refused (a point which the Applicant acknowledged he had received notice of) and the Applicant’s position was that so far as he was aware and on its face, the vignette was valid. Although there have been far more detailed arguments on the underlying legal position and validity of the vignette, it is difficult to envisage what more the Applicant could have been told or said in response during a short period of time following his arrival. There is no written statement from the Applicant as to his understanding of what was happening at Heathrow or what had been explained to him and nothing at all on what, if anything he said or would have said in response. In any event, he obtained legal advice and proceedings were issued urgently which began the process of dealing with the point in more detail and representations as to bail, removal and other matters were made on the Applicant’s behalf by his solicitors.
90. The two specific claims that the Applicant was denied contact with his uncle and denied effective access to legal representation following his arrival at Heathrow are not borne out by the evidence of extensive correspondence between the Respondent and the Applicant’s solicitors as set out in the chronology above.
91. In relation to family contact, the emails show clearly that the Applicant had spoken to his uncle around 8pm on 4 April 2025 and thereafter he had been told of and repeatedly reminded of his ability to make a call anytime; and in addition, his uncle had been provided with contact details for the holding facility. There is no evidence at all from the Applicant to deny or contradict the contents of those email exchanges and on its face, the evidence shows that he was able to, but chose not to, have more contact than he did with his uncle during that period. There is no need for the Respondent to go further and evidence any internal records of specific conversations with the Applicant on this point, what happened is sufficiently clearly set out in the email correspondence.
92. In relation to access to legal advice, the emails also clearly show that the Applicant repeatedly denied knowledge of a having any representative acting for him and at least initially, the solicitors had no valid letter of authority to show that they were so acting. The Respondent was entirely clear as to the information being given to them by the Applicant and the need for a signed letter of authority for him for the solicitors to act. Again, there is no statement from the Applicant denying or contradicting what is recorded in those emails. The surprise expressed by the Applicant’s solicitors that he should know they were acting because they had assisted with making his entry clearance application is irrelevant and the emails from them demonstrate their own failure to understand the need for a valid letter of authority from the Applicant as an adult. The records do not show any denial of access to legal representation, to the contrary, clear information was given to both the Applicant and the solicitors as to what was required for this and the Applicant had repeatedly denied having a representative.
93. In any event, even prior to receipt of the letter of authority, there was extensive correspondence between the Respondent and the Applicant’s solicitors about the situation and thereafter it is self-evident that effective legal advice was given and instructions obtained from the fact that both an application for bail was made and an urgent application was lodged for a stay on removal; both within a matter of hours of the letter of authority being signed.
94. For these reasons, there was no procedural unfairness in the Respondent’s actions following the Applicant’s arrival at Heathrow. The Applicant was told of the reasons why he was not permitted to enter and would be removed and he was informed of his ability to communicate with family (which he did) and for legal representation. The application on ground four is dismissed.
Ground 6 – Breach Articles 3 and 8 of the European Convention on Human Rights in the decision to refuse entry and remove the Applicant
95. The Applicant claims that the refusal of entry to the United Kingdom, his detention and then removal to Kenya without due process or access to legal support caused extreme psychological distress which engaged and breached Articles 3 and 8 of the European Convention on Human Rights. The ground of challenge emphasises that the Applicant had recently turned 18 and had travelled alone from Kenya to reunite with close family in the United Kingdom and as such was in a vulnerable position, particularly as he was denied timely access to legal representation. The lack of legal foundation to the decisions taken is said to have further aggravated the Applicant’s stress and breached his right to respect for private and family life pursuant to Article 8.
96. The Applicant claims that following removal from the United Kingdom, he was stranded at the airport in Nairobi without food and water until the afternoon of 5 April 2025, having departed from the United Kingdom around 6:30pm (UK time) on 4 April 2025. Further, he was unable to bathe or shower from 5:15pm on 4 April 2025 until approximately 12:45am (local time in Kenya) on 6 April 2025 and 10:45pm (UK time) on 5 April 2025. The withholding of the Applicant’s passport by Kenya Airlines, cost of this flight ticket and consequential delays to his return to the United Kingdom caused the Applicant ‘palpable tension’.
97. The Applicant is said to have been unlawfully detained and unlawfully removed from the United Kingdom; with treatment including abandonment at Nairobi airport without food, funds or his passport; attained the minimum level of severity to engage Article 3 of the European Convention on Human Rights in accordance with East African Asians v The United Kingdom (Applications No. 4403/70-4478/70, 4486/70, 4501/70 and 4526/70). Paragraph 189 set out the European Commission’s view that:
“… The term “degrading treatment” in this context indicates that the general purpose of the provision is to prevent interferences with the dignity of man of a particularly serious nature. It follows that an action which lowers a person in rank, position, reputation or character can only be regarded as “degrading treatment” in the sense of Article 3 where it reaches a certain level of severity.”
98. The Applicant claims that his removal in breach of an injunction aggravates the severity of the degrading treatment experienced. For the purposes of Article 8, it is claimed that the Applicant’s treatment caused ‘extreme psychological distress’, again aggravated by his removal in breach of an injunction.
99. At the oral hearing, I specifically asked Mr Ijezie how Article 8 was engaged in this case given that the Applicant had not entered the United Kingdom and had no established family or private life in the United Kingdom. Mr Ijezie relied on the Applicant’s presence on the territory of the United Kingdom at Heathrow and the decision in Pretty v the United Kingdom (Application no. 2346/01) as to Article 8 private life covers the physical and psychological integrity of a person [at para 61].
100. The Respondent’s position on this final ground is in essence that the Applicant has failed to particularise a plausible claim and is unable to realistically pursue it in the absence of any objective or even subjective evidence from the Applicant himself; nor has it been explained at all how either Article 3 or Article 8 is even engaged in the circumstances of this case. What is asserted in the grounds falls very far short of the threshold of severity required for an Article 3 claim and in respect of Article 8, the Applicant plainly had no private life established in the United Kingdom before arrival and nothing to support any claim to have established family life here either. A person’s psychological integrity or distress at a situation does not amount to a freestanding Article 8 claim.
101. There are a number of difficulties with the Applicant’s final ground of challenge as follows. First, the Applicant’s ground of challenge in relation to whether the injunction was breached was not given permission and there is no unlawful detention claim before the Upper Tribunal. It is very far from being established in these circumstances that the Applicant was unlawfully detained or unlawfully removed, in breach of an injunction or otherwise. The Applicant’s assertions of the same are wholly unsupported in these proceedings and wholly inappropriate.
102. Secondly, the Applicant has failed to establish that the situation in Nairobi airport or treatment there was in any way attributable to or the responsibility of the Respondent. The actions of Kenya Airways to withhold the Applicant’s passport were entirely outwith the Respondent’s control and it the Respondent’s explanation that such actions were without legal foundation (including the demand for payment of the return flight cost) has not been disputed by the Applicant. The reasons for delay at Nairobi airport before the Applicant’s return to the United Kingdom are, on their face, attributable only to the actions of Kenya Airways. The Applicant has not suggested that there was any positive duty on the Respondent to make any, nor any particular provision, for the Applicant following his return to Nairobi beyond arrangements for his return to Heathrow which, as can been seen from the chronology, were made as soon as practically possible once the Applicant’s passport had been returned to him.
103. Thirdly, there is no evidence at all from the Applicant in support of either the Article 3 or 8 claim. There is no written statement from him and therefore no account from him at all as to his experiences either at Heathrow or in Nairobi, nor the effect of the situation on him. There is absolutely no evidence beyond mere assertion in the grounds to claim that the Applicant suffered any particular adverse treatment at all, let alone any evidence of extreme psychological distress. In particular in relation to the latter, there is no medical evidence to support this, nor evidence of any ongoing adverse effect on the Applicant of what happened.
104. Fourthly, the Applicant has not established any legal basis upon which Article 8 of the European Convention on Human Rights is even engaged in these circumstances. The Applicant has only previously visited the United Kingdom on one occasion and on this occasion had only got so far as Heathrow airport for a limited period before his removal. There is no evidence at all to suggest that he could have established any private life within the United Kingdom at or during this time, regardless of whether he was technically within the territory of the United Kingdom. There is also nothing to support a suggestion that the Applicant had family life established in the United Kingdom at the time of his arrival at Heathrow as an adult in accordance with the test set out in IA v Secretary of State for the Home Department [2025] EWCA Civ 1516. In the absence of established private or family life in the United Kingdom, Article 8 of the European Convention on Human Rights is simply not engaged and there is no separate or freestanding protection for a person’s psychological integrity that could even arguably engage Article 8.
105. Fifthly, the very brief assertions in the grounds of challenge fail to come anywhere close to establishing the minimum level of severity for an Article 3 claim that that the Applicant has suffered treatment amounting to torture or inhuman or degrading treatment or punishment. A period of not being able to shower of less than 48 hours (the timing in the grounds is confused and inconsistent on the actual timeframe where it is said the Applicant could not wash) and an unspecified period of not being given food at Nairobi airport (when in any event the circumstances were entirely outwith the control of the Respondent and unattributable to her) fall very far short indeed of inhuman or degrading treatment and were certainly not examples of torture. Whilst not wishing to underplay must have been a difficult time for the Applicant, at its very highest, the unevidenced claims amount to no more than some discomfort and inconvenience to him.
106. For these reasons, this final ground of challenge is wholly unarguable. It does not meet even the basic requirements of particularising a claim to even engage such grounds, nor any of the evidence required for such a challenge to be pursued. Although permission was granted on this ground, it self-evidently should not have been pursued in this way.
Conclusion
107. For the reasons set out above, this application for Judicial Review is dismissed on all grounds.
108. There is one final issue as to be determined as to whether the stay on removal previously granted should now be discharged as these proceedings are at an end. It is my preliminary view that the Respondent is correct that it should now be discharged as there is no longer any live application for Judicial Review to attach it to. In any event, the Applicant has an ongoing appeal before the First-tier Tribunal which until finally resolved, is a barrier to his removal from the United Kingdom. The parties are invited to agree matters in relation to the stay in a draft order following receipt of this decision on an embargoed basis.
Post-script
109. An embargoed draft of the decision above was circulated to the parties on the usual basis, the purpose of disclosure of the draft being to assist in identifying any misprints, inadvertent errors or fact or ambiguities of expression and not to enable them to re-argue the case (Per Lord Hoffman in Edwards v Environment Agency [2008] UKHL 22).
110. On 22 April 2026, Mr Ijezie sent in typographical corrections, but also went much further than invited and made submissions in relation to paragraphs 64 to 66 above and separately sent in further documentation seeking its late admission. He stated that the Applicant received the IS.81 decision on 4 April 2025, took a photo of it on his phone which he sent to his uncle who then provided it to his solicitors. When further inquiry was made of the Applicant’s aunt and uncle on 21 April 2026, they did not recall the document, but were then able to locate it and provide a further copy. A total of six further documents were sent, which were an IS.82 dated 4 April 2025; an IS.81 dated 4 April 2025 and another dated 8 April 2025; an IS.86 dated 4 April 2024 and two notices to detained persons both dated 4 April 2025.
111. Mr Ijezie was informed by the Upper Tribunal that a formal application was required if he sought admission of the further documents
112. which must set out (i) the legal test for late submissions and/or relief from sanctions and how it is met in this case; (ii) a full explanation for the delay contained in a written statement or statements accompanied by a statement of truth; (iii) the Respondent’s views on the application; and (iv) setting out any consequential matters, including for any submissions on the documents themselves.
113. The initial response from Mr Ijezie was simply that he would liaise with the Respondent to file a consent order in relation to the documents. An application was however made on 23 April 2026, presumably as the Respondent opposed the late admission of documents. The application referred to the test in Denton and stated that (i) the late filing was serious but not significant given the stage of proceedings that had been reached; (ii) there was a good reason for the Applicant’s delay, which was that there were stressful circumstances for the Applicant and his solicitor on the night of the 4 April 2025; that when the interim injunction was granted there was a requirement to file the application for Judicial Review two days later (by 4pm on 7 April 2025) which was done with the documents then available; that until 21 April 2026 the Applicant was unaware that he had the documents in his possession and that these were located following a search of the Applicant’s luggage on 21 April 2026; (iii) in all of the circumstances it was just and equitable to admit the additional documents. In particular, it was noted the relatively young age of the Applicant at the time of his arrest, detention, removal and return to the United Kingdom together with the extraordinary level of engagement by the Applicant’s solicitor with the Respondent, the High Court and the Upper Tribunal between 4 and 8 April 2025; that although the Applicant was under a duty to file the decision under challenge, it was inadvertently omitted and the Respondent breached her duty of candour to disclose the same; and that the missing documentation was not raised with the parties before the embargoed decision was circulated.
114. On 24 April 2026, Mr Ijezie made written submissions as to the application for late admission of documents, an application for permission to appeal and on costs. As to the documents, it is stated that the application meets the applicable tests in Denton & others v TH White Ltd & Ors [2014] EWCA Civ 906 and Ladd v Mashall [1954] EWCA Civ 1; that (i) the evidence could not have been obtained with reasonable diligence for use at the final hearing; (ii) the evidence would probably have an important influence on the result of the case; and (iii) the evidence is believable, credible and incontrovertible. Again, it was emphasised that the Respondent was under a duty to disclose the documents, given their omission by the Applicant in extremely stressful circumstances.
115. At the oral hearing, Mr Ijezie apologised for failing to submit the documents now available that should have been filed earlier. He had already explained the circumstances and candidly accepted that he did not recall asking the Applicant for them prior to receipt of the embargoed decision. He relied on the personally stressful circumstances in early April 2025 after the Applicant arrived at Heathrow for the omission.
116. On behalf of the Respondent, Mr Hopkin relied on his skeleton argument submitted shortly before the hearing commenced (only received during the hearing as it had not yet been processed on the Upper Tribunal’s filing system). The correct test in a Judicial Review context was that set out in Hysaj, R (on the application of) v Secretary of State for the Home Department [2014] EWCA Civ 1633, and not that set out in Ladd v Marshall, as confirmed in paragraph 35 of AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16. The test is as follows:
(a) The court should first identify and assess the seriousness or significance of the failure to comply with any rule, practice direction or court order,
(b) consider why the failure or default occurred (and whether there is good reasons for it), and then
(c) (if needed) consider all the circumstances of the case, so as to enable the application to be dealt with justly.
117. The Respondent’s main submission is that the delay in submitting the documents was serious and significant, with no reasonable explanation for it and a lack of proper explanation, nor any mitigating factors for the delay. In any event, the Respondent’s position is that the test for reopening the application set out in AIC is not met as (i) the IS.81 documents are similar to what was available and have only limited probative value; and (ii) the IS.82 is consistent with the description of the same given by Mr Stump and considered in the decision already. As such, the further documents could not alter the findings of the Tribunal.
118. At the hearing on 27 April 2026 I set out my preliminary view that despite the lateness of the submission of the documents and the failure of the Applicant to meet the relevant tests to do so (for the reasons below), there were sufficient exceptional circumstances to admit the documents given that the IS.82 in particular was a compulsory document that the Applicant was required to file evidencing the primary decision under challenge. Further, having considered the documents it was my preliminary view that the IS.82 in particular did not affect the reasoning or conclusion in the decision circulated in draft and in fact supported it; albeit the decision would have been drafted slightly different to refer expressly to this document if it had been available when it should have been. Neither party sought to dispute these preliminary views, nor to make any contrary submissions on the documents themselves or their relevance to the outcome of this application for Judicial Review. In these circumstances, I admitted the documents and set out my reasons below for the preliminary views reached.
119. First, in relation to the test for admitting the documents. I deal with this relatively briefly given the exceptional circumstances and importance of the Upper Tribunal having sight of the actual decisions under challenge, however late in the day, for them to be admitted in any event. The correct test to be applied is set out in the Respondent’s submissions, and above.
120. In short, the delay is significant and serious. The Applicant was required to have filed the documents now submitted with the original application for Judicial Review issued on 7 April 2025. This was a mandatory requirement and self-evidently relevant to include the substantive decision under challenge. The delay in over a year before the document was submitted, only after circulation of the embargoed decision, was egregious and lacks any cogent explanation.
121. As to the second consideration, the Applicant fails to establish any good reason for the failure to submit mandatory documents previously, not least because it could not possibly be said that the documents could not have been obtained earlier with due diligence. The assertion to the contrary by Mr Ijezie is patently false. His initial email stated that the relevant documents were conveyed by the Applicant to his uncle by whatsapp and then by email from his uncle to Mr Ijezie when the Applicant had been given them at Heathrow Airport in April 2025. Further, at the hearing Mr Ijezie stated that he did not recall every asking for the relevant documents, something which as a legal professional owing a duty to the Upper Tribunal in circumstances where the IS.82 in particular was a mandatory requirement to be filed with the application for Judicial Review was inexplicable. In this case, the Applicant had the relevant documents in his possession at all times since the they were given to him in April 2025 and on Mr Ijezie’s account, so did he. The failure in this case lies squarely with Mr Ijezie who with due diligence could and should have filed the required documents when the application for Judicial Review was issued or very shortly thereafter, there is no reason at all, let alone a good reason for his failure to do so.
