Secretary of State for the Home Department v MK (Tunisia)

When extant leave to enter is cancelled while its holder is abroad, and the cancellation constitutes a variation within section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002, the holder may return during the applicable appeal period to bring an in-country appeal.

Section 3D of the Immigration Act 1971 extends the leave during that period. The statutory references to presence in the United Kingdom concern the bringing and pendency of the appeal, not the person’s location when the variation decision was made. A power to prevent re-entry cannot be implied contrary to that statutory language.

The respondent, a Tunisian refugee with indefinite leave to enter, was extradited to Italy. While he was outside the United Kingdom, the Secretary of State cancelled that leave on national-security grounds under article 13(7)(a) of the Immigration (Leave to Enter and Remain) Order 2000. The Secretary of State accepted that the cancellation attracted a statutory appeal, but maintained that it could be brought only from abroad.

Collins J declared that the respondent had an in-country right of appeal and was entitled to return to exercise it. The Secretary of State appealed. The central issue was whether sections 3D of the Immigration Act 1971 and 92 of the Nationality, Immigration and Asylum Act 2002 extended the respondent’s leave and permitted his return during the period allowed for bringing an in-country appeal.

1. Appeal dismissed unanimously. Pill LJ gave the leading judgment. Rix and Lloyd LJJ agreed.

2. The accepted classification of the cancellation as a variation within section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 engaged the right of appeal under section 82(1). Sections 92(1) and (2) permitted an appeal against that kind of immigration decision to be brought while the appellant was in the United Kingdom.

3. Section 3D of the Immigration Act 1971 extended the respondent’s leave during the period in which an in-country appeal could be brought. Despite the purported cancellation, the right to enter therefore continued for the short period specified by regulation 8(1)(b) of the Special Immigration Appeals Commission (Procedure) Rules 2003. The respondent could enter during that period and then exercise his right of appeal.

4. The words concerning presence in the United Kingdom in section 3D(2) attached to the appeal, rather than to the Secretary of State’s antecedent decision. Section 92 employed the same structure. There was no textual basis for an implied requirement that the person be present when notified of the variation.

5. Section 3D(3), under which extended leave lapses when the person leaves the United Kingdom, did not govern someone who was already abroad when the variation was made. The ten-day period for an in-country appeal was compatible with a right of return. It merely required the valuable appeal right to be exercised promptly.

6. Lloyd LJ added that the express requirements of presence at the time of the relevant decision in sections 92(3)(a) and 92(3D)(a) contradicted the proposed implication into sections 92(1) and (2). Section 3D(2)(a) addressed the period before an appeal was brought and did not require presence. Continuous presence became necessary after an in-country appeal had been instituted.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The court affirmed that the respondent had an in-country right of appeal and could return during the applicable appeal period.
2. High Court, Queen’s Bench Division, Administrative Court: Collins J upheld the judicial review claim and declared that the respondent had an in-country right of appeal against cancellation of his leave and was entitled to return to exercise it. No neutral citation is stated in the judgment.