High Court confirms Home Secretary has no power to cancel Indefinite Leave to Remain while holder is outside the UK

Following many years of residence in the United Kingdom, C1 had been granted Indefinite Leave to Remain (ILR) in the UK in 2017.  In 2018 C1 flew abroad.  While he was abroad the Home Secretary cancelled C1’s ILR using powers which, she claimed, were contained in the Immigration (Leave to Enter & Remain) Order 2000, Article 13(7).  The effect of the Home Secretary’s decision was immediately to invalidate his ILR. 

However, the High Court granted C1’s application for judicial review of that decision and ruled that the Home Secretary’s reading of Article 13(7) was incorrect.  The High Court accepted the case advanced by C1’s representatives that the power to make the 2000 Order, in the Immigration Act 1971, did not confer any express power to cancel indefinite leave to remain.  The ruling confirms that a draconian measure that has frequently been used by the Home Secretary over many years has not, in fact, been authorised by Parliament.

The High Court declared at paragraph 1 of its Order granting C1’s judicial review that,

“Article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 (SI No 1161/2000) permits only the cancellation of limited leave to enter or remain and does not confer any power to cancel indefinite leave to remain.  Accordingly, the Defendant’s purported cancellation of the Claimant’s indefinite leave to remain on 27 November 2018 was of no effect.”

The first sentence of this declaration is of general application. 

The effect of the Court ruling was to deprive C1’s detention under immigration powers of lawful authority.

The Court of Appeal will imminently hear the Home Secretary’s appeal against the High Court’s ruling (case C4/2021/0457).

The High Court’s ruling is accessible here.

Anthony Vaughan was instructed by Waleed Sheikh of Leigh Day and led by Amanda Weston QC of Garden Court Chambers.