122. Secondly, as to the substance of the documents, I deal primarily with the IS.82 as the remaining documents were already partially available (the material parts being evident on an otherwise incomplete copy of an IS.81) and/or are not directly relevant or different to those previously available.
123. The IS.82 is a notice of refusal of permission to enter the United Kingdom, which in this case stated as follows:
“You have sought entry to the United Kingdom on a Settlement Visa, with the visa number 024960464 issued on 08/01/2025. This visa gave you permission to remain in the United Kingdom until 18/09/2032 under the sponsorship of your Legal Guardian Alexander Katua Kakui. However, this visa was revoked on the 25/01/2025.
Home Office records states that on 27/01/2025 your Human rights claim for the application of the entry clearance stated above was refused and you were notified of this via email. During further interview you stated that your Email was […], while that does not match Home Office records you did confirm that your uncle received this email and forwarded it to yourself.
You have a pending out of country appeal regarding your settlement visa, by virtue of this it confirms that you received the original decision in regard to the revocation of your visa. Until a decision is reached your current leave for the United Kingdom is invalid and therefore you have no valid leave for the purpose you stated when you arrived in the United Kingdom.
You have not sought entry under any other provisions under the immigration rules and therefore, have no valid leave for the purpose you have stated as you require as a Kenyan national.
Part 9.14.1. Of the Immigration rules states that, permission to enter must be refused if the person seeking entry is required under these rules to obtain entry clearance in advance of travel to the UK, and the person does not hold the required entry clearance.
I therefore refuse you permission to enter the United Kingdom.
This decision does not carry an Administrative Review and removal directions will now commence.”
124. The decision is entirely in accordance with the description of its contents in the written statement of Mr Stump set out in paragraph 66 above and is consistent with the findings and reasons reached in the draft decision that there had been a grant of ILE on 8 January 2025, which was revoked on 25 January 2025, the application was then refused on 27 January 2025 and as such there was no extant ILE granted at the time of the Applicant’s arrival at Heathrow Airport and only a mistake in the return of his passport containing a vignette. In these circumstances, there is no need to reopen the application or revisit any part of the decision as circulated to the parties in light of the further documents.
Permission to appeal
125. The Applicant seeks permission to appeal on ten grounds which I deal with in turn below.
126. First, the Upper Tribunal erred in law in making irreconcilable findings as to the existence of a lawful and communicated grant of ILE, erring in the conclusion that there was no valid ILE on arrival at Heathrow contrary to the earlier finding that a valid decision to grant ILE had been made on 8 January 2025, further to which a vignette was printed and returned to the Applicant. The Upper Tribunal failed to identify a lawful mechanism by which the grant ceased to exist prior to arrival. Further, the Upper Tribunal failed to properly consider the Applicant’s case that the refusal of ILE on 27 January 2025 was itself issued in error at a time when a valid grant had already been made; erred in considering the Applicant’s subjective expectation in relation to the vignette and the absence of any written statement from the Applicant about it.
127. This ground does not identify any arguable error of law and amounts to no more than disagreement with the findings made as to the sequence of events, in which a valid decision was made on 8 January 2025, which was revoked on 25 January 2025 prior to any communication to the Applicant and permissible as an administrative correction without requiring a specific legal mechanism. The application was then outstanding and a new decision refusing it was made on 27 January 2025, with no arguable basis upon which it could be found that that decision was a mistake, for the reasons primarily set out in paragraphs 60 and 63 of the decision above.
128. Secondly, the Upper Tribunal erred in law in mischaracterising the grant and communication of ILE as an administrative mistake and misapplied the decision of YC, which required prompt rectification and absence of consequential reliance; neither of which were present on the findings made. Further, that the Upper Tribunal erred in relying on the CRS records which were inconsistent, unclear and failed to provide any reliable evidence of revocation, cancellation or withdrawal of ILE on 25 January 2025.
129. This ground does not identify any arguable error of law and amounts to little more than disagreement with the interpretation of the evidence in the CRS records, which, contrary to the ground of appeal, was sufficiently clear and identified in particular a revocation on 25 January 2025 (the wording not indicating a prospective revocation). Although there were missed opportunities to identify the mistake in issue of the vignette, the error was still rectified promptly once identified and promptly even from the earlier date on which it was printed.
130. Thirdly, the Upper Tribunal erred in law in failing to give legal effect to the communication of the ILE grant by the vignette on 3 April 2025 and unlawfully relied on uncommunicated internal case notes.
131. This ground of appeal is unarguable and fails to engage with the findings and reasons as to why the vignette did not communicate a valid ILE grant when the Applicant’s passport was returned to him on 3 April 2025.
132. Fourthly, the Upper Tribunal failed to engage with the statutory suspension of leave to enter on the IS.81 which can only have been used if there was extant leave and relied on circular reasoning by reference to the IS.82 refuse of permission to enter.
133. For the reasons given in paragraph 65 of the decision above, it is unarguable that the IS.81 suspension of permission to enter/remain takes either party’s case any further given it amounted to no more than a holding position at the point of the Applicant’s arrival with a vignette creating a prima facie case for permission to enter which required investigation, following which the position was clarified that it was not a valid vignette.
134. Fifthly, the Upper Tribunal erred in treating the port of entry enforcement decisions or directions as a rectification and/or cancellation of a communicated grant of ILE. The Upper Tribunal failed to consider whether the IS.82 purported to revoke ILE, identified any statutory power to do so, or complied with any procedure capable of lawfully withdrawing an existing grant of ILE and the IS.82 could not in any event have done so given the Applicant’s detrimental reliance on the extant ILE.
135. This ground of appeal misunderstands the Upper Tribunal’s decision and is not an arguable error of law. There was no finding that the IS.82 (even once provided and considered) revoked or cancelled a grant of ILE, to the contrary, the finding was that ILE had already been revoked on 25 January 2025 and replaced with a refusal of ILE on 27 January 2025 which was communicated to the Applicant. The rectification was in relation to the vignette and separate to the IS.82 which on its face was a freestanding decision to refuse entry as the Applicant had no extant ILE on arrival at Heathrow.
136. Sixthly, the Upper Tribunal erred in failing to properly engage with the Applicant’s core case that the refusal of ILE on 27 January 2025 was issued in error and instead determined the claim on a basis not advanced by the Respondent that an alleged mistake of ILE could be rectified at port by enforcement action.
137. This ground of appeal is unarguable and also rests on the same misunderstanding of the decision and reasons identified in relation to the fifth ground of appeal. There was no suggestion of or finding that the IS.82 rectified a mistake in a grant of ILE, it did not and could not have done, that happened on 25 January 2025 followed by a refusal of ILE on 27 January 2025. There was no contrary case advanced by the Respondent. The error was the return of the Applicant’s passport with a vignette which should either not have been printed and affixed to his passport at all (the Respondent’s case) or should have been spoiled prior to it being returned as it did not at that date (3 April 2025) reflect any extant decision to grant ILE. There was no evidence to support the refusal decision of 27 January 2025 being a mistake, to the contrary, clear reasons for refusal were given by reference to the requirements of the Immigration Rules and the decision has given rise to a right of appeal accepted as valid by the First-tier Tribunal.
138. The seventh ground of appeal is that the Upper Tribunal erred in using circular reasoning to dismiss a freestanding irrationality challenge, which was not parasitic on the Applicant holding valid ILE.
139. This ground of appeal is unarguable. There was no distinct basis upon which the Respondent could have been found to have been irrational in refusing entry to a person who required permission to enter the United Kingdom but who did not have it – that is a mandatory ground of refusal under the Immigration Rules. The Applicant did not submit at any time that even absent ILE, the Respondent acted irrationally.
140. The eighth ground of appeal is that the Upper Tribunal erred in law in dismissing the legitimate expectation claim without fully engaging with the distinct substance of such a claim, which did not rely on the Applicant having extant ILE on arrival, but whether there was a clear and unambiguous representation that the Applicant was entitled to rely upon. Further, the Upper Tribunal erred in treating the earlier refusal decision as negating any legitimate expectation arising from the vignette, which had the character of a contract and erred in failing to determine whether frustration of the expectation would be so unfair as to amount to an abuse of power by the Respondent. Finally, the Upper Tribunal erred in introducing a requirement of the Applicant’s reliance on the vignette not being reasonable without checking its validity before travel.
141. This ground of appeal is also unarguable. The dismissal of the legitimate expectation ground did not rely on the outcome of the earlier grounds of challenge, it simply referred back to the findings and reasoning already set out in other grounds which was applicable to the decision that there was no clear and unambiguous representation of valid ILE by the vignette taking into account all of the circumstances. It is not arguable that there was any additional requirement of reasonableness, it was simply a reflection of consideration of whether the Applicant was entitled to rely on the vignette. The additional points raised in this ground of appeal in relation to a vignette amounting to a contract and an abuse of power were not relied upon by the Applicant before the Upper Tribunal and can not therefore establish an arguable error for failure to address them.
142. The ninth ground of challenge is that the Upper Tribunal erred in law in dismissing the Applicant’s challenge on grounds of procedural fairness on the basis that he was not denied meaningful contact with family and effective access to legal representation.
143. This ground of appeal in part relies upon Mr Ijezie’s own lack of understanding as to the need for a valid letter of authority to. In any event, it is unarguable that there was a denial of practical or meaningful access to legal advice in circumstances where there was in any event extensive correspondence between Mr Ijezie and the Respondent (which was not disputed and upon which no further evidence was necessary, it spoke for itself); and following the required letter of authority, an application for bail and for urgent interim relief was made. The final point that the Upper Tribunal failed to consider the swiftness of removal and actual removal when the flight was on the ground following receipt of the injunction can not be an arguable error of law in circumstances where the Applicant did not have permission to pursue a challenge for breach of injunction; nor had it been established that there was a breach (which would depend on when the flight pushed back, not when it actually took off).
144. The final ground of appeal is that the Upper Tribunal erred in dismissing the Applicant’s challenge on the grounds of Article 3 and 8 of the European Convention on Human Rights. This ground is wholly unarguable, the Applicant simply failed to establish, in law or in fact, that either Article 3 or Article 8 was even engaged in these circumstances.
145. For these reasons, I refuse permission to appeal on all grounds.
Costs
146. The Respondent’s position on costs is that there is no basis not to follow the usual rule that costs follow the event such that the Applicant is liable for the Respondent’s reasonable costs. However, the Respondent recognised that there were aspects of her costs which should not be recoverable (including any costs associated with the application for urgent relief which was success and costs of applications for extensions of time) and aspects of her conduct in these proceedings, such as the late evidence shortly before the hearing, that justified a reduction in costs to be awarded. At the hand-down hearing on 27 April 2026, Mr Hopkin (then representing the Respondent as Mr Anderson was unavailable) proposed the Respondent be awarded 50% of her reasonable costs of defending this claim.
147. On behalf of the Applicant, Mr Ijezie submitted that the Upper Tribunal should exercise its discretion to depart from the usual rule that costs follow the event to either order the Respondent to pay the Applicant’s costs in full, or in the alternative, to make no order as to costs.
148. At the hearing on 27 April 2026, Mr Ijezie set out the basis for his application for costs as follows. First, that the Respondent’s conduct before the application for Judicial Review was issued should be taken into account, to recognise that the Respondent’s conflicting decisions were the source of the confusion and need for legal proceedings at all. Secondly, that the Respondent should not be entitled to recover any costs in relation to the application for interim relief which was granted, nor for her applications for extensions of time which followed her own conduct and were not relevant to the substantive issues in the case. Thirdly, Mr Ijezie relied on what he described as the extraordinary events of 4 April 2025 and the personal stress caused to him at this time, including the need to be working through the night and in the very early hours of the morning. Fourthly, although the application was dismissed on all grounds, the Respondent in fact lost in substance on the main case advanced by her. Finally, the Respondent breached her duty of candour in failing to preserve and/or disclose relevant documents and in the late submission of evidence just before the hearing.
149. In this application for Judicial Review, there are numerous examples through the history of proceedings of both parties failing to meet procedural requirements and deadlines. Neither party has entirely fulfilled its obligations to assist the Upper Tribunal in the determination of the application. Mr Ijezie’s submissions on costs failed entirely to recognise that such failings did not only go one way and criticism can fairly be made of conduct on both sides, such that the Respondent’s conduct alone is not sufficient to justify a departure from the usual cost rules. The remaining points raised by Mr Ijezie did not identify relevant matters for consideration as to the exercise of discretion in costs, focusing on the substance and merits of the application (which had already been determined wholly in the Respondent’s favour) and on matters arising before the application was even issued. Mr Ijezie’s further reliance on personal inconvenience and stress was wholly inappropriate and irrelevant.
150. In all of the circumstances, there is no reason to depart from the usual costs rule for the Respondent to be paid her reasonable costs of defending the application. However, for the reasons readily accepted by the Respondent, a reduction in the same is fair to reflect difficulties in the case and matters upon which costs should not, as a matter of principle, be recoverable. I consider a 50% reduction to be entirely reasonable for this purpose and make the order in those terms.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Peter Khuwailid Kukui
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Jackson
HAVING considered all documents lodged and having heard Mr C Ijezie, Solicitor-Advocate at EcoM solicitors, for the Applicant and Mr J Anderson of Counsel, instructed by GLD, for the Respondent at a hearing on 20 January 2026.
AND HAVING heard Mr C Ijezie, Solicitor-Advocate at EcoM solicitors, for the Applicant and Mr R Hopkin of Counsel, instructed by GLD, for the Respondent at the hand down hearing on 27 April 2026.
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The Order of Mr Justice Butcher dated 5 April 2025 prohibiting the Respondent from removing the Applicant from the United Kingdom is hereby discharged.
(3) The Applicant to pay 50% of the Respondent’s reasonable costs of defending this application for judicial review, to be assessed if not agreed.
(4) Permission to appeal is refused for the reasons in the attached judgment.
Signed: G Jackson
Upper Tribunal Judge Jackson
Dated: 27 April 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 30/04/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2025-LON-001050
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
27 April 2026
Before:
UPPER TRIBUNAL JUDGE JACKSON
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
PETER KHUWAILID KAKUI
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr C Ijezie, Solicitor-Advocate
(instructed by EcoM Solicitors), for the Applicant
Mr J Anderson of Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing date: 20 January 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Jackson:
1. In this application for Judicial Review, the Applicant challenges the Respondent’s (i) decision to refuse the Applicant entry to the United Kingdom dated 4 April 2025; (ii) decision to remove the Applicant from the United Kingdom dated 5 April 2025; (iii) removal of the Applicant on 5 April 2025.
2. The central issue in this application is whether the Applicant held valid Indefinite Leave to Enter (“ILE”) by means of a vignette affixed in his passport, or whether this had been issued in error following a decision to refuse his application for the same. The Applicant was granted permission to apply for Judicial Review on five out of the six grounds originally pleaded (permission having been refused on ground 3) which in various ways relate to this central issue; the Respondent’s actions and decisions which surrounded it and which have to be viewed in light of that central issue.
3. Shortly prior to the hearing, the Respondent served further evidence which was in part said to be disclosure, in part an omission of documents previously that were referred to in the Detailed Grounds of Defence (but not filed and served with that document) and in part a further written statement which corrected one already filed. Whilst this was opposed in principle by the Applicant on the basis that there was no good reason for its lateness and it could give rise to unfairness, Mr Ijezie accepted that he was able to deal with the material and respond to it in oral submissions as needed. In these circumstances and where the claim involved some degree of factual dispute about the status of decision-making, the additional documents were admitted such that this application could be decided on the best available and most accurate information.
Factual Background
4. The Applicant is a national of Kenya, born on 14 November 2006, who applied on 5 November 2024 for ILE the United Kingdom to join his uncle, Mr Alexander Katua Kakui (who is present and settled in the United Kingdom) pursuant to paragraph 297(i)(f) of the Immigration Rules. The history of what followed in terms of the Respondent’s decision-making is in dispute and I return to the detail of the internal records below. So far as the Applicant was aware from communication at the time, the application was refused on 27 January 2025 and subsequent to service of that decision, he lodged an appeal against it to the First-tier Tribunal (HU/52750/2025)1.
5. On 1 April 2025, the Applicant was informed by VFS Global that his passport was ready for collection and when he collected it on 3 April 2025, it was found to contain a vignette valid from 8 January 2025 to 18 September 20322 of type D “Settlement to join/acc relative AK Kakui” with “indefinite leave to enter the UK” typed in the observations section.
