Can the Upper Tribunal or a Court award Indefinite Leave to Remain (‘ILR’) where the Home Office has historically frustrated an applicant’s ability to obtain ILR by acting unfairly?
My client claimed to have been continuously but unlawfully resident in the UK from 1997 to 2012. In 2012, he claimed ILR under the old 14 years’ rule in the pre-June 2012 Immigration Rules. The Home Office refused his claim on the basis he had been served with an ‘IS151A’ document in 2008. Under the old Rules the IS151A document ‘stopped the clock’ for the purposes of continuous residence under the 14 years’ rule. However, my client was adamant that the document was never served on him. Between 2012–2015 my client made several judicial review claims challenging the Home Office’s refusal to grant ILR. Each time, the Court or Upper Tribunal refused permission.
In 2018, my client obtained a forensic report which suggested that the Home Office had submitted different versions of the IS151A document in each of the historic judicial review proceedings and had thus misled the Court and Upper Tribunal. On receipt of the forensic report, the Home Office gave my client limited leave to remain. My client was no longer eligible to claim ILR under the Immigration Rules because under the post-June 2012 Rules 10 years’ continuous lawful residence was required, however he submitted a judicial review claim to the Upper Tribunal, challenging the Home Office’s decision to not grant ILR on the grounds of unfairness amounting to abuse of power. Following a paper refusal, the case was listed for an oral reconsideration hearing before Upper Tribunal Judge Allen.
It was clear that the Home Office had abused its power by circulating unreliable and/or misleading documents, but for which my client would have been granted ILR when he made his first application in 2012. The real issue at the permission hearing was whether the Upper Tribunal was entitled to order that my client be granted ILR as a remedy.
There are several authorities which address the Court’s ability to grant redress in instances of abuse of power. For example, in R v Secretary of State for Education and Employment ex part Begbie  1 WLR 1115, Laws LJ held that ‘[i]f there has been an abuse of power, I would grant appropriate relief unless an overriding public interest is shown’. The Home Office argued that the Supreme Court’s decision in TN and MA (Afghanistan) v SSHD  UKSC 40 to the effect that ‘it is not proper for a court to require the respondent to grant unconditional leave to an appellant … as a form of relief for an earlier error’ applied in my client’s case and that the Upper Tribunal therefore had no power to order that ILR be granted. I argued that my client’s case was distinguishable from TN and MA because his claim to ILR was based on the length of his residence in the UK, whereas the Court’s decision in TN and MA was limited to the asylum context. I alternatively argued that the Upper Tribunal could declare that the Home Office – having a general discretion to award ILR under sections 3 and 4 of the Immigration Act 1971 – had failed to take into account its own historic abuse of power in frustrating my client’s ILR claim, and that the decision was thus Wednesbury unreasonable.
Upper Tribunal Judge Allen granted permission to apply for judicial review.
It would not be surprising if the Home Office sought to settle my client’s claim by awarding him ILR, but if the case does proceed to a full judicial review hearing then it will be interesting to see what the Upper Tribunal’s decision is.
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