Revocation of indefinite leave to remain - was it fair?

22 April 2019

Mr Ullah, a Pakistani national who had had his indefinite leave to remain revoked by the Home Office, resisted their decision and had taken his case all the way to the Court of Appeal. This was a Judicial Review case and Mr Ullah had applied for remedy on eight separate grounds. However, the court had only accepted one of them.

This was a draconian narrowing down of the issues, and the court tried to limit the lawyers’ submissions to that one ground and complained that some of the papers provided to the court "strayed well beyond the very limited bounds of the permission".

But the court was ultimately evidently not dissatisfied with the assistance it received from the lawyers on both sides to reach an appropriate decision, but unfortunately for Mr Ullah his lawyer’s efforts were, in the end, to no avail. But it is fair to say that this was a difficult case.

Mr Ullah had acquired indefinite leave to remain back in 2012, on the basis of "unlawful long residence" rules. He had originally been refused by the Home Office but subsequently the First-Tier Immigration Tribunal had overturned the Home Office’s decision and directed them to grant him the leave he had applied for. This was a fact which Mr Ullah subsequently hoped would come in useful for him.

There then followed one of those tangled tales that make immigration law so interesting. It appears that in 2013 a member of the public wrote to the Home Office and told them that Mr Ullah had obtained his indefinite leave to remain by deception, and that he had at different times used two different passports with two different sets of details. And, not only that, but this person had included copies of these two different passports with the letter.

It hardly needs to be said that (a) this person really had it in for Mr Ullah and (b) they evidently had detailed knowledge of the circumstances. Conclusion (b) is fortified by the fact that a subsequent investigation by the Home Office indicated that he had indeed had two different passports containing different details.

Not only this, but they came to the conclusion that he had on several occasions applied for visitor visas from Pakistan when he was supposed to be in the UK, clocking up the years of unlawful residence that would ultimately acquire for indefinite leave to remain . So, in reliance on the normal laws of physics, whereby a person cannot be in more than one place at the same time, the Home Office was not quite happy about things.

However, evidently the Home Office was busy, and it was not early 2016 that they took any action about this, and this it seems was only prompted by the fact that Mr Ullah was attempting to enter the UK through the airport. Then he was apprehended and refused leave to enter, his indefinite leave to remain was revoked, and he was given only temporary admission to the UK.

Mr Ullah protested. He said that he had done nothing dishonest and that he had been in the UK for the whole of the relevant time. He fought his way through Administrative Review with the Home Office and Judicial Review with the Upper Immigration Tribunal but without success.

But by the time has case arrived for consideration by the Court of Appeal the issues had - as we saw - been severely narrowed down. The only issue before the court was now that of finality in litigation, and whether the Home Office’s action had been correct in that respect.

Finality in litigation ("res judicata" as Latin speakers and lawyers may call it) is an important concept. When a legal decision is made there may be one or more rights of challenge through a court but it cannot go on for ever - at some point there must be finality in litigation. There cannot be a limitless number of fresh bites of the cherry.

Intuitively this seems fair. But how could this relate to Mr Ullah’s case? His argument was that the Immigration Tribunal - which was the relevant competent appellate body - had decided in 2012 that he was entitled to indefinite leave to remain, and that it was therefore not open to the Home Office to revoke it. This had, so he argued, undermined the concept of finality in litigation.

But the court did not see it this way. They noted that the evidence about the passports and visitor visa applications had not been available to the Tribunal in 2012 when it made its decision - or indeed to the Home Office either.

A thorough examination of the relevant caselaw drew distinctions between different kinds of cases. It would in a general way be unlawful for the Home Office to try and disregard a Tribunal decision. If the Tribunal says that a person is entitled to a visa the Home Office cannot just carry on fighting and presenting new arguments.

But there comes a breaking point to this principle, and in a case where new and compelling evidence unexpectedly comes to light (as indeed in this case) the Home Office may be entitled to review the situation. So Mr Ullah failed in his case.

If you have had your immigration leave revoked you are well advised to consult a good lawyer.


Garth Coates Solicitors