6. The Applicant travelled to the United Kingdom on 4 April 2025 and on arrival at Heathrow Airport, his permission to enter was suspended. He was detained and served with removal directions on 5 April 2025, for removal to Kenya on that date, on the basis that he did not hold valid leave to enter the United Kingdom. The Applicant sought and obtained an injunction against his removal from the High Court, but by the time notice was received of this by the Respondent the plane had already pushed back and the Applicant remained on the flight.
7. The Applicant arrived at the airport in Nairobi, Kenya, around 4am local time on 6 April 2025. His passport was withheld by Kenya Airlines until he paid the cost of his flight for the enforced removal back to Kenya, despite removal costs being a liability for the airline pursuant to their obligations under the Immigration Act 1971. The Respondent had agreed to return the Applicant to the United Kingdom, but the first flight opportunity to do so was missed as the Applicant’s passport was withheld by the airline (released only after the Applicant’s uncle paid for the flight from Heathrow to Nairobi).
8. The Applicant was returned to the United Kingdom, arriving on 7 April 2025, following which he was released on bail on 8 April 2025 and has remained in the United Kingdom to date.
Detailed chronology
9. The following chronology is taken from the documents available to the Upper Tribunal as at the date of hearing, with reference to the source of the documents where appropriate and using UK time unless otherwise stated. Not all correspondence is set out in full, or at all in the following chronology, only the key parts relevant to determination of this claim.
5 November 2024 Application for ILE made, further to which payment was made on 19 November 2024 for the application, with biometric enrolment and checks completed on the same date. The application was then acknowledged on 22 November 2024 and further checks on travel documents and PNC were undertaken the following day, as was a request for a TB certificate. All documented on the CRS record.
8 January 2025 In the first entry of this date, at 13:01:12, ‘pknowles’ (the ECO) added an entry type ‘Issue of Visa (Revoked)’ which in the notes section stated:
“Details of enrichment activity were material in decision to issue visa Details of interview were not material in decision to issue visa Applied under 297 of the Immigration rules Sponsor: Alexander Katua Katui 3/5/1981 – GBR ppt seen and noted Rose Adhiambo Mugenya Katua Ops mandate checks conducted and in date LAL: No Suitability: MET No adverse UK immigration history or criminal record noted Suitability met Application was paid for on 5/11/2024 making the applicant 17 at the time of application Relationship: St John Tala High School fee invoices for 2021-2022-2024. Birth cert seen for applicant born 14/11/2006 registered 22/12/2015 9 yrs after birth HO search for mother and father on birth cert no results found Death cert for apps mother – died 31/7/2016 – registered 3/11/2016 Photos of app and sponsor tougher Republic of Kenya Children’s court consent order states Alexander Katua Kakui appointed as a legal guardian of minor Peter khuwalid Kakui on 27/06/2022 Money transfter slips seen sent to applicants grandmother with whom they live, grandmothers name seen on birth cert for sponsor and apps mother – satisfied related by way of apps birth cert, apps mothers birth cert and sponsors birth cert showing mother and apps grandmother to be the same Money transfer slips to apps grandmother in support of apps schooling and upkeep Previous visit to the UK to stay with sponsor Applicants previous visa visit states he was living with his grandparents in 2022 despite the above court order I am satisfied the requirements of 297 are met Maintenance: MET NHS wage slops seen in the name of Rose Katua shows basic pay of … Bank statements and wage slips seen and noted in support of this Sponsors partner is employed by the NHS and band statements shows council tax payments out Sponsor has 2 children as listed in application and previous vaf 142.25 […] for app spx and all children/partners required min per week […financial calculations set out …] Met Accommodation: MET Land registry seen and noted No mortgage TB certificate: MET TB cert seen expiry date 6/7/2024.
In the second entry of the same date, at 13:01:52, ‘pknowles’ (the ECO) states as type ‘Refer – ECM’ and in the notes section states ‘297 issue to ECM review’. All documented on the CRS record.
15 January 2025 CRS entry raised by ‘nair_CIsiah’, type ‘EICW Vignette Printed’, notes state ‘Print Post: NAIR’.
25 January 2025 Two entries on the CRS record raised by ‘dclaxton’ (ECM) show initial ECM review – overturn balance of probabilities (with notes relating to Applicant’s father’s whereabouts) and a type ‘Revoke Decision’.
27 January 2025 Multiple CRS entries on this date raised by ‘mwragg’ (ECO) show further checks undertaken and type ‘Local Refusal (Revoked)’, with a right of appeal; then revoked as refused in error and discussed with ECM; followed by a local refusal and right of appeal.
27 January 2025 Respondent’s refusal of entry clearance application on the basis that the Applicant did not meet the requirements of paragraph 297(1)(f) of the Immigration Rules (none of the other parts of 297(1) applying). The Respondent noted that the Applicant’s birth certificate named his father but there was no further reference to him, no information as to contact with him and that the letter of support stated that the Applicant would benefit from the family setting in the United Kingdom as he was currently living with aged and retired grandparents.; but the Respondent noted there was no evidence of the Applicant living with grandparents or that they were unable to care for him. The Respondent was not satisfied that there were serious and compelling family circumstances which would make the Applicant’s exclusion from the United Kingdom undesirable.
28 January 2025 Refusal decision dispatched to the Applicant.
21 February 2025 Applicant lodged an appeal to the First-tier Tribunal against the Respondent’s refusal. The first directions in relation to the appeal were issued on 14 May 2025.
1 April 2025 Email from VFS UK Kenya notifying the Applicant that his passport was ready for collection.
4 April 2025:
4pm Applicant arrives at Heathrow Airport
5:15pm Respondent’s notice to the Applicant that (i) he was liable to be detained under paragraph 16(1A) of Schedule 2 of the Immigration Act 1971 pending completion of his examination and pending a decision on whether to cancel permission to enter; (ii) his permission to enter/remain under paragraph 2A(7) of Schedule 2 to the Immigration Act 1971 was suspended; and (iii) his passport, identity card or travel document had been retained.
5 April 2025:
00:24am Respondent’s email requesting letter of authorisation from the solicitors before information is released. A letter of authority was returned, but not signed by the Applicant (completed by his uncle and therefore not valid).
00:55am Respondent’s email stating that the Applicant does not have any knowledge of requesting a representative to act on his behalf.
1:06am Email from the Applicant’s solicitors that the Applicant must be very anxious and of course he knew that they were his solicitors. A request was made for him to speak to his uncle.
1:46am Email from Respondent stating that the Applicant was asked about any representative and stated that he has no knowledge of anyone acting on behalf of him on this matter. The Applicant had not spoken to his uncle but is fully aware that he can make a phone call if he wishes to.
1:58am Email from Applicant’s solicitors requesting the Applicant be provided with a phone to call his uncle.
2:29am Email from Respondent confirming that the Applicant can not keep his personal phone, but has been told that he can make a phone call if he wants to.
2:57am Email from the Applicant’s solicitors noting the Applicant’s uncle has been waiting for the Applicant since 4pm the day before and unable to communicate with the Applicant. It is stated that the Applicant is obviously in shock, his uncle is worried about his mental health and a doctor is requested to check this. Further, that the Applicant knew solicitors made the entry clearance application for him so it is not normal for him to say he is unaware of anyone acting.
3:24am Email from the Respondent stating:
“We have checked on Mr Kakui at 3am, he was sleeping and no issues were reported to us. We were further advised by the holding facility that Mr Kakui has spoken to his uncle, and he is fully aware that he has access to a phone.
We will ask him again if he wishes for you to act on his behalf which is all we can reasonably do.”
3:38am Email from the Respondent stating:
“We have just spoken to Mr Kakui, he told us that he has spoken to his uncle, he confirmed that he has his uncle’s number and that his uncle also has the number of the holding facility. He also confirmed that he knows that he can use the phone whenever he wishes.
We asked him if he has sought to have a solicitor acting on his behalf and he told us no. if this is not accurate, we suggest you speak to his uncle. We can only take what is said by the passenger.”
7:08am Email from the Applicant’s solicitors requesting a doctor to check on the Applicant’s mental health and to provide him with a phone to contact his uncle (number given).
7:59am Email from the Respondent to the Applicant’s solicitors which stated:
“As per our previous correspondence, we have spoken to Mr Kakui, he told us that he has spoken to his uncle, he confirmed that he has his uncle’s number and that his uncle also has the number of the holding facility. He also confirmed that he knows that he can use the phone whenever he wishes. We can also confirm that Mr Kakui is currently asleep following a holding room check at 7:30am.
We asked him if has sought to have a solicitor acting on his behalf and he told us no. We have received no signed letter of authority to confirm that you are acting on behalf of Mr Kakui so actions that we undertake will be limited on your behalf.
We have also witnessed no sufficient cause for concern that would warrant a port medical inspector to undertake a mental health assessment for Mr Kakui and will not be undertaking this at your behest, again without a signed letter of authority actions that you request will be dealt with at a limited capacity.”
9:03am Email from the Applicant’s solicitors stating that last contact between the Applicant and his uncle was at 8pm the night before, prior to the Applicant’s phone being confiscated. There is a request for examination by a healthcare professional and details about solicitors being on record for the Applicant.
10:13am Respondent’s email to the Applicant’s solicitors that the letter of authority from his uncle dated in October 2024 was null and void as the Applicant is now an adult and his uncle’s legal guardianship ceased on 14 November 2024. A blank letter of authority had been provided to the Applicant and a completed version was required to communicate with the solicitors. The email also included:
“The letter that you provided regarding Visa collection, we are aware that the visa was revoked and that the revoked notification was served on Mr Kakui’s Uncle, Mr Alexander Kakui, hence the decision appeal that was lodged by yourselves on 28 February 2025.
…
Regarding the health of Mr Kakui whilst detained at port, you have stated he requires a mental health assessment in a previous email. To reiterate, we have not viewed or experience any concerns that warrant a mental health assessment whilst he has been detained at port. You have now stated that him sleeping until 7:30am warrants a medical professional to examine him. Given that Mr Kakui was spoken with at 01:50am following your communications overnight, it would be reasonable that he may still be asleep 5 hours 30 minutes later on.
To confirm, we have spoken with Mr Peter Kakui here this morning and he is aware that he has his uncles contact details, has access to a phone that he can use and we have provided contact details for the holding room to Mr Kakui’s uncle and our holding room have confirmed that Mr Kakui’s uncle has not contacted them to speak with Mr Kakui.”
12:03pm Signed letter of authority by the Applicant provided by his solicitors to the Respondent. There followed correspondence in relation to Mr Ijezie’s registration and place of work as a solicitor as he was not publicly recorded as working for EcoM solicitors.
… Respondent’s notice of removal under section 10 of the Immigration and Asylum Act 1999 for removal at 6:25pm to Nairobi on 5 April 2025.
1:56pm Email from the Respondent stating that the Applicant is not suitable for immigration bail and removal directions will remain in place. The message stated: “Your client has no grounds for entry to the United Kingdom as does not hold a valid visa or entry clearance for his stated reason for entry.”. The same information was repeated in a further email at 2:13pm.
… Injunction granted for a stay on removal of the Applicant.
… Applicant removed on flight from Heathrow to Nairobi. Exact time unknown, but somewhere around 6:30pm.
6 April 2025:
2am Applicant arrives at Jomo Kenyatta International Airport, Nairobi, Kenya.
9:01am Respondent’s email confirming the Applicant will be brought back to the United Kingdom and request for his solicitors to liaise with him to find a suitable date and time for the flight.
1:03pm Email from the Respondent with flight itinerary for the Applicant’s return to the United Kingdom.
2:35pm Email from the Applicant’s solicitors stating that Kenyan Airways is refusing to release the Applicant’s passport until he pays them $800 enforced return flight ticket. There followed various correspondence about payment links for the same.
8:01pm Respondent communicated that they would not pay the flight cost for the Applicant’s return to Kenya.
8:29pm Respondent forwarded the request for payment of the flight cost by Kenya Airlines to the Applicant’s uncle who paid the sum requested.
9:10pm Applicant missed the flight departing Nairobi at this time which the Respondent had booked him on to due to issues with the flight cost and return of his passport which had not been resolved in time.
9:30pm Applicant’s solicitors’ email to the Respondent confirming that the Applicant’s uncle paid for the flight from Heathrow to Nairobi but his passport was not released in time to catch the flight. It was said that “The 18 year boy is crying and devastated. He has not had bathe or shower.” and a request was made for the 9:05am flight the next morning to be booked.
10:01pm Respondent’s email to the Applicant’s solicitors, which included:
“Thank you for helping us with the arrangements for bringing your client back to the UK. We have been working through the afternoon and evening to persuade Kenya Airways to return the passport, but unfortunately, they will not budge. There is no lawful basis for Kenya Airways to hold hostage to a passport, which ultimately belongs to the Kenyan government. Border Force, as a matter of principle, considers that removal costs are a liability for the airline in accordance with their obligations under the Immigration Act 1971. With advice from seniors, we will not be paying this “bill”. Unfortunately, this means for the moment the arrangements we put in place this evening have fallen through. I am afraid you will need to advise your client that the flight tonight cannot go ahead.
Our intention is to pick this up tomorrow when Home Office teams in Kenya will be available. We will keep you informed of progress. …”
7 April 2025
9:01am Email from the Respondent confirming that a booking will not be made for the Applicant for that morning’s flight to Heathrow: “This is because Mr Kakui’s visa is currently not valid, and the necessary visa waivers are not yet in place with the airline and will not be in time to ensure a trouble-free check-in/departure – which could result in Mr Kakui being denied boarding.” Various emails followed from the Applicant’s solicitors chasing flight booking details.
7:45pm Email from the Respondent containing details of the return flight to Heathrow; which the Applicant took and returned to the United Kingdom.
8 April 2025 Applicant granted bail on the basis that he is “liable to be detained pending examination because you are a person required to submit to examination/pending a decision to give, refuse or cancel leave to enter”. The conditions were for the Applicant to report on 22 April 2025 and that he was not permitted to work.
The Respondent’s written statements
10. In a written statement signed and dated 6 October 2025, Ian Blackwell, an Entry Clearance Manager (“ECM”) since October 2022 employed by the Respondent in Sheffield, sets out an explanation as to how the Applicant received his passport endorsed with a vignette with ILE despite the refusal of his application for the same on 27 January 2025. The statement is based on a review of the Respondent’s documentation and information from colleagues. Mr Blackwell was not the decision maker in this particular case.
11. The decision- making process for an application for ILE was set out as follows. First, the application is allocated to an Entry Clearance Officer (“ECO”), who makes a decision after biometric and criminality checks are completed. The decision is then referred to an ECM who reviews it and either upholds the decision or revokes it. All applications under paragraph 297 of the Immigration Rules are subject to mandatory review by an ECM. The term ‘revoked’ is not a legal term indicating a withdrawal of a final decision, but language used on the Respondent’s IT system, Proviso. If a decision is upheld, the application will be despatched.
12. If a decision is revoked, the ECM will email the ECO confirming the rationale for the revocation and there is an expectation that the application will be reconsidered within 24 hours, normally by the same ECO but if unavailable, by the duty ECO. The new decision will again be sent to the ECM to review. This is all part of the internal decision-making process and an applicant is only informed once a final decision has been made.
13. In the present case, the ECO assessed the Applicant’s application and determined it should be issued on the basis that the requirements of the Immigration Rules were met. The application was issued on 8 January 2025 and sent to an ECM for review on the same day. Despite this, the Proviso system dispatched the decision on 15 January 2025, which should not happen when an application is set to ECM review, which it was here. The Proviso system should only automatically dispatch decisions that have been made after ECM review clearance.
14. Mr Blackwell identified that there have been technical errors before with decisions dispatched despite the application being set to ECM review. He estimated errors to have happened on fewer than 10 occasions for applications under paragraph 297 of the Immigration Rules and his experience of this happening has not affected an application as the other decisions were all upheld on review. Mr Blackwell emphasised that this is an automatic, not a manual process. The system developers deployed a fix to the IT system on 25 September 2025 which should remove or reduce the frequency of such technical errors.
15. After Proviso had dispatched the system, the Visa Application Centre (“VAC”) in Nairobi was notified, printed the vignette and attached it to the Applicant’s passport. The Respondent’s team in Sheffield was unaware of this so could not contact the centre to spoil the vignette – if they were aware, it would have been spoiled by writing on it.
16. On 25 January 2025, the ECM reviewed the decision of 8 January 2025 and revoked it. As an internal decision, this would not have been communicated to the Applicant. Mr Blackwell thought it likely that the Applicant would have received notification the application had been issued around 15 January, but copies of notification letters are not retained on the system and are no longer available for this Applicant.
