Ali, R (on the Application of) v Secretary of State for the Home Department

Where a person with existing exceptional leave to remain applies properly for indefinite leave to remain, the application must be engaged with and determined within the statutory immigration framework. A refusal based on alleged deception connected with the original grant of leave is an immigration decision carrying a right of appeal. The Secretary of State cannot instead treat the application as further submissions on an asylum claim without identifying a statutory route, authority, policy or established practice permitting that course. A purported decision which fails to address the ILR application is ineffective, leaving the application pending and continuing leave under section 3C of the Immigration Act 1971.

The claimant had been granted four years’ exceptional leave to remain after an asylum claim and applied in time for indefinite leave to remain. The application remained undetermined for more than six years. The Secretary of State subsequently treated it as further submissions on an asylum claim, relying on an allegation that the claimant had previously claimed asylum under other identities, and refused asylum, humanitarian protection and further leave.

The claimant challenged that approach. The central issue was whether the Secretary of State could treat the ILR application in that way, thereby avoiding an immigration decision carrying a right of appeal, or whether she had to determine the ILR application itself.

1. The claim succeeded on ground 1. The court declined to determine the remaining grounds because both parties agreed that the case turned on the treatment of the ILR application.

2. The Secretary of State had not substantiated the argument that an application for ILR by a person holding exceptional leave could be treated as a free-standing application carrying no right of appeal. That proposed consequence would be highly surprising in light of the range of decisions within section 82(2) of the Nationality, Immigration and Asylum Act 2002.

3. The statutory scheme contemplated that alleged deception discovered after a grant of leave could be relied upon when refusing ILR. Such a refusal would be an immigration decision giving rise to a right of appeal, enabling the First-tier Tribunal to determine, on evidence, whether material deception had occurred.

4. The Secretary of State might in some circumstances be able lawfully to depart from that framework. However, she had identified no statutory route, authority, policy or practice permitting the approach taken. The proper course was to engage with and determine the ILR application, refusing it if appropriate on grounds of deception.

5. The purported decision letter failed to engage with the ILR application and was null and void. The application therefore remained pending, the claimant retained continuing leave under section 3C of the Immigration Act 1971, and the Secretary of State was directed to determine the application forthwith. The Secretary of State was ordered to pay the claimant’s reasonable costs, subject to assessment if not agreed.

This was a first-instance judicial review. The court granted declarations, directed the Secretary of State to determine the ILR application forthwith, and ordered payment of the claimant’s reasonable costs.