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

Entry-clearance endorsements stating validity dates do not, without more, constitute conditions governing leave to enter. Where a person becomes subject to immigration control after ceasing to be exempt, the statutory 90-day grace period is not interrupted by travel abroad unless a fresh grant of leave to enter is evidenced. A pledge of public faith cannot arise without evidence that leave was granted in error. Legitimate expectation also requires a clear representation or established practice by the public authority. Guidance does not take precedence over statutory materials where no conflict exists.

The claimants, Pakistani nationals formerly connected with a diplomatic mission, challenged the Secretary of State’s refusal of applications for indefinite leave to remain. They argued that passport endorsements operated as entry clearance and leave to enter until 7 October 2008, including after their return from Ireland. They also relied on a claimed pledge of public faith, legitimate expectation and departmental guidance. The Asylum and Immigration Tribunal had concluded that the applications were made after existing leave expired and that there was no right of appeal. The central issue was whether the claimants retained leave when their applications were made on 19 June 2008.

1. The claims were dismissed. The passport endorsements did not satisfy the requirements for entry clearance to take effect as leave to enter under Article 3 of the Immigration (Leave to Enter and Remain) Order 2000.
2. The dates appearing on the endorsements were not conditions for the purposes of Article 3. There was no stamp, document or other evidence showing that the claimants were granted leave to enter on their return from Ireland.
3. The grace period under section 8A of the Immigration Act 1971 began when the first claimant’s employment ended on 5 January 2008. It remained uninterrupted and expired on 5 April 2008. The trip to Ireland did not alter that position.
4. The alternative pledge of public faith argument failed because there was no evidence that leave had been granted in error. The departmental guidance concerning persons given leave in error therefore did not assist the claimants.
5. The legitimate-expectation argument failed because no representation had been made that entry clearance had been granted. The court also found no conflict between the statutory materials and the guidance.
6. The Secretary of State was awarded £600 in costs for preparing the acknowledgements of service, with no further costs for the hearing.

The judgment describes an earlier determination by the Asylum and Immigration Tribunal, promulgated on 29 October 2008, which declined to accept the notices of appeal because the applications were made after leave had expired. The Administrative Court dismissed the judicial review claims.