17. The ECO reconsidering the application refused it on 27 January 2025, which was sent to the Applicant the following day. In this case, it was a different ECO to the person who considered the application first, presumably because the original ECO was not available.
18. The VAC would also receive a copy of the refusal letter and Mr Blackwell could not explain why they did not contact the Respondent’s team in Sheffield to query why a vignette had been printed and a refusal issued. Any email correspondence that may have passed between the teams at this time is not recoverable due to a system change in April 2025.
19. If the Respondent is aware an application has been issued in error, the caseworking team would normally email them. Any errors are normally picked up at review stage but can be from elsewhere. If an email is needed, it will inform the applicant that they need to return their passport to the VAC; that the vignette is not valid for travel and they should not attempt to travel. No such email was sent to the Applicant in the present case, which Mr Blackwell describes as a casework/process error.
20. In a second written statement signed and dated 16 January 2026, Mr Blackwell responds to points made by the Applicant following his first statement and corrects information from his previous statement. As to the latter, further information had become available from technical advisors at ‘Cross Cutting Service Operations, Visa, Status and Information Services’. Mr Blackwell was unaware of the error previously made at the time and apologised for it.
21. Mr Blackwell clarified that the decision-making process for applications under paragraph 297 of the Immigration Rules was set out within an internal Home Office document named 2OPI 704: Updating our UKVI International approach to Review to Risk’ which refers to the ‘Review to Risk Matrix’ (a copy of both were provided). The latter stated that a full review was required for all settlement applications resulting in the issue of ILE.
22. The statement was accompanied by a copy of the Applicant’s record from the Respondent’s CRS system, which recorded the decision-making process, although the emails referred to therein are no longer available due to system changes. The records show the Applicant’s application was processed using the Proviso system. Upon further enquiries as to how that system operates at a technical level, Mr Blackwell was informed that the system does not automate notifications of an event to a VAC but that this is a manual manifest process to notify a VAC that a decision has been made and a vignette should be printed. This is done by administrative staff interrogating the Proviso system to identify such cases and then sending the necessary details to the relevant VAC, who then uses this information to produce vignettes via the Electronic Immigration Case Working system.
23. Mr Blackwell corrected his earlier statement that in fact no issue notification was sent to the Applicant and Proviso does not notify the VAC that an application can be printed. The VAC in Nairobi do not hold any information about the Applicant’s case as it is outside of their data retention policy. On investigation as to how the vignette was printed in this case, Mr Blackwell confirmed that the Applicant’s case was not manifested to the Nairobi VAC to printing by the operational team responsible for producing vignette print lists and it is unknown how or why it was printed in the absence of any further records from the VAC itself.
24. Mr Christopher Stump, a Border Force Officer at London Heathrow Terminal 4, who has been employed as such by the Respondent since November 2023, made a written statement dated 7 October 2025. Mr Stump was on duty and responsible for the Applicant’s case from 10pm on 4 April 2025. At that time, Mr Stump reviewed the Respondent’s records and determined that the Applicant had a settlement visa decision on 8 January 2025 but which remained subject to ECM review until it was revoked on 25 January 2025 (revoked being the term used on the IT system rather than a legal term) and the application subsequently refused on 27 January 2025. The Applicant confirmed the refusal letter had been received.
25. Mr Stump states that at 10:50pm on 4 April 2025, he prepared an IS82 refusal notice, which was countersigned shortly thereafter by a Higher Executive Officer. The reason for refusal was that the Applicant’s settlement visa had been revoked and although he had a pending appeal, the visa was invalid pending the outcome of that appeal. As such, the Applicant was a visa national without a valid visa for entry and was therefore subject to a mandatory refusal under paragraph 9.14.1 of the Immigration Rules. Mr Stump then sets out the process followed for setting removal directions and service of an updated IS82.
26. In accordance with section 8(1) of the Immigration Act 1971 and Schedule 2, the cost of removing a passenger without valid entry clearance falls to the carrier, so at the airline’s expense and is known as a Carrier Expense Removal. The airline is liable for the cost of detention and removal of a refused passenger to his original point of departure. There is nothing in the legislation to allow an airline to recoup the cost of a return flight from the Respondent or the passenger; although Mr Stump is aware of reports on occasion of airlines demanding reimbursement from a passenger.
Legal framework
27. The primary provision in relation to giving or refusing leave to enter is set out in section 4 of the Immigration Act 1971, so far as relevant, as follows:
4 Administration of control.
(1) 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), shall be exercised by the Secretary of State; and unless otherwise allowed by or under 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.
(2) The provisions of Schedule 2 to this Act shall have effect with respect to –
(a) the appointment and powers of immigration officers and medical inspectors for the purposes of this Act;
(b) the examination of persons arriving in or leave the United Kingdom by ship or aircraft …; and
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or remaining unlawfully; and
(d) the detention of persons pending examination or pending removal from the United Kingdom;
and for other purposes supplementary to the foregoing provisions of this Act.
…
28. As referred to above, there are additional provisions in Schedule 2 to the Immigration Act 1971 as to the exercise of those functions, which so far as relevant provide:
1(3) In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State, …
…
2(1) An immigration officer may examine any persons within subparagraph (1A) arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining –
(a) whether any of them is or is not a British citizen; and
(b) whether, if he is not, he may or may not enter the United Kingdom without leave; and
(c) whether, if he may not –
(i) he has been given leave which is still in force,
(ii) he should be given leave and for what period or on what conditions (if any), or
(iii) he should be refused leave; and
(d) whether, if he has been given leave which is still in force, his leave should be curtailed.
…
2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.
(2) He may be examined by an immigration officer for the purpose of establishing –
(a) whether there has been such a change in circumstances of his case, since that leave was given, that it should be cancelled;
(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or
(c) whether there are medical grounds on which that leave should be cancelled.
…
(7) An immigration officer examining a person under this paragraph may by notice suspend his leave to enter until the examination is completed.
29. The effect of entry clearance on leave to enter and the requirements for notice of a decision to be given to a person about a decision is contained in the Immigration (Leave to Enter and Remain) Order 2000, which so far as relevant provides:
2. Subject to article 6(3), an entry clearance which complies with the requirements of article 3 shall have effect as leave to enter the United Kingdom to the extent specified in article 4, but subject to the conditions referred to in article 5.
3.- (1) Subject to paragraph (4), an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or
(b) a statement that it is to have effect as indefinite leave to enter the United Kingdom.
…
4. (1) …
(2) …
(3) In the case of any form of entry clearance to which this paragraph applies, it shall have effect as leave to enter the United Kingdom on one occasion during its period of validity; and, on arrival in the United Kingdom, the holder shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom:
(a) in the case of an entry clearance which is endorsed with a statement that it is to have effect has indefinite leave to enter the United Kingdom, for an indefinite period; or
…
7.- (1) An immigration officer, whether or not in the United Kingdom, may give or refuse a person leave to enter the United Kingdom at any time before his departure for, or in the course of his journey to, the United Kingdom.
…
8ZA.- (1) A notice in writing –
(a) giving leave to enter or remain in the United Kingdom;
(b) refusing leave to enter or remain in the United Kingdom;
(c) refusing to vary a person’s leave to enter or remain in the United Kingdom; or
(d) varying a persons’ leave to enter or remain in the United Kingdom,
may be given to the person affected as required by section 4(1) of the Act as follows.
(2) The notice may be –
(a) given by hand;
(b) sent by fax;
(c) sent by postal service to a postal address provided for correspondence by the person or the person’s representative,
(d) sent electronically to an e-mail address provided for correspondence by the person or the person’s representative;
(e) sent by document exchange number or address; or
(f) sent by courier.
…
30. The Immigration (Leave to Enter and Remain) Order 2000 and Immigration (Notices) Regulations 2003 also sets out requirements for notice of appeal rights, the provisions of which are not necessary to set out in full.
31. The parties in the present case agree that there is no authority directly on point for the particular factual circumstances raised herein, namely that there are two different communications to an applicant with opposite results, one or other of which needs to be identified as the operative decision. The parties both refer to the cases of YC and Ram. Since the hearing, the Court of Appeal handed down its decision in R (on the application of YC) v Secretary of State for the Home Department [2026] EWCA Civ 285, to which I will refer rather than the decision of the Upper Tribunal (albeit that was upheld).
32. In outline, the background facts in YC are that he was in the United Kingdom unlawfully and sought to regularise his status here. The Respondent accepted that he was entitled to a grant of leave to remain on private and family life grounds, which would normally give rise to a period of leave of 30 months. However, when the decision was issued, it referred to the applicant being granted Indefinite Leave to Remain. The biometric residence permit which followed was for a period of leave of 30 months only and was therefore questioned by the applicant. The Respondent then retrospectively re-issued the decision around six weeks later referring to a grant of leave to remain for a limited period, which was then subject to an application for Judicial Review. There was no dispute in this case that the initial reference to Indefinite Leave to Remain was an administrative or clerical error and that the applicant had neither applied for, nor qualified for a grant of Indefinite Leave to Remain. Further, the applicant had not acted on nor relied on the initial letter in any particular way. The primary issue in that application was whether the Respondent had the power to correct the administrative error made in the original decision. The Court of Appeal found as follows:
62. Evident caution must obviously be exercised before recognising an implied power vested in a Minister of State in the discharge of their statutory functions. However, subject to the important limitations which I have discussed at §§78-79 below, I am satisfied that the UT did not err in concluding that the SSHD did indeed possess an implied power under the IA 1971 to withdraw the grant of ILR communicated in the First Letter, that grant having been made as a result of administrative mistake. My reasons may be summarised under five headings as follows:
i) The grant of ILR by the First Letter on 13 November 2023 was a manifest error. That error should reasonably have been immediately apparent to YC and his advisers, given that he had neither applied for ILR nor met the requirements of the Immigration Rules;
ii) The SSHD has a well-established implied power, frequently exercised, to withdraw immigration decisions adverse to an applicant. The position in relation to immigration decisions favourable to an applicant has been addressed in legislation (i.e., section 76 NIAA 2002 and Article 8AZ(2)(d) of the Immigration Order 2000). There is obviously no complete equivalence between the withdrawal of the two types of decision (i.e., adverse or favourable), particularly insofar as it affects status of the recipient and/or third parties; however, I see no reason in principle why any distinction should be drawn about the existence of the implied power. I would simply add that, in order to withstand challenge, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon;
iii) There is a clear public interest in ensuring that leave under the IA 1971 is granted (unless explicitly granted using powers outside of the Rules) only where the statutory and rules-based criteria are satisfied.
iv) The absence of express statutory provision for such a power does not preclude its existence; the power is incidental to, rather than an extension of, the statutory scheme;
v) Subject to the safeguards discussed below, common sense should prevail: an obvious administrative error should not be perpetuated merely because it was favourable to the recipient.
I take these points in turn.
63. (i) Obvious mistake. The circumstances in which any implied power may properly be invoked to supplement a statutory scheme are necessarily narrow. In this context, I suggest that the implied power to withdraw a favourable determination communicated as a result of a clerical error may be exercised only where the mistake is obvious, and its correction undertaken promptly. In the present case, it is clear that YC could not reasonably have expected to receive a grant of ILR, a status for which he had neither applied nor satisfied the requirements of the Immigration Rules. Grants of ILR outside the Rules are exceptionally rare. In that regard the mistake was obvious; the correction was effected straightaway.
64. As the UT rightly observed (judgment [49]/[51], see above) this was not a case in which the decision-maker mistakenly believed that YC was entitled to ILR and then discovered that he was not. We are concerned here with administrative error. In this regard, I wish to emphasis that the SSHD and her officials bear a particularly exacting responsibility to avoid mistakes of this kind, and they must be brought to account if they fail to take proper care in the discharge of their functions. Nonetheless, however robust the administrative processes, the possibility of human or technological error cannot be entirely excluded, even in decisions concerning ILR. The promptness with which the Secretary of State acts to correct an obvious error will often be material; the longer the delay, the more difficult it may be to justify withdrawal. Here, the correction (in the Second Letter) was issued approximately six weeks after the First Letter, and only some two weeks after the error had been brought to her attention. Had the purported grant of ILR generated consequences for YC or others, judicial review would have been available to challenge the exercise of the implied power and to ensure it remained within lawful bonds. No such circumstances arose in this case.
65. (ii) Power to withdraw adverse decisions. It is common ground that the SSHD possesses a well-established implied power, under the IA 1971, to withdraw and reconsider decisions which are adverse to a claimant. In Chichvarkin, the Divisional Court (Hooper LJ and Kenneth Parker J), relying on AS (Afghanistan) v SSHD [2009] EWCA Civ 1076; [2010] 2 All ER 21, held that the “administrative and procedural arrangements” referred to by Sullivan LJ include the withdrawal of a decision under appeal so that it may be reconsidered in light of new material. As Kenneth Parker J observed at [42], such arrangements “can fairly and properly include the withdrawal of the decision under appeal with a view to reconsideration in the light of facts and matters advanced during the course of the appeal.”
66. At [46] of Chichvarkin, the Divisional Court further noted that it is routine in judicial review proceedings (“practically an everyday occurrence”) for the SSHD to withdraw a challenged decision for reconsideration, sometimes leading to a favourable outcome for the claimant, but in many cases resulting in a further adverse decision for reconsideration, sometimes leading to a favourable outcome for the claimant, but in many cases resulting in a further adverse decision, albeit one addressing the claimant’s representations more fully. The Court rejected, at [48], the contention that withdrawal is permissible only where the SSHD accepts that the original decision was wrong, let alone unlawful. At [53], it affirmed the general principle that a decision-maker has an implied public law power to withdraw any statutory or prerogative decision, subject to public law principles, unless the power is expressly excluded. This approach was endorsed by Green J in R (Hafeez) v SSHD [2014] EWHC 1342 (Admin), who referred at [33] to “the pragmatic course of reconsideration.”
67. I recognise that there is obviously no complete equivalence between the withdrawal of an adverse decision and a favourable decision; the substance of the decision will affect the status of the recipient and/or third parties. That said, and subject to public law constraints (considered below), I see no reason in principle why any distinction should be drawn between the two types of decision when considering the existence of the implied power itself. In this case, of course, it is to be noted that the withdrawal of one erroneously favourable decision (granting ILR) was accompanied by the grant of a different favourable decision (granting LLR). I am sure that, to be effective, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon.
68. There are sound policy reasons, in my judgment, why the SSHD should possess (in addition to her powers under section 76 NIAA 2002 and Article 8ZA(2)(d) of the Immigration Order 2000) an incidental power to withdraw a decision granting or refusing ILR, or any other form of leave, which has been granted by administrative error. The ability to correct mistakes without resorting to judicial review promotes orderly administration and avoids outcomes, such as the unintended grant of ILR, which would otherwise stand despite being plainly unjustified.
69. (iii) Public interest: There is, of course, a strong public interest in clarity, finality and legal certainty in immigration decision-making, as in all areas of public law. However, there is an equally compelling public interest in ensuring that applicants for relief under the IA 1971 are granted only the status for which they lawfully qualify. It is a fundamental principle of the immigration system, as section 1 of the IA 1971 makes clear, that those who are not British citizens and do not have a right of abode “may live, work and settled in the United Kingdom by permission” (emphasis by underling added). An individual should not be permitted to retain an unintended and significant benefit, such as immigration status, arising from administrative or clerical error. While the line of authority following Ram establishes that a mistaken grant may nonetheless have legal effect, as the Upper tribunal observed, those cases do not address whether, or by what means, an obvious mistake may be corrected.
70. A further public interest, well illustrated by this case, lies in ensuring that public authorities possess the necessary power to discharge their statutory duties consistently and lawfully. Errors, whether human or technological, are inevitable; decision-makers should not be irrevocably bound by decisions that result from unintended clerical or administrative mistakes, particularly where those mistakes confer substantive rights that were never intended.
71. (iv) Parliament has not legislated; the power is incidental. …
72. In my judgment, the absence of an express statutory power to withdraw a grant of ILR issued through clerical error does not preclude the existence of an implied or incidental power to do so. It would, indeed, be unusual for Parliament to legislate specifically to address the consequences of human or technological error in administrative decision-making. …
73. An implied power to withdraw decisions enables the SSHD to correct errors without resort to judicial review. In the present context, it would allow an erroneous purported grant of ILR to be corrected, thereby avoiding the injustice of leaving an individual with a status for which they did not qualify. This reflects the nature of an incidental administrative power of the kind contemplated by Lord Sumption in New London College, where he recognised that the Secretary of State may exercise powers “reasonably incidental” to those expressly conferred.
