Ogilvy, R (on the application of) v Secretary of State for the Home Department

Indefinite leave to remain which remains in force after travel outside the United Kingdom is treated, on the holder’s arrival, as leave to enter for the purposes of paragraph 2A of Schedule 2 to the Immigration Act 1971. An immigration officer may examine the holder to determine whether changed circumstances justify cancellation of that leave and may suspend it while the examination remains incomplete. Examination begins when the travel document is considered. Allegations of criminal conduct may justify examination and suspension; a charge or conviction is not required, and the power is not confined to allegations of terrorism or murder. Temporary admission and provision of a certified travel-document copy may mean that no material prejudice is caused. A decision referring to paragraph 2A and continuing leave is sufficiently intelligible.

The claimant had indefinite leave to remain and returned to the United Kingdom after travelling abroad. Following his arrest in connection with allegations of theft, deception and arson, the Secretary of State suspended his leave, retained his travel document and granted temporary admission pending further police enquiries. No charges were brought, the enquiries concluded, and the document was returned.

The claimant sought judicial review, arguing principally that paragraph 2A of Schedule 2 to the Immigration Act 1971 applied only to leave to enter and could not be used in relation to indefinite leave to remain. The central issue was the effect of article 13(5) of the Immigration (Leave to Enter and Remain) Order 2000.

1. The application for judicial review was refused. The Secretary of State had acted within the statutory scheme and had not acted unlawfully, perversely, unfairly or irrationally.

2. Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 applied because the claimant held indefinite leave to remain. Under article 13(5), leave to remain which remained in force was to be treated, on arrival, as leave to enter granted before arrival for the purposes of paragraphs 2 and 2A of Schedule 2 to the Immigration Act 1971. The claimant therefore required leave to enter, although he did not require entry clearance.

3. Paragraph 2A applied to a person arriving with continuing leave. It permitted examination to establish whether changed circumstances justified cancellation. Examination began when the immigration officer considered the claimant’s travel document. It was not necessary for the officer to conduct a lengthy or formal interview before the power arose.

4. Because the examination remained incomplete pending the police enquiries, paragraph 2A(7) conferred power to suspend the leave. The allegations of theft, deception and arson were sufficient material for the officer to consider whether circumstances had changed. There was no rule restricting suspension to terrorism or murder cases, and neither a charge nor a conviction was required.

5. The temporary-admission arrangements and certified copy of the travel document caused no prima facie prejudice. The decision letter, read with paragraph 2A, made clear that the leave referred to was leave to enter and was not unintelligible.

6. Permission to appeal was refused. The proposed appeal had no realistic prospect of success and there was no other compelling reason to grant permission.

Permission to argue the principal issue was granted by a single judge on 9 May 2007. The Administrative Court then refused the judicial review claim and refused permission to appeal to the Court of Appeal.