Meilin Huang & Ors, R (on the application of) v The Secretary of State for the Home Department

A refusal to transfer a No Time Limit endorsement or issue a biometric residence document is a decision made under the immigration legislation. Where the statutory transfer conditions are met, a judicial review challenge to that refusal falls within the Upper Tribunal’s jurisdiction.

Where the real concern is that indefinite leave to remain was obtained by deception, it is unjustifiable to leave that leave in force while refusing the document that evidences it. The Secretary of State should instead give the person an opportunity to show cause why the leave should not be revoked. If leave is not revoked, an NTL endorsement or biometric residence permit should normally follow.

Five Chinese nationals had obtained indefinite leave to remain under identities containing inaccurate personal details. When they later applied to transfer the NTL endorsement to passports showing their asserted true identities, the Secretary of State refused each application because the passport identity did not match the identity under which indefinite leave had been granted.

The claims were lodged in the Upper Tribunal. They were initially transferred to the Administrative Court on the view that the Tribunal lacked jurisdiction. The common issues were whether the NTL refusals were decisions within the Tribunal’s judicial-review jurisdiction and whether refusal was lawful where the respondent accepted the applicants’ identity but considered that deception had tainted the grant of leave.

1. The claims succeeded in principle. Mr Justice Collins held that the Upper Tribunal had jurisdiction. A decision whether to replace an endorsement recording leave was made under the Immigration (Biometric Registration) Regulations 2008, an instrument having effect under the UK Borders Act 2007. That Act was an Immigration Act. The statutory conditions for mandatory transfer under section 31A of the Senior Courts Act 1981 were therefore met.

2. Independently, refusal to transfer an NTL endorsement had immigration consequences. It could prevent re-entry to the United Kingdom and create difficulty in establishing that the passport-holder was the person entitled to remain. It therefore related to leave to enter or remain.

3. The respondent accepted that the true concern was not a different identity but deception in obtaining indefinite leave to remain. Refusing an NTL or biometric residence permit while allowing the allegedly fraud-tainted leave to subsist was held to be unjustifiable.

4. In such cases, the proper course was to notify the applicant that they must show cause why indefinite leave should not be revoked. That process permits consideration of the deception, any explanation, and whether leave should continue. If leave is revoked, consequential action may follow. If it is not revoked, an NTL endorsement or biometric residence permit should normally be issued.

5. The challenged refusals were erroneous to that extent. The judge reserved the precise orders after hearing counsel.

• Upper Tribunal (Immigration and Asylum Chamber): The claims were lodged in the Tribunal but initially transferred to the Administrative Court because the Tribunal was thought to lack jurisdiction. Mr Justice Collins held that the Tribunal had jurisdiction and determined the claims sitting as a judge of that Tribunal.