74. I agree with the UT that none of the authorities cited, whether in the immigration context or the wider public law sphere, addressed the precise issue arising here. None holds that the SSHD lacks power to correct an obviously erroneous grant of ILR, nor that such a power is excluded. Equally, none suggest that the power invoked in this case is prohibited. I am also satisfied that Parliament cannot have intended section 76 NIAA 2002 to be a complete or comprehensive code of the circumstances in which a person’s ILR can be taken away; the power in section 76 was developed in response to particular policy imperatives, co-existing with the SSHD’s powers of deportation and administrative removal under the IA 1971. Moreover, as Mr Blundell has argued, each of the scenarios covered by section 76 involves deliberate action on the part of the recipient of ILR which justifies the SSHD terminating the leave. Express statutory intervention is necessary because the leave has been deliberately, an, on the face of it, correctly granted in the first place by the SSHD; subsequent events have occurred (or come to light, in the case of deception) which mean that the public interest demands that the SSHD act to take the leave away. The position is qualitatively different in the case of leave which has been notified by administrative error.
75. …
76. (v) Process and Common Sense. Although it may be said that Haddon-Cave J adopted too broad an approach in Chaudhuri at [46] regarding the scope of a public authority’s implied power to revisit and revoke any decision undermined by a fundamental factual error, I accept his observation at [47] that procedural form must not be allowed to triumph over common sense. That approach accords with the principles of proportionality and utility and, as he went on to note, aligns with the developing principle of good administration in public law, as recognised by Lord Sumption in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39 at [32].
77. … The suite of immigration authorities relied upon by the Appellant, Ram and the cases following it, address only the status or validity of mistaken grants. They do not consider, still less exclude, a public authority’s power to withdraw or correct an erroneously issued decision; in this regard the public law cases offer more support.
78. Limits on the implied power: The SSHD’s exercise of any implied power to withdraw a decision adverse to a claimant is constrained by established public law principles. It must not infringe the legal rights of others, including Convention rights, and must not be irrational, unfair, or otherwise incompatible with the general limits on administrative action (see Chichvarkin at [53]; Chaudhuri at [50]-[51]; New London College at [29]). The same constraints apply with equal force to the withdrawal of a favourable decision. Such a withdrawal is, by its nature, exceptional, highly fact-sensitive, and subject to close judicial scrutiny.
79. Both a grant and a refusal of leave carry consequences for an individual’s immigration status. However, a favourable decision typically has a more profound effect on a person’s settled expectations: it alters their legal and practical position, diminishes precarity, and enables the development of private or family life that may later underpin an Article 8 claim. These considerations underscore why any implied power to withdraw such a decision must be exercised sparingly and, if exercised at all, must (as I have indicated above) be exercised promptly.
33. The second case relied upon by the Applicant in particular is Ram. In outline the background facts were that the applicant first came to the United Kingdom in 1970 and remained until January 1974 in anticipation of employment and/or seeking permission to remain from the Home Office. He returned to the United Kingdom later in 1974 and told the immigration officer he had come to attend a wedding; following which his passport was stamped with leave to enter and remain indefinitely. The applicant travelled on the same passport into the United Kingdom twice in 1976 and once in 1977, when he was again given leave to enter and remain indefinitely. In the United Kingdom he set up a business until June 1978 when he was interviewed by Immigration Officers and arrested pursuant to section 16(2) of Schedule 2 to the Immigration Act 1971. There had been no misrepresentation by the applicant on arrival in the United Kingdom on any of the occasions and therefore as the Immigration Officer had not been misled, the onus was on the Secretary of State to show that the applicant was an illegal entrant. It was held not to be sufficient that the immigration officer had mistakenly stamped the passport of the applicant who did not fall within any of the categories of lawful entrant and the mistake did not vitiate the officer’s authority under section 4(1) of the Immigration Act 1971 to grant leave to enter. The applicant was held to be lawfully in the United Kingdom pursuant to the grant of leave to remain stamped in his passport.
Grounds of challenge
34. Before addressing each of the grounds in turn, I consider the Respondent’s overarching point that this application is academic save insofar as the Applicant seeks to claim damages for breach of Articles 3 and/or 8 of the European Convention on Human Rights; albeit he acknowledges that any claim for damages should be filed in the County Court and no actual claim for damages has been made to the Upper Tribunal. The Respondent’s position was based on the fact that the Applicant’s removal directions were cancelled, he has been re-admitted to the United Kingdom and will not be removed until the determination of his appeal against the refusal of his application for ILE. In these circumstances, there are no remaining issues for this claim to be pursued in the Upper Tribunal.
35. The Applicant’s appeal against the refusal of his application for ILE does not render this application for Judicial Review academic. The appeal will, if necessary, determine the merits of any refusal of ILE on human rights grounds and will, in the meantime, create a barrier to the Applicant’s removal from the United Kingdom and no more than that. The appeal will not determine whether there was a valid grant of ILE on 8 January 2025 or a valid refusal of the application for ILE on 27 January 2025; that can only be considered in the context of this application for Judicial Review on the grounds pursued in relation to the decisions made on 4 and 5 April 2025 (not challengeable by way of a statutory appeal at all) and there would be no valid (or even necessary) appeal at all if these proceedings determine that there was a valid grant of ILE on 8 January 2025.
Ground 1 – Unlawful decision to refuse entry and to remove the Applicant and unlawful removal in the absence of a decision to revoke the Applicant’s indefinite leave to enter
36. The Applicant claims that he was at all times in possession of a valid and extant/subsisting grant of ILE, validly made by an ECO pursuant to section 4(1) of the Nationality, Immigration and Asylum Act 2002 and communicated to him by means of the vignette in his passport, which itself superseded any refusal decision. There had been no lawful decision to revoke that leave pursuant to section 76 of the Nationality, Immigration and Asylum Act 20023. The Applicant’s case is that the Respondent’s refusal decision dated 27 January 2025 was issued in error and could not be construed as a revocation of the ILR evidenced in the vignette in the Applicant’s passport. Further, there was no communication to the Applicant that his vignette was not valid or that it should not be used for travel.
37. In relation to the Respondent’s internal processes for decision-making, these do not amount to a legal prerequisite to the validity of a grant of leave made and communicated under section 4(1) of the Immigration Act 1971 and as such a decision can not be rendered void if the internal allocation of functions was not followed in accordance with the decision in R v Secretary of State for the Home Department (ex parte Ram) [1979] 1 WLR 148. That is particularly so in this case where the factual matrix was very different and in the Applicant’s favour, he expressly made an application for ILE and had not used deception or fraud in doing so, contrary to the facts in Ram where that applicant had not made an application for the leave granted.
38. The Applicant distinguishes the case of R v Secretary of State for the Home Department (ex parte YC) JR-2024-LON-000850 on the basis that it was a fact sensitive decision predicated on the basis that there was an inadvertent grant which was promptly identified and that the error was clearly communicated to the applicant. In the present case, the Applicant received no such communication and it was entirely reasonable for him to rely on the vignette which was, on its face, evidence of unqualified ILE.
39. On behalf of the Applicant, Mr Ijezie emphasised that further to Mr Blackwell’s second written statement, there must have been a conscious human decision to include the Applicant’s details in a manual manifest for his vignette to be printed with ILE conferred. Little weight should be attached to the written statement that the Applicant’s details were not included on such a manifest when Mr Blackwell also confirmed that no records were available from the VAC or otherwise as to what happened. Mr Ijezie also invited me to draw an adverse inference from the Respondent’s failure to retain relevant documents despite the issue of litigation which should have ensured their retention regardless of system changes and regular data retention policies. A more general point was made as to whether the Respondent had properly complied with her duty of candour in this case.
40. Mr Ijezie submitted that the actions of the Respondent on 4 April 2025 and following after the Applicant’s arrival at Heathrow were also consistent with the Applicant’s claim that there was a valid grant of ILE on 8 January 2025 evidenced by the vignette on the basis that the first decision issued to the Applicant on 4 April 2025 was to suspend his permission to enter. If no valid decision had been made to grant ILE, there would be nothing to suspend and this could only have been done if there was a subsisting decision to issue ILE at the time of arrival.
41. As to what happened within the ECM review process, Mr Ijezie submitted that this was irrelevant as a valid decision to grant and notification to print the vignette had all been given by then. There was, in his submission, no need for a decision on 8 January 2025 to have been communicated to the Applicant to be valid and the vignette simply confirmed the decision. In any event, the CRS records could not be relied upon as it contains various unexplained inconsistencies. Including that it shows a decision had been made and ‘revoked’ but not pursuant to section 76 of the Nationality, Immigration and Asylum Act 2002, only described after the event as the terminology used in the IT system. There was further no explanation as to why the decision did not revert to the original ECO to reconsider as the Respondent said it should have done, which again shows the Respondent’s evidence and process lacks credibility.
42. Overall in relation to the first ground, Mr Ijezie stated that the Respondent should not benefit from her own mistakes and errors in handling of this application and decision-making and invited the Upper Tribunal to make a finding that the decision made to issue ILE on 8 January 2025 was a valid one and anything that happened after that (save for the printing of the vignette) was irrelevant. Mr Ijezie further characterised the Respondent’s internal review to risk processes as a ‘quality assurance review’ rather than a decision as such and which did not provide any legal basis upon which a decision already made could be reviewed or changed and in any event, the guidance was outwith the statutory scheme.
43. In summary, the Respondent’s case is that there was no valid issue of ILE to the Applicant and the vignette was printed in error. The ECO considered at first instance that ILE should be granted but had no authority to make a final decision pending review by an ECM, who in this case, concluded that ILE should be refused. That was entirely in accordance with the review to risk policy in place, which required a full review of any decision by an ECM before issue and there was nothing objectionable about that process, nor was it inconsistent in any way with section 4 of the Immigration Act 1971 or paragraph 1(3) of Schedule 2 to the same which provides for instructions to be given to officials. By the time the Applicant received the vignette, he was already well aware that his application had been refused, having received the decision and appealed against it. The case is distinguishable from earlier authorities where the only communication a person had was a putative grant of entry.
44. In these circumstances, it was entirely lawful and rational for the Respondent to refuse entry to the Applicant on arrival at Heathrow; particularly in circumstances where the refusal of his ILE was neither irrational nor unreasonable for the reasons given under paragraph 297 of the Immigration Rules.
45. Mr Anderson submitted that the only case law the parties had identified was not directly on point nor assisted greatly in determining the issues in this appeal because here there are potentially two decisions in play and the nub of the issue is which one is valid. The Respondent’s case is that only the 2nd refusal decision is valid because that is the only decision in which notice was given in accordance with the Immigration (Leave to Enter and Remain) Order 2000, the only decision which was communicated to the Applicant and a decision which was appealed to the First-tier Tribunal. Any decision on 8 January 2025 was not a final decision because it had not been taken in accordance with internal instructions requiring an ECM review (although Mr Anderson accepted in principle that an ECO had the power to make a decision to grant or refuse leave to remain) and had not been communicated to the Applicant, such that he had no expectation of a grant of ILE from it.
46. I asked Mr Anderson why the vignette itself was not considered as communication of a positive decision to grant ILE. He submitted that the issue was which was the operative decision in this case, or which is the valid decision, or which is the extant decision as it can not be the case that both a grant and refusal stand. The sequence of the decision-making was submitted to be important in this case. The CRS notes refer to consideration on 8 January 2025, which included a narrative on the requirements of the Immigration Rules but with no express consideration of whether there were compelling circumstances to make the Applicant’s exclusion undesirable. The printing of the vignette was then in error as it was not in accordance with the prescribed decision-making process (regardless of whether this was automatic or manual) even though the Respondent can not identify precisely how the error occurred. The ECM identified an error in what was analogous to an internal draft decision, which was then revoked, with a refusal (also revoked and then finalised) on 27 January 2025. The notice of refusal was on its face valid and complied with the relevant process and regulations as to notice. In these circumstances, the refusal is the only valid decision and the vignette does not operate to confer ILE over and above a correct refusal of the application. Mr Anderson submitted that a person such as the Applicant should have known the vignette was an error as he had received a detailed decision containing reasons for refusal against which he had an extant appeal and in any event, the vignette was not in those circumstances clear and unambiguous.
Discussion
47. To determine the lawfulness of the Respondent’s decisions on 4 and 5 April 2025 following the Applicant’s arrival at Heathrow, it is necessary to consider what decision(s) had been made and when prior to that, as well as the validity and effect of those decisions. I begin by setting out the features of the four main events in the history of the Applicant’s application for ILE prior to his travel to the United Kingdom: (i) the ECO consideration on 8 January 2025; (ii) the printing of the vignette on 15 January 2025; (iii) the refusal decision on 27 January 2025; and (iv) the return of the Applicant’s passport on 3 April 2025.
48. The Applicant’s case is that a valid decision was made on 8 January 2025 to issue him with ILE, whereas the Respondent’s case is that no such final or valid decision was made on that date to issue, only a later final decision on 27 January 2025 was made to refuse the application.
49. The only available information as to what happened on 8 January 2025 (at that time) is that contained in the CRS which shows two separate entries on 8 January 2025. The first includes detailed notes as to why the decision to issue was made, including indicating that various specific requirements (such as suitability, maintenance, accommodation and TB were all met) but in the decision type it states ‘Issue of Visa (Revoked)’. The notes section clearly indicates the ECO view that the application should be granted and sets out why, but the decision type indicates that any decision to issue had been revoked.
50. The Respondent states that ‘revoke’ and ‘revoked’ are non-legal terms used within the IT system as opposed to any revocation pursuant to section 76 of the Nationality, Immigration and Asylum Act 2002. Given its use elsewhere in the CRS records, including in relation to a refusal being ‘revoked’ it is accepted that this is an internal term on the system to remove a decision of any sort if a correction is required. It is not a legal revocation of a decision in the sense of section 76 of the Nationality, Immigration and Asylum Act 2002.
51. The second entry on 8 January 2025, less than a minute after the first, states that the type was ‘Refer – ECM’ and in the notes section stated only ‘297 issue to ECM review’.
52. The nature and timing of the entries suggests two possible explanations. First, that the ECO had initially thought to issue the grant on the basis that the requirements of the Immigration Rules were met, but then immediately revoked that decision on the basis that such a decision should not have been final but instead subject to a referral to an ECM for review, which there was then a referral for. Secondly, that the ECO had made a decision to issue the visa on 8 January 2025, also referred that decision to the ECM for review and that the system subsequently recorded that decision as revoked following the entry on 25 January 2025 by ‘dclaxton’ (the ECM) which refers to a type: ‘Revoke Decision’ and in the notes ‘Revoke after ECM review’. Again, this appears to be an administrative step within the decision-making process.
53. There is no statement from the ECO (or the ECM) as to what actually happened and no further records available. The written statement from Mr Blackwell gives some explanation as to the IT system used and the decision-making process; but does not give any explanation or information relevant to the specific point as to whether a decision made would later be amended to ‘revoked’ following subsequent activity.
54. The timing of the two entries on 8 January 2025, made less than a minute apart, may indicate a mistake was made and an immediate correction made to show the referral to an ECM rather than issue of visa. That explanation is supported by there being no evidence of any letter at that time (or any time later) to the Applicant communicating that his application had been granted, as would ordinarily be the case where a final decision had been made to do so. It is further supported by the process being in accordance with the internal guidance set out above, with a referral to an ECM in these circumstances being in accordance with both section 4(1) and paragraph 1(3) of Schedule 2 to the Immigration Act 1971 which sets out decisions which can be made by Immigration Officers (which encompasses both ECO’s and ECM’s) pursuant to instructions which are not inconsistent with the Immigration Rules. The review to risk instructions not being inconsistent with the Immigration Rules and setting out the internal decision-making process required, by whom, for applications under paragraph 297 of the Immigration Rules.
55. However, the alternative explanation that the ECO decision was validly made on 8 January 2025 and only later revoked by the ECM on 25 January 2025 is supported by two different points. First, if no final decision had been made on 8 January 2025 to issue a visa, there should be no decision at all to ‘revoke’, it would simply be a draft decision or view following which a final decision would then need to then be taken. Secondly, although the Respondent’s case is that it was a mistake that the vignette was printed on 15 January 2025; there is no explanation for how this mistake occurred given that the Respondent’s evidence is also that the Applicant’s details would have needed to have been included in a manual manifest for printing following a check on details on the system. The Respondent says that they were not included, but there is no evidence in support of this and it is unclear as to how that conclusion was reached when Mr Blackwell also states that there is no longer any evidence available from the period prior to April 2025 beyond what is recorded on CRS and nothing available from the VAC itself. The printing of a vignette by the VAC without being provided with the Applicant’s details to do so is perhaps more difficult to explain as a mistake.
