Law Report: Home Secretary could revoke leave to remain in UK

Law REPORT: 16 JANUARY 1998

A grant of indefinite leave to remain in the United Kingdom under section 4(1) of the Immigration Act 1971 had to be "given" in writing to the person affected, and could accordingly be cancelled or revoked until it had been communicated.

Rafiq v Secretary of State for the Home Department; Court of Appeal (Lord Justice Hirst, Lord Justice Robert Walker and Mr Justice Harman) 13 January 1998

The Court of Appeal dismissed the appeal of Robina Rafiq against the decision of the Immigration Appeal Tribunal, which had reversed an Adjudicator's decision to allow her appeal against a deportation order.

The appellant, a Pakistani citizen, had applied for indefinite leave to remain as a spouse. In May 1993 her passport was endorsed with a stamp signifying the grant of indefinite leave to remain, but the passport was not returned to her. In June 1993 the appellant and her husband separated, and in April 1994 the Home Secretary returned her passport, with the stamp granting indefinite leave to remain deleted as "endorsed in error". An accompanying letter notified her of the refusal of her application on the ground that her marriage was no longer subsisting.

Ian MacDonald QC and Simon Gill (David Shine & Kharbanda, Southall) for the appellant; Pushpinder Saini (Treasury Solicitor) for the Home Secretary.

Lord Justice Hirst said that the Adjudicator who had allowed the appellant's appeal against the deportation order had held that the original endorsement in her passport was sufficient to satisfy the requirement in section 4(1) of the Immigration Act 1971 that the Home Secretary's power to give or vary leave to remain in the United Kingdom should be exercised by notice in writing given to the person affected, and that, in the absence of deception, that decision could not be revoked. He had also held that it was unreasonable for the Home Secretary to have retained the appellant's passport for almost a year, and that it was the function of the judiciary to protect the individual from the "unfettered power of the executive" to hold a person's passport indefinitely.

It had been submitted for the appellant that the stamping of the passport was the clearest possible evidence of a decision to grant indefinite leave to remain and of the actual grant of leave, which was irrevocable, and that all that was missing was the posting or handing over of the passport to its owner.

On behalf of the Home Secretary it had been submitted that the fallacy in that argument was that it accorded no weight to the word "given" in section 4(1), and that the process of exercising the power to grant leave was not complete until the decision had actually been communicated.

Minton v Secretary of State for the Home Department [1990] Imm LR 199 was authority for the proposition that the stamp in the passport was the manner in which the decision-making process was exercised, but the ratio of the case was that an illegible stamp granting limited leave to remain did not constitute notice of the decision because it failed to communicate the duration of the leave granted.

For those reasons the appeal would be dismissed, but the case could not be left without the expression of considerable disquiet concerning the 11-month period during which the appellant's passport had been retained. There might have been grounds for a successful application for judicial review had such a case been mounted. Whilst the view of the Adjudicator in that context was understandable, it had not, however, been within his jurisdiction to set matters right on that ground.

- Kate O'Hanlon, Barrister