KP (Sri Lanka) v Secretary of State for the Home Department

An internal immigration record which appears to approve indefinite leave to remain does not necessarily constitute a final administrative decision. The record must be assessed in context, including whether implementation steps remain incomplete and whether a prompt subsequent entry records a contrary outcome. Where the matter has not been communicated, an authorised decision-maker may reconsider it within a short period and reach a different conclusion. The decision-making process is not fixed when an officer completes the first internal entry. A later entry cannot be ignored.

The appellant sought permission to appeal against the Upper Tribunal’s refusal of permission to bring judicial review proceedings concerning the Secretary of State’s handling of his immigration status. The proposed challenge was narrowed to an allegation that a computer case record dated 24 May 2010 granted indefinite leave to remain and that the Secretary of State failed to communicate and implement it. A further record dated 25 May 2010 directed removal action. The central issue was whether the first entry was a final, binding decision which could not be revisited before communication.

Lord Justice David Richards refused the renewed application for permission to appeal.

1. Nature of the 24 May entry. The entry had many appearances of a decision to grant indefinite leave to remain. It contained reasons and referred to a grant outside the Immigration Rules. However, the immediately following implementation section was incomplete, including provisions concerning checks and implementation. It was therefore highly doubtful that the entry was a final decision rather than an internal preliminary step.
2. Reconsideration before communication. Even if the entry constituted a decision, the decision-making process was not subject to the rigid finality contended for. An authorised decision-maker could reconsider an uncommunicated decision within a very short period and reach a different conclusion. The later, contrary entry could not be ignored. The two entries reflected stages in a continuing decision-making process.
3. Disposition. It was not seriously arguable that the 24 May entry alone created a decision binding on the Secretary of State. There was consequently no arguable basis for judicial review in respect of that entry, and permission to appeal was refused. The court made clear that this conclusion did not determine the relevance of the entry to subsequent judicial review proceedings, whose papers were not before it.

• Court of Appeal (Civil Division): On a renewed application, refused permission to appeal. The court held that the internal entry did not arguably constitute a binding decision to grant indefinite leave to remain. [2015] EWCA Civ 291
• Upper Tribunal (Immigration and Asylum Chamber): Judge Gill refused permission to bring judicial review proceedings concerning the Secretary of State’s handling of the appellant’s case.