56. The printing of the vignette on 15 January 2025 is consistent with a final decision having been made and recorded as made on 8 January 2025; only later revoked on 25 January 2025, which was some 10 days after the vignette was printed. There are two possible explanations for what the mistake was in the printing of the vignette. First, that it should not have been done at all because there was no final decision made on 8 January 2025, albeit entirely unexplained by the Respondent as to how such a mistake could have happened and without any relevant records having been retained which may have assisted. Secondly, the mistake could have been that the ECO should not have recorded a final decision on 8 January 2025 because it had not yet been through the ECM review process for such a decision to be issued. Again, there is no explanation at all from the ECO or ECM involved in this decision and Mr Blackwell’s written statement does not assist with any relevant information as he has been unable to identify the actual mistake. Both options are plausible on the evidence before the Upper Tribunal.
57. Overall, considering all of the factors and evidence set out above, I find that the ECO did make a decision to issue ILE to the Applicant on 8 January 2025, further to which a vignette was printed on 15 January 2025. On the Respondent’s case, which I accept, one or both of those things was a mistake and not in accordance with the guidance set out above, however, the important question that follows is what are the consequences of a mistake on one or both points.
58. The first issue is whether the ECO’s decision on 8 January 2025 to issue ILE was a lawful one within his or her power to do in accordance with section 4(1) of the Immigration Act 1971, or whether it was void for failure to follow the instructions given in light of paragraph 1(3) of Schedule 21 of the same Act. Both parties accept that in principle, an ECO can lawfully issue a decision to grant or refuse ILE following an application under paragraph 297 of the Immigration Rules, which must be correct and is in accordance with the decision-making process in the present case – it is the ECO who also made the decision to refuse and the only entries by the ECM were in relation to revoking a decision or reviewing it; not as the actual decision-maker.
59. In accordance with the decision in Ram, although on different facts, a decision by an ECO to issue ILE despite not following the internal review procedure before doing so does not render that decision void ab initio. The facts in the present case are even clearer given that the Applicant had applied for ILE pursuant to paragraph 297 of the Immigration Rules and there is no suggestion that the ECO would have been acting completely outside of the range of possible responses to grant the application (contrary to, for example, a grant of ILE on an application for entry clearance in a different capacity than under paragraph 297 of the Immigration Rules, albeit even that was not enough in Ram). Whether as a matter of law the Applicant met all of the requirements of paragraph 297 of the Immigration Rules for a grant of leave is a question beyond the scope of this application for Judicial Review (and is, if necessary, to be determined on appeal by the First-tier Tribunal) however there are factors which point both ways on this and there is no agreement between the parties that the grant was ultimately incorrect or itself a mistake. If it was, it was not one so clear as that made in either Ram or YC, where in the latter, it was common ground that there was an administrative error and that YC was not entitled to a grant of ILR; as opposed to a different view on the substantive merits of the application.
60. The second issue is whether the Respondent had the power to correct any mistake, either in the decision of the 8 January 2025 or in the printing of the vignette on 15 January 2025. In accordance with the decision in YC, the answer to that is in principle yes, subject to certain conditions and safeguards set out therein. Had the Respondent identified the mistake (or if more than one, all mistakes) prior to any communication to the Applicant of a decision to grant (by way of letter, which never happened, or by issue of the vignette on return of his passport on 3 April 2025) there is in my view no question that any error in a decision on 8 January 2025 could have been corrected by way of the refusal decision that followed on 28 January 2025 and the printing of the vignette could have been corrected by it being spoiled before the passport was returned. In those circumstances, the mistake would likely be considered obvious and it would have been corrected before the Applicant had any knowledge of it, nor any possible reliance on it; and none of what followed would have happened.
61. The difficulty in the present case is that the Applicant received the vignette without the mistake having been spotted, some weeks after receiving a decision refusing his application (which he had by then also already submitted a notice of appeal against). It can not have been the case that the Respondent was unaware that the vignette had been printed at all, as she appears to have claimed as a reason as to why it had not been spoiled before the passport was returned, although it could be an oversight that it had not been spotted. The CRS records show a clear and unequivocal entry on 15 January 2025 that the vignette had been printed and there is nothing to suggest that entry would not have been visible to those subsequently considering the application. It should have been obvious to the ECM and then the second ECO who reconsidered the decision that a vignette had already been printed and there is no explanation at all as to how or why this was missed or not dealt with at that time. It does not squarely fall within the range of ‘mistakes’ or missed opportunities identified by Mr Blackwell. The mistake as to the printing of the vignette seems only to have been identified following the Applicant’s arrival in the United Kingdom.
62. The next point is whether the refusal decision on 27 January 2025 rectified any mistake in either the decision on 8 January 2025 or the printing of the vignette. For the reasons immediately above, it can not directly have rectified any error printing the vignette as the fact that it had been printed had not been spotted at the time and no actual steps were taken to spoil it at or around the time of the refusal decision on 28 January 2025 (or at all).
63. In relation to the original issue of ILE on 8 January 2025, given that by the time of the refusal decision on 27 January 2025, this had not been communicated to the Applicant in accordance with the Immigration (Leave to Enter and Remain) Order 2000 (or at all), I do not consider that there is any doubt that the Respondent could have changed the decision internally following review and as a purely administrative and internal matter without the need to follow the requirements of section 76 of the Nationality, Immigration and Asylum Act 2002 or even the factors in YC. There was a prompt correction of what the Respondent considered was a case-working error on 8 January 2025 both in terms of the need for an ECM review before a final decision was made and in terms of substance given that following that review, the decision was to refuse ILE; including on the basis that there had not been proper consideration of or evidence about the Applicant’s father and whether there were serious and compelling family or other considerations which made exclusion of the Applicant undesirable (an express requirement of paragraph 297(1)(i)(f) of the Immigration Rules). If a valid decision was taken by the ECO on 8 January 2025, it had been revoked on 25 January 2025 and replaced on 27 January 2025 with a refusal of the application, which was communicated to the Applicant the following day. By that point, even if a decision to grant was taken on 8 January 2025, it was no longer valid or extant, particularly absent communication to the Applicant.
64. There is a further consideration as to whether the Respondent’s actions/decisions following the Applicant’s arrival at Heathrow were indicative of a valid grant of ILE having been made, or in particular, remaining extant on arrival. Mr Ijezie submitted that the actions of the Respondent following the Applicant’s arrival at Heathrow were consistent with him arriving with valid leave to enter given that this was cancelled following arrival and therefore must have been in existence in the first place to need to be cancelled. Unfortunately, the actual refusal decision on 4 April 2025 has not been included in the bundle (despite this being a mandatory requirement for any decision under challenge to be included) so it is not possible to refer to the exact wording of the decision or the provisions relied upon for it.
65. The only documents included by the Applicant are (i) a partial copy of the notice that the Applicant is liable to be examined and detained; with suspension of permission to enter/remain pursuant to paragraph 2A(7) of Schedule 2 to the Immigration Act 1971 issued at 17:15 on 4 April 2025 [page 70 of the bundle] and (ii) the notice of removal directions dated 5 April 2025. The IS82 refusal notice that Mr Stump refers to being drafted late on 4 April 2025 and updated following the setting of removal directions is not included. The first document does not assist as it is very shortly after arrival and is clearly a holding position while matters are investigated without any final view of any permission, valid or otherwise. The suspension of what at first sight may have been ILE as per the vignette pending investigation does not take the matter any further. The second document does not assist as it contains no relevant reasons.
66. The only information as to the contents of the decision itself to refuse entry comes from Mr Stump’s written statement (none of which have been directly challenged by the Applicant), which sets out that the reason for refusal was that the settlement visa had been revoked (which is consistent with the entries on CRS on 8 and 25 January 2025) and there was a mandatory refusal under paragraph 9.14.1 of the Immigration Rules. Paragraph 9.14.1 of the Immigration Rules states:
“Permission to enter must be refused if the person seeking entry is required under these rules to obtain entry clearance in advance of travel to the UK, and the person does not hold the required entry clearance.”
67. The refusal of entry on that basis on 4 April 2025 strongly supports the Respondent’s position that there was, as at 4 April 2025, no valid ILE granted to the Applicant.
68. In any event, the real issue in the present case is whether the return of the Applicant’s passport containing a vignette showing a grant of ILE (which on its face satisfied the requirements of such a document for the grant of entry in accordance with the Immigration (Leave to Enter and Remain) Order 2000) on 3 April 2025 was (i) a mistake and (ii) a mistake which could lawfully be rectified on 4/5 April 2025 by the Respondent. Even if the printing of the vignette on 15 January 2025 was not a mistake (although on balance it likely was an administrative mistake because it should not have been done prior to the ECM review of the decision on 8 January 2025 and when the CRS recorded this as a review case), the return of the Applicant’s passport with the vignette affixed to it after the refusal decision had been notified to the Applicant was as there was, at that point, no valid grant of ILE. Although for the reasons set out above and in Mr Blackwell’s written statement, there appear to have been at the very least a number of missed opportunities to identify and rectify that mistake before the passport was returned, the mistake was only actually identified following the Applicant’s arrival at Heathrow when the system was checked and showed the application had been refused.
69. When considering whether the Respondent had the power to correct that mistake on 4/5 April 2025, I take into account the factors in YC. Those include the power of the Respondent to correct mistakes outside of any formal power to do so within the statutory scheme (and without needing recourse to, for example, section 76 of the Nationality, Immigration and Asylum Act 2002) and the public interest in doing so to ensure that applicants are granted only the status for which they lawfully qualify and that an individual should not be permitted to retain an unintended benefit and significant benefit, such as immigration status, arising from administrative or clerical error; even if a mistaken grant may still have legal effect (as in Ram).
70. Although not a concern on the facts of the present case, I would also add a separate public interest particular to applications under paragraph 297 of the Immigration Rules to ensure that children are only moved to the United Kingdom if all of the requirements of the Immigration Rules are met, in particular the family relationships are as claimed and after a full examination of their welfare and circumstances; all of which are vital for safeguarding reasons in relation to a particular child, as well as the general importance of satisfaction of the Immigration Rules.
71. The main focus within the factors in YC are whether there was an obvious mistake that had been corrected promptly. As above, there was a mistake in the Applicant’s passport being returned to him without the vignette first having been spoilt following the refusal decision dated 27 January 2025 given that he had no extant ILE at that time. This was an obvious administrative or clerical mistake. The vignette was not itself a decision by an Immigration Officer, but at its highest could only be evidence of such a decision. As above, that may well have been the case when it was printed on 15 January 2025 (whether or not the printing itself was a mistake), but was not when it was returned to the Applicant on 3 April 2025 given that no decision by the ECO on 8 January 2025 had been communicated to the Applicant; any decision on 8 January 2025 had been revoked no later than 25 January 2025; and the Applicant’s application had been refused with a fully reasoned refusal letter issued on 28 January 2025 to the Applicant. The latter had not been withdrawn, even following the issue of an appeal which remained live against it and I do not consider any basis for the Applicant’s assertion that the refusal letter was simply irrelevant as a different decision had already been made, even if not communicated.
72. In these circumstances, the return of the passport containing a vignette reflecting a decision which no longer existed nor was valid can not be anything other than an obvious clerical mistake. I also consider that for the same reasons, the mistake should have been obvious to the Applicant given his receipt of the refusal letter, his ongoing appeal against refusal and that he had at no time been notified of any positive decision by an Immigration Officer (ECO or ECM) that his application had been granted. At the very least, there is no explanation at all from the Applicant as to why he did not check the validity of the vignette in these circumstances before travelling pursuant to it the very next day after receipt.
73. As above, whilst there were at the very least missed opportunities to identify and rectify the mistake prior to the return of the Applicant’s passport on 3 April 2025; the mistake was rectified promptly upon discovery on 4 and 5 April 2025 following the Applicant’s arrival at Heathrow by means of cancellation of the same, as it was not valid given the refusal of the application. In any event, the rectification was relatively prompt being within a matter of weeks even from the longstop gap since the refusal of the application on 28 January 2025.
74. There was undoubtedly detrimental reliance by the Applicant following return of his passport with the vignette affixed to it as he travelled pursuant to it and was refused entry and then removed from the United Kingdom (albeit then brought back), but I do not consider that he could have reasonably expected that to be a valid and unequivocal grant of ILE in circumstances where he had previously only ever been notified of a refusal of his application and had a live appeal against it; nor had he received any communication from the Respondent suggesting that the refusal had been withdrawn. There is no explanation directly from the Applicant as to his belief at the time, nor any explanation as to why at the very least he did not check the position before travelling. I find it would have been reasonable to expect him to do the latter.
75. Following consideration of the history and effect of decision making in the present case, I return to the specifics of the first ground of challenge, that it was unlawful for the Respondent to refuse the Applicant entry to the United Kingdom, decide to remove him and then actually remove him on 4 and 5 April 2025. For the reasons set out above, I find that in accordance with the principles set out in YC, the Respondent was entitled to correct the mistake as to the return of the Applicant’s passport containing a vignette for ILE on 3 April 2025 as at that point, there was no extant or valid decision by an Immigration Officer to grant ILE. There had been an administrative mistake that had not been identified prior to that point that the vignette had not been spoiled subsequent to the refusal decision on 28 January 2025, or that it had not been spoiled as there was arguably a mistake in it being printed at all on 15 January 2025.
76. On the evidence before the Upper Tribunal, there was insufficient evidence that the Applicant held a valid decision to grant him ILE pursuant to paragraph 297 of the Immigration Rules on his arrival at Heathrow on 4 April 2025. The vignette affixed to his passport was in error at the date on which this was returned to the Applicant and the Respondent had the power to correct that error once identified by spoiling/cancelling the vignette. In these circumstances, it was lawful for the Respondent to refuse the Applicant entry following his arrival to Heathrow and it was further lawful for the Respondent to issue removal directions and remove the Applicant from the United Kingdom as he was a person who required entry clearance or leave to enter and did not have it (thus the mandatory refusal under paragraph 9.14.1 of the Immigration Rules). Further to the decision in YC there was no limitation on the Respondent’s power to correct a mistake only within the statutory scheme set out in section 76 of the Nationality, Immigration and Asylum Act 2002.
77. For these reasons, the first ground of challenge is dismissed.
Ground 2 – Irrational and/or Wednesbury unreasonable decision by the Respondent to refuse entry and remove the Applicant.
78. In essence, the Applicant’s case under this ground is that the Respondent’s decision to refuse him entry and remove him from the United Kingdom was perverse given that the Applicant was in possession of valid ILE and that it was manifestly unlawful and irrational for the Respondent to rely, in the absence of an express revocation of ILR, on a prior refusal letter.
79. The Applicant raises a number of concerns as to the Respondent’s position as to what happened and when in relation to decisions in response to this application. First, the Respondent refers to an original decision by the ECO on 8 January 2025 to issue ILE but also states that no valid decision every existed because the ECO lacked authority to issue it. Secondly, the Respondent refers to an initial refusal being ‘revoked’ followed by a ‘subsequent, and final, refusal’ which is inconsistent with the case put that there was never a valid decision to issue capable of revocation and there is no explanation as to how a refusal could be ‘revoked’. Thirdly, the Respondent’s account is further contradictory because following the Applicant’s arrival at Heathrow, the Border Force officials there stated that a revocation notice had been served on the Applicant’s uncle but the later witness statement expressly stated this did not happen. Fourthly, the Respondent has not provided any evidence as to whether or not the Applicant was notified of the decision on 8 January 2025 or otherwise; although the Applicant confirms none was received prior to collection of his passport on 3 April 2025. Fifthly, the Respondent has not provided any evidence of any system error or explanation as to how the vignette could have been issued in error.
80. The Respondent’s position is in essence the same as in response to the first ground of challenge, that there was a valid refusal of the Applicant’s application for ILE which had been communicated to him and the vignette was issued in error. As such, the Applicant arrived at Heathrow as a person who required entry clearance but did not have it; so it was entirely lawful and rational to refuse him entry and remove him from the United Kingdom. Mr Anderson resisted the submission that any adverse inferences should be drawn against the Respondent for the reasons relied upon by the Applicant.
81. I repeat the points above in relation to the first ground of challenge and reasons as to why that was dismissed. The Applicant’s second ground of challenge is predicated upon there being a valid grant of ILE to him at the point when he arrived in the United Kingdom on 4 April 2025, which for the reasons already given, there was not. In these circumstances, the second ground of challenge must also fail. The Respondent could not have acted irrationally in refusing entry to a person without valid entry clearance or leave to enter the United Kingdom who did not have the same and was, for the reasons above, entitled to correct the vignette error.
Ground 4 – Breach of legitimate expectation in the decision to refuse entry and remove the Applicant
82. The Applicant claims that he and his family in the United Kingdom held a legitimate expectation from the grant of ILR contained within the vignette affixed in his passport that he would be admitted to the United Kingdom pursuant to the same and that the Respondent’s refusal to admit him and the remove him was a breach of that legitimate expectation. The Applicant reasonably relied on the same to his detriment and it was conspicuously unfair of the Respondent to resile from that representation at the border.
