Mark Symes of the Garden Court Public Law and Immigration Law Teams acted for the Claimant, instructed by Beth McGovern of Southwark Law Centre.
On 12 February 2025, Mark Symes represented the Claimant in a substantive judicial review before the Upper Tribunal (Immigration and Asylum Chamber).
The case turns on when the Home Office is bound by a decision ostensibly granting indefinite leave to remain (ILR), where it is later found that their caseworker’s intention was only to grant limited leave.
The Home Office argue that they have a power to cancel leave granted by mistake. The Claimant counters that the only mechanism for revisiting an ILR grant is the revocation provisions at section 76 of the Nationality, Immigration and Asylum Act 2002, on grounds such as fraud, or change of country conditions for refugees.
In other fields, such as housing law and in the regulation of the medical profession, the precedents indicate that pure administrative errors can be rectified, pursuant to a general principle of good administration, at least where no active exercise of judgement was involved in the mistaken decision.
The JR claim is likely to determine whether this broader line of public law authority applies to immigration law, given that UKVI decisions confer a change in a person’s legal status, with implications for their relationship with the state and third parties.
The legal panel included a High Court judge to help deal with the issues, noting that “inadvertent error” might represent a new category of government mistake perhaps not addressed in the extant authorities.
The case may have significance beyond ILR, as the doctrine UKVI rely on could justify the cancellation of limited leave granted by mistake – and the breadth of the issues raised may ultimately transcend immigration law altogether.
