C1, R (On the Application Of) v Secretary of State for the Home Department

The power to cancel non-lapsing leave under Article 13(7) of the Immigration (Leave to Enter & Remain) Order 2000 did not extend to indefinite leave to remain. The enabling power in section 3B of the Immigration Act 1971 authorised provisions disapplying the statutory lapsing rule and incidental or supplemental provisions, but did not authorise a general power to cancel non-lapsing indefinite leave. The concepts of variation, cancellation and revocation were not interchangeable. Article 13(7) was therefore either ultra vires in its application to indefinite leave or had to be construed as applying only to limited leave. The claimant’s indefinite leave remained valid, so he was not an illegal entrant and could not be detained under Schedule 2.

The claimant had been granted indefinite leave to remain, travelled to Iran, and had his leave cancelled under Article 13(7) of the Immigration (Leave to Enter & Remain) Order 2000. He later returned to the United Kingdom by small boat and was detained under Schedule 2 to the Immigration Act 1971.

The judicial review concerned whether Article 13(7) authorised cancellation of indefinite leave to remain, whether it was intra vires section 3B of the 1971 Act, and whether the claimant was consequently an illegal entrant liable to detention.

1. The claim was allowed. Article 13(7) did not permit cancellation of indefinite leave to remain. If the provision were read as authorising that cancellation, it was beyond the power conferred by section 3B of the Immigration Act 1971.
2. Section 3B(2)(c) authorised subordinate legislation disapplying section 3(4), which otherwise caused leave to lapse on departure from the common travel area. It did not authorise provisions varying or cancelling non-lapsing leave. Section 3B(3)(a) could support incidental or supplemental provisions, but Article 13(7) was too wide and significant to be justified on that basis.
3. Article 13 had to be read as a whole. Article 13(6), which permitted variation of non-lapsing leave, applied only to limited leave because indefinite leave could not be varied under the statutory scheme. If cancellation under Article 13(7) was treated as a species of variation, it would be incoherent for the same concept to extend to indefinite leave under Article 13(7) but not Article 13(6).
4. The court rejected the submission that the 2000 Order merely mirrored the previous regime. Previously, indefinite leave lapsed by operation of section 3(4); the new regime removed that harshness. The enabling power permitted incidental adjustments, but not reinstatement of the lapsing rule at the Secretary of State’s discretion. Variation, cancellation and revocation were distinct concepts, as demonstrated by the separate power to revoke indefinite leave in section 76 of the Nationality, Immigration and Asylum Act 2002.
5. Because the cancellation was unlawful, the claimant’s indefinite leave continued. He did not require a fresh grant of leave to enter, was not an illegal entrant, and the power to detain him under paragraph 16(2) of Schedule 2 fell away. The parties were directed to agree the form of declaratory relief.