83. As set out within the context of the first ground of challenge, the Respondent’s position is that in circumstances where the Applicant had been notified of a refusal of his application, with reasons and notice of his rights of appeal in accordance with both the Immigration (Leave to Enter and Remain) Order 2000 and Immigration (Notices) Regulations 2003; there was no clear and unambiguous promise of entry pursuant to the vignette and in any event, the circumstances were not such that it was unfair to resile form such an undertaking as the vignette presented. Further, it was reasonable in the circumstances for the Applicant to have at least made enquiries as to the validity of the vignette after he had received a refusal decision on his application.
84. This ground of challenge fails for essentially the same reasons as already given in relation to the first ground of challenge; that in circumstances where the Applicant had received no communication from the Respondent of a grant of his application for ILE and had only received a detailed reasons for refusal letter; pursuant to which there was a live appeal against refusal; there was no clear and unambiguous promise of entry to the United Kingdom pursuant to a vignette which was an obvious clerical error and which should have been reasonably obvious to the Applicant. Further, at the very least, it would have been reasonably expected that the Applicant check the validity of the vignette prior to travel. For all of these reasons, there was no breach of legitimate expectation in this case by the Respondent’s refusal of entry to and removal of the Applicant.
Ground 5 – Procedural unfairness in the decision to refuse entry and remove the Applicant
85. The Applicant claims that the Respondent’s decisions to refuse the Applicant entry and to remove him from the United Kingdom were made without proper explanation to the Applicant and without giving him a reasonable opportunity to seek legal advice and made informed representations, amounting to procedural unfairness. The Applicant had no opportunity to address the allegation that his leave was invalid or had been revoked and no revocation decision was issued to him. Further, given the Respondent’s shifting position, the Applicant was deprived of any meaningful ability to understand, challenge or respond to the case against him.
86. The Applicant claims that after arriving at Heathrow around 4pm on 4 April 2025, being refused entry and detained around 5:15pm that day, he was only permitted limited and delayed contact with his family, being able to speak to his aunt and uncle around 8pm. The Applicant’s family and legal representatives claim to have had difficulties phoning the short-term holding facility at Heathrow.
87. The Applicant was denied effective access to legal representation following his arrival at Heathrow. The Respondent refused to correspond with the Applicant’s solicitor in the absence of a signed letter of authority and on the basis that the Applicant had denied knowledge of having any legal representation. The grounds of challenge state this was plainly incorrect as the Applicant had been aware that EcoM solicitors were acting on his behalf. The Applicant was only able to speak to his solicitor at 11:26am on 5 April 2025.
88. The Respondent’s position in the first instances is that this ground of challenge adds nothing of substance to the earlier four grounds – if he is successful on those, there is nothing more in this and if not, he had no right to enter or remain and his removal was plainly lawful. In any event, the decision to refuse entry and remove the Applicant was not procedurally unfair in the context of the requirements of immigration control and in circumstances where the Applicant had access to a phone to contact family and/or to access legal advice for which there was not initially any letter of authority to show that solicitors were acting.
89. Whilst I acknowledge that the Respondent’s position over the history of this case has not been entirely clear or consistent; the evidence before me shows that there was sufficient information given to the Applicant following his arrival at Heathrow for him to be able to understand the reasons why (i) he was being detained and his permission to enter suspended whilst matters were investigated, and (ii) he was then being refused leave to enter and removed; enabling him to make representations against the latter. The issue was relatively narrow, the Respondent’s position was that the vignette was not valid as the Applicant’s application for ILE had been refused (a point which the Applicant acknowledged he had received notice of) and the Applicant’s position was that so far as he was aware and on its face, the vignette was valid. Although there have been far more detailed arguments on the underlying legal position and validity of the vignette, it is difficult to envisage what more the Applicant could have been told or said in response during a short period of time following his arrival. There is no written statement from the Applicant as to his understanding of what was happening at Heathrow or what had been explained to him and nothing at all on what, if anything he said or would have said in response. In any event, he obtained legal advice and proceedings were issued urgently which began the process of dealing with the point in more detail and representations as to bail, removal and other matters were made on the Applicant’s behalf by his solicitors.
90. The two specific claims that the Applicant was denied contact with his uncle and denied effective access to legal representation following his arrival at Heathrow are not borne out by the evidence of extensive correspondence between the Respondent and the Applicant’s solicitors as set out in the chronology above.
91. In relation to family contact, the emails show clearly that the Applicant had spoken to his uncle around 8pm on 4 April 2025 and thereafter he had been told of and repeatedly reminded of his ability to make a call anytime; and in addition, his uncle had been provided with contact details for the holding facility. There is no evidence at all from the Applicant to deny or contradict the contents of those email exchanges and on its face, the evidence shows that he was able to, but chose not to, have more contact than he did with his uncle during that period. There is no need for the Respondent to go further and evidence any internal records of specific conversations with the Applicant on this point, what happened is sufficiently clearly set out in the email correspondence.
92. In relation to access to legal advice, the emails also clearly show that the Applicant repeatedly denied knowledge of a having any representative acting for him and at least initially, the solicitors had no valid letter of authority to show that they were so acting. The Respondent was entirely clear as to the information being given to them by the Applicant and the need for a signed letter of authority for him for the solicitors to act. Again, there is no statement from the Applicant denying or contradicting what is recorded in those emails. The surprise expressed by the Applicant’s solicitors that he should know they were acting because they had assisted with making his entry clearance application is irrelevant and the emails from them demonstrate their own failure to understand the need for a valid letter of authority from the Applicant as an adult. The records do not show any denial of access to legal representation, to the contrary, clear information was given to both the Applicant and the solicitors as to what was required for this and the Applicant had repeatedly denied having a representative.
93. In any event, even prior to receipt of the letter of authority, there was extensive correspondence between the Respondent and the Applicant’s solicitors about the situation and thereafter it is self-evident that effective legal advice was given and instructions obtained from the fact that both an application for bail was made and an urgent application was lodged for a stay on removal; both within a matter of hours of the letter of authority being signed.
94. For these reasons, there was no procedural unfairness in the Respondent’s actions following the Applicant’s arrival at Heathrow. The Applicant was told of the reasons why he was not permitted to enter and would be removed and he was informed of his ability to communicate with family (which he did) and for legal representation. The application on ground four is dismissed.
Ground 6 – Breach Articles 3 and 8 of the European Convention on Human Rights in the decision to refuse entry and remove the Applicant
95. The Applicant claims that the refusal of entry to the United Kingdom, his detention and then removal to Kenya without due process or access to legal support caused extreme psychological distress which engaged and breached Articles 3 and 8 of the European Convention on Human Rights. The ground of challenge emphasises that the Applicant had recently turned 18 and had travelled alone from Kenya to reunite with close family in the United Kingdom and as such was in a vulnerable position, particularly as he was denied timely access to legal representation. The lack of legal foundation to the decisions taken is said to have further aggravated the Applicant’s stress and breached his right to respect for private and family life pursuant to Article 8.
96. The Applicant claims that following removal from the United Kingdom, he was stranded at the airport in Nairobi without food and water until the afternoon of 5 April 2025, having departed from the United Kingdom around 6:30pm (UK time) on 4 April 2025. Further, he was unable to bathe or shower from 5:15pm on 4 April 2025 until approximately 12:45am (local time in Kenya) on 6 April 2025 and 10:45pm (UK time) on 5 April 2025. The withholding of the Applicant’s passport by Kenya Airlines, cost of this flight ticket and consequential delays to his return to the United Kingdom caused the Applicant ‘palpable tension’.
97. The Applicant is said to have been unlawfully detained and unlawfully removed from the United Kingdom; with treatment including abandonment at Nairobi airport without food, funds or his passport; attained the minimum level of severity to engage Article 3 of the European Convention on Human Rights in accordance with East African Asians v The United Kingdom (Applications No. 4403/70-4478/70, 4486/70, 4501/70 and 4526/70). Paragraph 189 set out the European Commission’s view that:
“… The term “degrading treatment” in this context indicates that the general purpose of the provision is to prevent interferences with the dignity of man of a particularly serious nature. It follows that an action which lowers a person in rank, position, reputation or character can only be regarded as “degrading treatment” in the sense of Article 3 where it reaches a certain level of severity.”
98. The Applicant claims that his removal in breach of an injunction aggravates the severity of the degrading treatment experienced. For the purposes of Article 8, it is claimed that the Applicant’s treatment caused ‘extreme psychological distress’, again aggravated by his removal in breach of an injunction.
99. At the oral hearing, I specifically asked Mr Ijezie how Article 8 was engaged in this case given that the Applicant had not entered the United Kingdom and had no established family or private life in the United Kingdom. Mr Ijezie relied on the Applicant’s presence on the territory of the United Kingdom at Heathrow and the decision in Pretty v the United Kingdom (Application no. 2346/01) as to Article 8 private life covers the physical and psychological integrity of a person [at para 61].
100. The Respondent’s position on this final ground is in essence that the Applicant has failed to particularise a plausible claim and is unable to realistically pursue it in the absence of any objective or even subjective evidence from the Applicant himself; nor has it been explained at all how either Article 3 or Article 8 is even engaged in the circumstances of this case. What is asserted in the grounds falls very far short of the threshold of severity required for an Article 3 claim and in respect of Article 8, the Applicant plainly had no private life established in the United Kingdom before arrival and nothing to support any claim to have established family life here either. A person’s psychological integrity or distress at a situation does not amount to a freestanding Article 8 claim.
101. There are a number of difficulties with the Applicant’s final ground of challenge as follows. First, the Applicant’s ground of challenge in relation to whether the injunction was breached was not given permission and there is no unlawful detention claim before the Upper Tribunal. It is very far from being established in these circumstances that the Applicant was unlawfully detained or unlawfully removed, in breach of an injunction or otherwise. The Applicant’s assertions of the same are wholly unsupported in these proceedings and wholly inappropriate.
102. Secondly, the Applicant has failed to establish that the situation in Nairobi airport or treatment there was in any way attributable to or the responsibility of the Respondent. The actions of Kenya Airways to withhold the Applicant’s passport were entirely outwith the Respondent’s control and it the Respondent’s explanation that such actions were without legal foundation (including the demand for payment of the return flight cost) has not been disputed by the Applicant. The reasons for delay at Nairobi airport before the Applicant’s return to the United Kingdom are, on their face, attributable only to the actions of Kenya Airways. The Applicant has not suggested that there was any positive duty on the Respondent to make any, nor any particular provision, for the Applicant following his return to Nairobi beyond arrangements for his return to Heathrow which, as can been seen from the chronology, were made as soon as practically possible once the Applicant’s passport had been returned to him.
103. Thirdly, there is no evidence at all from the Applicant in support of either the Article 3 or 8 claim. There is no written statement from him and therefore no account from him at all as to his experiences either at Heathrow or in Nairobi, nor the effect of the situation on him. There is absolutely no evidence beyond mere assertion in the grounds to claim that the Applicant suffered any particular adverse treatment at all, let alone any evidence of extreme psychological distress. In particular in relation to the latter, there is no medical evidence to support this, nor evidence of any ongoing adverse effect on the Applicant of what happened.
104. Fourthly, the Applicant has not established any legal basis upon which Article 8 of the European Convention on Human Rights is even engaged in these circumstances. The Applicant has only previously visited the United Kingdom on one occasion and on this occasion had only got so far as Heathrow airport for a limited period before his removal. There is no evidence at all to suggest that he could have established any private life within the United Kingdom at or during this time, regardless of whether he was technically within the territory of the United Kingdom. There is also nothing to support a suggestion that the Applicant had family life established in the United Kingdom at the time of his arrival at Heathrow as an adult in accordance with the test set out in IA v Secretary of State for the Home Department [2025] EWCA Civ 1516. In the absence of established private or family life in the United Kingdom, Article 8 of the European Convention on Human Rights is simply not engaged and there is no separate or freestanding protection for a person’s psychological integrity that could even arguably engage Article 8.
105. Fifthly, the very brief assertions in the grounds of challenge fail to come anywhere close to establishing the minimum level of severity for an Article 3 claim that that the Applicant has suffered treatment amounting to torture or inhuman or degrading treatment or punishment. A period of not being able to shower of less than 48 hours (the timing in the grounds is confused and inconsistent on the actual timeframe where it is said the Applicant could not wash) and an unspecified period of not being given food at Nairobi airport (when in any event the circumstances were entirely outwith the control of the Respondent and unattributable to her) fall very far short indeed of inhuman or degrading treatment and were certainly not examples of torture. Whilst not wishing to underplay must have been a difficult time for the Applicant, at its very highest, the unevidenced claims amount to no more than some discomfort and inconvenience to him.
106. For these reasons, this final ground of challenge is wholly unarguable. It does not meet even the basic requirements of particularising a claim to even engage such grounds, nor any of the evidence required for such a challenge to be pursued. Although permission was granted on this ground, it self-evidently should not have been pursued in this way.
Conclusion
107. For the reasons set out above, this application for Judicial Review is dismissed on all grounds.
108. There is one final issue as to be determined as to whether the stay on removal previously granted should now be discharged as these proceedings are at an end. It is my preliminary view that the Respondent is correct that it should now be discharged as there is no longer any live application for Judicial Review to attach it to. In any event, the Applicant has an ongoing appeal before the First-tier Tribunal which until finally resolved, is a barrier to his removal from the United Kingdom. The parties are invited to agree matters in relation to the stay in a draft order following receipt of this decision on an embargoed basis.
Post-script
109. An embargoed draft of the decision above was circulated to the parties on the usual basis, the purpose of disclosure of the draft being to assist in identifying any misprints, inadvertent errors or fact or ambiguities of expression and not to enable them to re-argue the case (Per Lord Hoffman in Edwards v Environment Agency [2008] UKHL 22).
110. On 22 April 2026, Mr Ijezie sent in typographical corrections, but also went much further than invited and made submissions in relation to paragraphs 64 to 66 above and separately sent in further documentation seeking its late admission. He stated that the Applicant received the IS.81 decision on 4 April 2025, took a photo of it on his phone which he sent to his uncle who then provided it to his solicitors. When further inquiry was made of the Applicant’s aunt and uncle on 21 April 2026, they did not recall the document, but were then able to locate it and provide a further copy. A total of six further documents were sent, which were an IS.82 dated 4 April 2025; an IS.81 dated 4 April 2025 and another dated 8 April 2025; an IS.86 dated 4 April 2024 and two notices to detained persons both dated 4 April 2025.
111. Mr Ijezie was informed by the Upper Tribunal that a formal application was required if he sought admission of the further documents
112. which must set out (i) the legal test for late submissions and/or relief from sanctions and how it is met in this case; (ii) a full explanation for the delay contained in a written statement or statements accompanied by a statement of truth; (iii) the Respondent’s views on the application; and (iv) setting out any consequential matters, including for any submissions on the documents themselves.
113. The initial response from Mr Ijezie was simply that he would liaise with the Respondent to file a consent order in relation to the documents. An application was however made on 23 April 2026, presumably as the Respondent opposed the late admission of documents. The application referred to the test in Denton and stated that (i) the late filing was serious but not significant given the stage of proceedings that had been reached; (ii) there was a good reason for the Applicant’s delay, which was that there were stressful circumstances for the Applicant and his solicitor on the night of the 4 April 2025; that when the interim injunction was granted there was a requirement to file the application for Judicial Review two days later (by 4pm on 7 April 2025) which was done with the documents then available; that until 21 April 2026 the Applicant was unaware that he had the documents in his possession and that these were located following a search of the Applicant’s luggage on 21 April 2026; (iii) in all of the circumstances it was just and equitable to admit the additional documents. In particular, it was noted the relatively young age of the Applicant at the time of his arrest, detention, removal and return to the United Kingdom together with the extraordinary level of engagement by the Applicant’s solicitor with the Respondent, the High Court and the Upper Tribunal between 4 and 8 April 2025; that although the Applicant was under a duty to file the decision under challenge, it was inadvertently omitted and the Respondent breached her duty of candour to disclose the same; and that the missing documentation was not raised with the parties before the embargoed decision was circulated.
114. On 24 April 2026, Mr Ijezie made written submissions as to the application for late admission of documents, an application for permission to appeal and on costs. As to the documents, it is stated that the application meets the applicable tests in Denton & others v TH White Ltd & Ors [2014] EWCA Civ 906 and Ladd v Mashall [1954] EWCA Civ 1; that (i) the evidence could not have been obtained with reasonable diligence for use at the final hearing; (ii) the evidence would probably have an important influence on the result of the case; and (iii) the evidence is believable, credible and incontrovertible. Again, it was emphasised that the Respondent was under a duty to disclose the documents, given their omission by the Applicant in extremely stressful circumstances.
