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

Sport
The Pipes and Drums of The Scottish Regiments perform during the Opening Ceremony for the Glasgow 2014 Commonwealth Games at Celtic Park on July 23, 2014 in Glasgow, Scotland.
Commonwealth gamesThe actor encouraged the one billion viewers of the event to donate to the children's charity
Sport
Members of the Scotland deleagtion walk past during the opening ceremony of the 2014 Commonwealth Games at Celtic Park in Glasgow on July 23, 2014.
Voices
voicesGood for Lana Del Rey for helping kill that myth, writes Grace Dent
Sport
Shinji Kagawa and Reece James celebrate after the latter scores in Manchester United's 7-0 victory over LA Galaxy
football
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Arts and Entertainment
The Tour de France peloton rides over a bridge on the Grinton Moor, Yorkshire, earlier this month
film
Life and Style
fashion Designs are part of feminist art project by a British student
News
Very tasty: Vladimir Putin dining alone, perhaps sensibly
news
Life and Style
Listen here: Apple EarPods offer an alternative
techAre custom, 3D printed earbuds the solution?
Arts and Entertainment
Top guns: Cole advised the makers of Second World War film Fury, starring Brad Pitt
filmLt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a uniform
News
The University of California study monitored the reaction of 36 dogs
sciencePets' range of emotions revealed
News
Snoop Dogg pictured at The Hollywood Reporter Nominees' Night in February, 2013
people... says Snoop Dogg
Arts and Entertainment
A scene from Shakespeare in Love at the Noel Coward Theatre
theatreReview: Shakespeare in Love has moments of sheer stage poetry mixed with effervescent fun
News
Joining forces: young British men feature in an Isis video in which they urge Islamists in the West to join them in Iraq and Syria
newsWill the young Britons fighting in Syria be allowed to return home and resume their lives?
Arts and Entertainment
The nomination of 'The Wake' by Paul Kingsnorth has caused a stir
books
News
i100
Life and Style
food + drinkZebra meat is exotic and lean - but does it taste good?
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

BI Manager - £50,000

£49000 - £55000 per annum + competitive: Progressive Recruitment: My client is...

BI Project Manager - £48,000 - £54,000 - Midlands

£48000 - £54000 per annum + Benefits package: Progressive Recruitment: My clie...

VB.Net Developer

£35000 - £45000 per annum + competitive: Progressive Recruitment: If you're pa...

SAP Business Consultant (SD, MM and FICO), £55,000, Wakefield

£45000 - £55000 per annum + competitive: Progressive Recruitment: SAP Business...

Day In a Page

Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform
Climate change threatens to make the antarctic fur seal extinct

Take a good look while you can

How climate change could wipe out this seal
Should emergency hospital weddings be made easier for the terminally ill?

Farewell, my lovely

Should emergency hospital weddings be made easier?
Man Booker Prize 2014 longlist: Crowdfunded novel nominated for first time

Crowdfunded novel nominated for Booker Prize

Paul Kingsnorth's 'The Wake' is in contention for the prestigious award
Vladimir Putin employs a full-time food taster to ensure his meals aren't poisoned

Vladimir Putin employs a full-time food taster

John Walsh salutes those brave souls who have, throughout history, put their knives on the line
Tour de France effect brings Hollywood blockbusters to Yorkshire

Tour de France effect brings Hollywood blockbusters to Yorkshire

A $25m thriller starring Sam Worthington to be made in God's Own Country
Will The Minerva Project - the first 'elite' American university to be launched in a century - change the face of higher learning?

Will The Minerva Project change the face of higher learning?

The university has no lecture halls, no debating societies, no sports teams and no fraternities. Instead, the 33 students who have made the cut at Minerva, will travel the world and change the face of higher learning
The 10 best pedicure products

Feet treat: 10 best pedicure products

Bags packed and all prepped for holidays, but feet in a state? Get them flip-flop-ready with our pick of the items for a DIY treatment
Commonwealth Games 2014: Great Scots! Planes and pipers welcome in Glasgow's Games

Commonwealth Games 2014

Great Scots! Planes and pipers welcome in Glasgow's Games
Jack Pitt-Brooke: Manchester City and Patrick Vieira make the right stand on racism

Jack Pitt-Brooke

Manchester City and Patrick Vieira make the right stand on racism
How Terry Newton tragedy made iron men seek help to tackle their psychological demons

How Newton tragedy made iron men seek help to tackle their psychological demons

Over a hundred rugby league players have contacted clinic to deal with mental challenges of game