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No implied limits on power to revoke indefinite leave to remain

No implied limits on power to revoke indefinite leave to remain

R (J1) v Special Immigration Appeals Commission & Anor [2018] EWHC 3193 (Admin) looked at the correct interpretation of two sections of the Nationality, Immigration and Asylum Act 2002.

Section 76(1) of that Act says:

The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person—

(a) is liable to deportation, but

(b) cannot be deported for legal reasons.

That was the case with J1, an Ethiopian citizen. He appealed. Relevant to his appeal was section 85(4) of the same Act, which says that the tribunal

may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

Nevertheless the Special Immigration Appeals Commission, SIAC, had held that it could only decide the appeal based on the facts of the case when the decision to revoke J1’s indefinite leave to remain was made. J1 wanted SIAC to take into account the facts as they stood on the date of the appeal instead.

Mr Justice Supperstone backed SIAC on this point, holding that

the appeal against the revocation of the Claimant’s ILR is to be considered by reference to the facts in existence at the time of the decision unless Article 8 ECHR is engaged.

So the next question was whether Article 8 was engaged in this case. It was not. Supperstone J followed the statement of Underhill LJ in MS (India) [2017] EWCA Civ 1190 that “I do not believe that the refusal of ILR as such engages Article 8 at all”. If and when J1 is granted limited leave with conditions in place of indefinite leave to remain, then Article 8 might kick in (see paragraphs 64 and 71).

Finally, counsel for J1 argued that there are implied limits on the section 76(1) power to revoke indefinite leave to remain. For instance that, there should be “some prospect” of deportation taking place for the power to be used. Supperstone J dismissed this one as well.

CJ McKinney

CJ is Free Movement's deputy editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering submissions. When not writing about immigration law, CJ covers wider legal affairs at the website Legal Cheek and on Twitter: follow him @mckinneytweets.

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