115. At the oral hearing, Mr Ijezie apologised for failing to submit the documents now available that should have been filed earlier. He had already explained the circumstances and candidly accepted that he did not recall asking the Applicant for them prior to receipt of the embargoed decision. He relied on the personally stressful circumstances in early April 2025 after the Applicant arrived at Heathrow for the omission.
116. On behalf of the Respondent, Mr Hopkin relied on his skeleton argument submitted shortly before the hearing commenced (only received during the hearing as it had not yet been processed on the Upper Tribunal’s filing system). The correct test in a Judicial Review context was that set out in Hysaj, R (on the application of) v Secretary of State for the Home Department [2014] EWCA Civ 1633, and not that set out in Ladd v Marshall, as confirmed in paragraph 35 of AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16. The test is as follows:
(a) The court should first identify and assess the seriousness or significance of the failure to comply with any rule, practice direction or court order,
(b) consider why the failure or default occurred (and whether there is good reasons for it), and then
(c) (if needed) consider all the circumstances of the case, so as to enable the application to be dealt with justly.
117. The Respondent’s main submission is that the delay in submitting the documents was serious and significant, with no reasonable explanation for it and a lack of proper explanation, nor any mitigating factors for the delay. In any event, the Respondent’s position is that the test for reopening the application set out in AIC is not met as (i) the IS.81 documents are similar to what was available and have only limited probative value; and (ii) the IS.82 is consistent with the description of the same given by Mr Stump and considered in the decision already. As such, the further documents could not alter the findings of the Tribunal.
118. At the hearing on 27 April 2026 I set out my preliminary view that despite the lateness of the submission of the documents and the failure of the Applicant to meet the relevant tests to do so (for the reasons below), there were sufficient exceptional circumstances to admit the documents given that the IS.82 in particular was a compulsory document that the Applicant was required to file evidencing the primary decision under challenge. Further, having considered the documents it was my preliminary view that the IS.82 in particular did not affect the reasoning or conclusion in the decision circulated in draft and in fact supported it; albeit the decision would have been drafted slightly different to refer expressly to this document if it had been available when it should have been. Neither party sought to dispute these preliminary views, nor to make any contrary submissions on the documents themselves or their relevance to the outcome of this application for Judicial Review. In these circumstances, I admitted the documents and set out my reasons below for the preliminary views reached.
119. First, in relation to the test for admitting the documents. I deal with this relatively briefly given the exceptional circumstances and importance of the Upper Tribunal having sight of the actual decisions under challenge, however late in the day, for them to be admitted in any event. The correct test to be applied is set out in the Respondent’s submissions, and above.
120. In short, the delay is significant and serious. The Applicant was required to have filed the documents now submitted with the original application for Judicial Review issued on 7 April 2025. This was a mandatory requirement and self-evidently relevant to include the substantive decision under challenge. The delay in over a year before the document was submitted, only after circulation of the embargoed decision, was egregious and lacks any cogent explanation.
121. As to the second consideration, the Applicant fails to establish any good reason for the failure to submit mandatory documents previously, not least because it could not possibly be said that the documents could not have been obtained earlier with due diligence. The assertion to the contrary by Mr Ijezie is patently false. His initial email stated that the relevant documents were conveyed by the Applicant to his uncle by whatsapp and then by email from his uncle to Mr Ijezie when the Applicant had been given them at Heathrow Airport in April 2025. Further, at the hearing Mr Ijezie stated that he did not recall every asking for the relevant documents, something which as a legal professional owing a duty to the Upper Tribunal in circumstances where the IS.82 in particular was a mandatory requirement to be filed with the application for Judicial Review was inexplicable. In this case, the Applicant had the relevant documents in his possession at all times since the they were given to him in April 2025 and on Mr Ijezie’s account, so did he. The failure in this case lies squarely with Mr Ijezie who with due diligence could and should have filed the required documents when the application for Judicial Review was issued or very shortly thereafter, there is no reason at all, let alone a good reason for his failure to do so.
122. Secondly, as to the substance of the documents, I deal primarily with the IS.82 as the remaining documents were already partially available (the material parts being evident on an otherwise incomplete copy of an IS.81) and/or are not directly relevant or different to those previously available.
123. The IS.82 is a notice of refusal of permission to enter the United Kingdom, which in this case stated as follows:
“You have sought entry to the United Kingdom on a Settlement Visa, with the visa number 024960464 issued on 08/01/2025. This visa gave you permission to remain in the United Kingdom until 18/09/2032 under the sponsorship of your Legal Guardian Alexander Katua Kakui. However, this visa was revoked on the 25/01/2025.
Home Office records states that on 27/01/2025 your Human rights claim for the application of the entry clearance stated above was refused and you were notified of this via email. During further interview you stated that your Email was […], while that does not match Home Office records you did confirm that your uncle received this email and forwarded it to yourself.
You have a pending out of country appeal regarding your settlement visa, by virtue of this it confirms that you received the original decision in regard to the revocation of your visa. Until a decision is reached your current leave for the United Kingdom is invalid and therefore you have no valid leave for the purpose you stated when you arrived in the United Kingdom.
You have not sought entry under any other provisions under the immigration rules and therefore, have no valid leave for the purpose you have stated as you require as a Kenyan national.
Part 9.14.1. Of the Immigration rules states that, permission to enter must be refused if the person seeking entry is required under these rules to obtain entry clearance in advance of travel to the UK, and the person does not hold the required entry clearance.
I therefore refuse you permission to enter the United Kingdom.
This decision does not carry an Administrative Review and removal directions will now commence.”
124. The decision is entirely in accordance with the description of its contents in the written statement of Mr Stump set out in paragraph 66 above and is consistent with the findings and reasons reached in the draft decision that there had been a grant of ILE on 8 January 2025, which was revoked on 25 January 2025, the application was then refused on 27 January 2025 and as such there was no extant ILE granted at the time of the Applicant’s arrival at Heathrow Airport and only a mistake in the return of his passport containing a vignette. In these circumstances, there is no need to reopen the application or revisit any part of the decision as circulated to the parties in light of the further documents.
Permission to appeal
125. The Applicant seeks permission to appeal on ten grounds which I deal with in turn below.
126. First, the Upper Tribunal erred in law in making irreconcilable findings as to the existence of a lawful and communicated grant of ILE, erring in the conclusion that there was no valid ILE on arrival at Heathrow contrary to the earlier finding that a valid decision to grant ILE had been made on 8 January 2025, further to which a vignette was printed and returned to the Applicant. The Upper Tribunal failed to identify a lawful mechanism by which the grant ceased to exist prior to arrival. Further, the Upper Tribunal failed to properly consider the Applicant’s case that the refusal of ILE on 27 January 2025 was itself issued in error at a time when a valid grant had already been made; erred in considering the Applicant’s subjective expectation in relation to the vignette and the absence of any written statement from the Applicant about it.
127. This ground does not identify any arguable error of law and amounts to no more than disagreement with the findings made as to the sequence of events, in which a valid decision was made on 8 January 2025, which was revoked on 25 January 2025 prior to any communication to the Applicant and permissible as an administrative correction without requiring a specific legal mechanism. The application was then outstanding and a new decision refusing it was made on 27 January 2025, with no arguable basis upon which it could be found that that decision was a mistake, for the reasons primarily set out in paragraphs 60 and 63 of the decision above.
128. Secondly, the Upper Tribunal erred in law in mischaracterising the grant and communication of ILE as an administrative mistake and misapplied the decision of YC, which required prompt rectification and absence of consequential reliance; neither of which were present on the findings made. Further, that the Upper Tribunal erred in relying on the CRS records which were inconsistent, unclear and failed to provide any reliable evidence of revocation, cancellation or withdrawal of ILE on 25 January 2025.
129. This ground does not identify any arguable error of law and amounts to little more than disagreement with the interpretation of the evidence in the CRS records, which, contrary to the ground of appeal, was sufficiently clear and identified in particular a revocation on 25 January 2025 (the wording not indicating a prospective revocation). Although there were missed opportunities to identify the mistake in issue of the vignette, the error was still rectified promptly once identified and promptly even from the earlier date on which it was printed.
130. Thirdly, the Upper Tribunal erred in law in failing to give legal effect to the communication of the ILE grant by the vignette on 3 April 2025 and unlawfully relied on uncommunicated internal case notes.
131. This ground of appeal is unarguable and fails to engage with the findings and reasons as to why the vignette did not communicate a valid ILE grant when the Applicant’s passport was returned to him on 3 April 2025.
132. Fourthly, the Upper Tribunal failed to engage with the statutory suspension of leave to enter on the IS.81 which can only have been used if there was extant leave and relied on circular reasoning by reference to the IS.82 refuse of permission to enter.
133. For the reasons given in paragraph 65 of the decision above, it is unarguable that the IS.81 suspension of permission to enter/remain takes either party’s case any further given it amounted to no more than a holding position at the point of the Applicant’s arrival with a vignette creating a prima facie case for permission to enter which required investigation, following which the position was clarified that it was not a valid vignette.
134. Fifthly, the Upper Tribunal erred in treating the port of entry enforcement decisions or directions as a rectification and/or cancellation of a communicated grant of ILE. The Upper Tribunal failed to consider whether the IS.82 purported to revoke ILE, identified any statutory power to do so, or complied with any procedure capable of lawfully withdrawing an existing grant of ILE and the IS.82 could not in any event have done so given the Applicant’s detrimental reliance on the extant ILE.
135. This ground of appeal misunderstands the Upper Tribunal’s decision and is not an arguable error of law. There was no finding that the IS.82 (even once provided and considered) revoked or cancelled a grant of ILE, to the contrary, the finding was that ILE had already been revoked on 25 January 2025 and replaced with a refusal of ILE on 27 January 2025 which was communicated to the Applicant. The rectification was in relation to the vignette and separate to the IS.82 which on its face was a freestanding decision to refuse entry as the Applicant had no extant ILE on arrival at Heathrow.
136. Sixthly, the Upper Tribunal erred in failing to properly engage with the Applicant’s core case that the refusal of ILE on 27 January 2025 was issued in error and instead determined the claim on a basis not advanced by the Respondent that an alleged mistake of ILE could be rectified at port by enforcement action.
137. This ground of appeal is unarguable and also rests on the same misunderstanding of the decision and reasons identified in relation to the fifth ground of appeal. There was no suggestion of or finding that the IS.82 rectified a mistake in a grant of ILE, it did not and could not have done, that happened on 25 January 2025 followed by a refusal of ILE on 27 January 2025. There was no contrary case advanced by the Respondent. The error was the return of the Applicant’s passport with a vignette which should either not have been printed and affixed to his passport at all (the Respondent’s case) or should have been spoiled prior to it being returned as it did not at that date (3 April 2025) reflect any extant decision to grant ILE. There was no evidence to support the refusal decision of 27 January 2025 being a mistake, to the contrary, clear reasons for refusal were given by reference to the requirements of the Immigration Rules and the decision has given rise to a right of appeal accepted as valid by the First-tier Tribunal.
138. The seventh ground of appeal is that the Upper Tribunal erred in using circular reasoning to dismiss a freestanding irrationality challenge, which was not parasitic on the Applicant holding valid ILE.
139. This ground of appeal is unarguable. There was no distinct basis upon which the Respondent could have been found to have been irrational in refusing entry to a person who required permission to enter the United Kingdom but who did not have it – that is a mandatory ground of refusal under the Immigration Rules. The Applicant did not submit at any time that even absent ILE, the Respondent acted irrationally.
140. The eighth ground of appeal is that the Upper Tribunal erred in law in dismissing the legitimate expectation claim without fully engaging with the distinct substance of such a claim, which did not rely on the Applicant having extant ILE on arrival, but whether there was a clear and unambiguous representation that the Applicant was entitled to rely upon. Further, the Upper Tribunal erred in treating the earlier refusal decision as negating any legitimate expectation arising from the vignette, which had the character of a contract and erred in failing to determine whether frustration of the expectation would be so unfair as to amount to an abuse of power by the Respondent. Finally, the Upper Tribunal erred in introducing a requirement of the Applicant’s reliance on the vignette not being reasonable without checking its validity before travel.
141. This ground of appeal is also unarguable. The dismissal of the legitimate expectation ground did not rely on the outcome of the earlier grounds of challenge, it simply referred back to the findings and reasoning already set out in other grounds which was applicable to the decision that there was no clear and unambiguous representation of valid ILE by the vignette taking into account all of the circumstances. It is not arguable that there was any additional requirement of reasonableness, it was simply a reflection of consideration of whether the Applicant was entitled to rely on the vignette. The additional points raised in this ground of appeal in relation to a vignette amounting to a contract and an abuse of power were not relied upon by the Applicant before the Upper Tribunal and can not therefore establish an arguable error for failure to address them.
142. The ninth ground of challenge is that the Upper Tribunal erred in law in dismissing the Applicant’s challenge on grounds of procedural fairness on the basis that he was not denied meaningful contact with family and effective access to legal representation.
143. This ground of appeal in part relies upon Mr Ijezie’s own lack of understanding as to the need for a valid letter of authority to. In any event, it is unarguable that there was a denial of practical or meaningful access to legal advice in circumstances where there was in any event extensive correspondence between Mr Ijezie and the Respondent (which was not disputed and upon which no further evidence was necessary, it spoke for itself); and following the required letter of authority, an application for bail and for urgent interim relief was made. The final point that the Upper Tribunal failed to consider the swiftness of removal and actual removal when the flight was on the ground following receipt of the injunction can not be an arguable error of law in circumstances where the Applicant did not have permission to pursue a challenge for breach of injunction; nor had it been established that there was a breach (which would depend on when the flight pushed back, not when it actually took off).
144. The final ground of appeal is that the Upper Tribunal erred in dismissing the Applicant’s challenge on the grounds of Article 3 and 8 of the European Convention on Human Rights. This ground is wholly unarguable, the Applicant simply failed to establish, in law or in fact, that either Article 3 or Article 8 was even engaged in these circumstances.
145. For these reasons, I refuse permission to appeal on all grounds.
Costs
146. The Respondent’s position on costs is that there is no basis not to follow the usual rule that costs follow the event such that the Applicant is liable for the Respondent’s reasonable costs. However, the Respondent recognised that there were aspects of her costs which should not be recoverable (including any costs associated with the application for urgent relief which was success and costs of applications for extensions of time) and aspects of her conduct in these proceedings, such as the late evidence shortly before the hearing, that justified a reduction in costs to be awarded. At the hand-down hearing on 27 April 2026, Mr Hopkin (then representing the Respondent as Mr Anderson was unavailable) proposed the Respondent be awarded 50% of her reasonable costs of defending this claim.
147. On behalf of the Applicant, Mr Ijezie submitted that the Upper Tribunal should exercise its discretion to depart from the usual rule that costs follow the event to either order the Respondent to pay the Applicant’s costs in full, or in the alternative, to make no order as to costs.
148. At the hearing on 27 April 2026, Mr Ijezie set out the basis for his application for costs as follows. First, that the Respondent’s conduct before the application for Judicial Review was issued should be taken into account, to recognise that the Respondent’s conflicting decisions were the source of the confusion and need for legal proceedings at all. Secondly, that the Respondent should not be entitled to recover any costs in relation to the application for interim relief which was granted, nor for her applications for extensions of time which followed her own conduct and were not relevant to the substantive issues in the case. Thirdly, Mr Ijezie relied on what he described as the extraordinary events of 4 April 2025 and the personal stress caused to him at this time, including the need to be working through the night and in the very early hours of the morning. Fourthly, although the application was dismissed on all grounds, the Respondent in fact lost in substance on the main case advanced by her. Finally, the Respondent breached her duty of candour in failing to preserve and/or disclose relevant documents and in the late submission of evidence just before the hearing.
149. In this application for Judicial Review, there are numerous examples through the history of proceedings of both parties failing to meet procedural requirements and deadlines. Neither party has entirely fulfilled its obligations to assist the Upper Tribunal in the determination of the application. Mr Ijezie’s submissions on costs failed entirely to recognise that such failings did not only go one way and criticism can fairly be made of conduct on both sides, such that the Respondent’s conduct alone is not sufficient to justify a departure from the usual cost rules. The remaining points raised by Mr Ijezie did not identify relevant matters for consideration as to the exercise of discretion in costs, focusing on the substance and merits of the application (which had already been determined wholly in the Respondent’s favour) and on matters arising before the application was even issued. Mr Ijezie’s further reliance on personal inconvenience and stress was wholly inappropriate and irrelevant.
150. In all of the circumstances, there is no reason to depart from the usual costs rule for the Respondent to be paid her reasonable costs of defending the application. However, for the reasons readily accepted by the Respondent, a reduction in the same is fair to reflect difficulties in the case and matters upon which costs should not, as a matter of principle, be recoverable. I consider a 50% reduction to be entirely reasonable for this purpose and make the order in those terms.
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