R (Boafo) v Secretary of State for the Home Department

An unappealed immigration adjudicator’s determination is binding on the parties. Its binding force is not lost merely because the adjudicator gave no directions under section 19(3) of the Immigration Act 1971.

The statutory appeal structure is ordinarily a review of the original executive decision on the facts then existing. The Secretary of State cannot ordinarily bypass an adjudicator’s favourable determination by treating the absence of directions as authority to decide the application afresh on later facts. Fresh evidence, including deception affecting the original facts, may exceptionally justify reopening a matter. Entry-clearance decisions may also require current inquiries for reasons not applicable to indefinite leave to remain.

Linda Boafo had applied for indefinite leave to remain as the spouse of a settled person under Immigration Rules 287. The Secretary of State refused the application in 1997. An immigration adjudicator allowed her appeal in January 1999, but made no directions under section 19(3) of the Immigration Act 1971.

After the marriage later ended in divorce, the Secretary of State reconsidered the application and in June 2000 refused to implement the adjudicator’s determination. Stanley Burnton J, in the Queen’s Bench Division, upheld that refusal on 24 January 2001.

The appeal concerned whether the Secretary of State could, because the adjudicator had given no directions, disregard the unappealed determination and make a fresh decision by reference to later circumstances.

1. Appeal allowed unanimously. Lord Justice Auld delivered the principal judgment, with Lord Justice Ward and Lord Justice Robert Walker agreeing. The court quashed the Secretary of State’s decision and directed the grant of indefinite leave to remain.

2. The immigration appeal machinery under section 19 of the Immigration Act 1971 is ordinarily one of review, not a rehearing. An adjudicator and the Immigration Appeal Tribunal normally decide whether the original decision was lawful by reference to the facts and circumstances at its date.

3. An unappealed adjudicator’s determination is binding on the parties. The absence of directions under section 19(3) does not, in an indefinite-leave case, make the determination incomplete or permit the Secretary of State to decide the matter afresh. Directions are discretionary and are not needed in every case where an appeal succeeds. Treating their absence as decisive would substantially undermine the statutory appeal route under section 20.

4. The court distinguished the entry-clearance context of R v Secretary of State, ex p Yousuf, [1989] Imm AR 554. That decision did not establish a general rule that the Secretary of State is unfettered whenever an adjudicator gives no directions. Indefinite leave under Immigration Rules 287 confers permanent status, whereas entry clearance requires further contemporaneous examination and is subject to a further appeal.

5. The court accepted that genuinely fresh evidence, such as deception of the adjudicator about facts relevant to the original decision, may in an appropriate case permit reopening without an appeal. That possibility did not justify reliance on the later breakdown of this marriage. The Secretary of State’s decision was quashed, indefinite leave was directed, and costs were awarded to the appellant.

• Court of Appeal (Civil Division) In [2002] EWCA Civ 44, allowed the appeal, quashed the Secretary of State’s June 2000 decision, and directed the grant of indefinite leave to remain.
• Queen’s Bench Division Stanley Burnton J, on 24 January 2001, upheld the Secretary of State’s decision refusing to implement the adjudicator’s determination.