Hashmi, R (on the application of) v Secretary Of State For Home Department

A considered written immigration decision may itself grant indefinite leave to remain. Endorsement of a passport is an administrative act which records or evidences that decision; it is not necessarily the decision itself.

For section 4(1) of the Immigration Act 1971, written notice may be communicated through an MP or another representative where the correspondence shows that the person acted for the applicant. A properly granted leave cannot ordinarily be withdrawn merely because circumstances later change. Exceptional circumstances, including fraud or misrepresentation in obtaining leave, may justify a different result.

The claimant, a Colombian national married to a British citizen, sought judicial review after the Home Office declined to endorse her and her dependants’ passports with indefinite leave to remain.

A Home Office letter of 11 July 2000, sent in response to representations through the claimant’s husband and MP, stated that the family might be granted indefinite leave immediately. After the passports were supplied, the claimant’s husband said that the marriage had broken down. The Secretary of State later refused indefinite leave because the marriage was no longer subsisting.

Cresswell J dismissed the claim on 1 November 2001. The appeal concerned whether the July letter was itself a valid grant of leave and valid written notice, and whether the Secretary of State could reverse it because of the later change in circumstances.

1. Appeal allowed unanimously. Sir Swinton Thomas gave the judgment, with Lord Justice Kay and Lord Justice Brooke agreeing. The letter of 11 July 2000 communicated a considered decision by the Home Office. Its statement that the family might be granted indefinite leave immediately could only mean that leave had been granted, subject to the administrative formality of submitting the passports for endorsement.

2. The passport endorsement was not the decision to grant leave. It was an administrative act which could evidence a decision already made. Minton v Secretary of State for the Home Department [1990] Imm AR 199 was distinguishable because that case concerned an illegible stamp and no separate written notice.

3. The grant was not uncertain because the claimant’s daughter and granddaughter were not individually named. Read with the application, the letter identified the family whose passports were to be endorsed.

4. The statutory requirement of notice in writing under section 4(1) of the Immigration Act 1971 was met. On the correspondence, the claimant’s husband and MP acted as her representatives, and the letter was intended to communicate the grant to her through them.

5. The claimant satisfied the relevant requirements in paragraph 287(a) of the Immigration Rules when the grant was made. Once leave had been properly granted, the Secretary of State could not withdraw it merely because the marriage later ceased to subsist. The court recognised exceptional circumstances, such as fraud or misrepresentation in obtaining the leave, as a possible qualification. The appeal was allowed with costs.

• Court of Appeal (Civil Division): allowed the claimant’s appeal and reversed the dismissal of the judicial-review claim.
• High Court, Queen’s Bench Division, Administrative Court (Cresswell J): dismissed the claimant’s judicial-review claim on 1 November 2001.