FD, R (on the application of) v Secretary of State for the Home Department

A power to refuse authority to carry under an authority-to-carry scheme made under the Counter-Terrorism and Security Act 2015 must be construed in the statutory context and purpose. It cannot be used to prevent the return of a person who poses no terrorism-related threat merely because he is subject to a deportation order. A decision-maker must also take account of obviously relevant facts. Reliance on materially mistaken facts renders the exercise of discretion irrational.

An unqualified official communication may create a legitimate expectation of a substantive benefit where it would objectively be understood as promising that benefit. The public authority may depart from a mistaken communication concerning immigration status, but not in a way that defeats a legitimate expectation of return on which the individual reasonably relied.

The claimant, a long-term resident and Jamaican national, challenged three decisions made while he was stranded in Turkey: refusal of authority to carry him to the United Kingdom, removal of his eVisa showing settled status, and refusal of his outstanding asylum and human rights claim.

The claimant had previously been subject to a deportation order. In December 2024, the Secretary of State communicated that his application for a No Time Limit endorsement had succeeded, stated that he had indefinite leave to remain, and issued an eVisa recording settled status. He travelled to Turkey relying on that communication. The central issues were whether the authority-to-carry scheme applied, whether the claimant had a legitimate expectation that he could return, whether the eVisa could lawfully be withdrawn, and whether the later refusal of his 2019 claim was lawful.

1. Authority to carry. The refusal of authority to carry was unlawful and was quashed. Section 22 of the Counter-Terrorism and Security Act 2015, read with the statutory purpose and the Authority to Carry Scheme 2023, was directed to terrorism-related threats. The words requiring necessity in the public interest could not be construed as authorising refusal of return to a person presenting no terrorism-related threat merely because he was subject to a deportation order. The decision was therefore outside the lawful scope of the scheme.
2. The discretion was independently irrational. The decision-makers relied on materially mistaken information, including an assumption that the claimant’s outstanding claim had been decided against him by a judge and that no appeal remained. They failed to consider that the claim had not been decided or communicated, the effect on an in-country right of appeal, and what the December 2024 communication had led the claimant reasonably to believe.
3. Legitimate expectation. The December 2024 email, read with the eVisa, objectively and unambiguously communicated that the claimant had indefinite leave to remain, was no longer subject to immigration bail or a deportation order, and could travel and return within the relevant period. The expectation was clear, unqualified and reasonably relied upon when the claimant travelled to Turkey.
4. It would have been grossly unfair and disproportionate to defeat the expectation of return. The Secretary of State could, however, correct the mistaken communication and depart from the mistaken grant of indefinite leave to remain, because there had been no wider reliance and there was a significant public interest in determining the revocation of a deportation order through conscious substantive decision-making. That correction could not prevent the claimant’s return.
5. The eVisa could lawfully be revoked only if its revocation did not thwart the claimant’s legitimate expectation of return. Its absence remained unlawful insofar as it continued to prevent that return, and it was quashed to that extent. Article 8 ECHR was relevant only to a possible claim for damages; the substantive unlawfulness did not depend on it.
6. The refusal of the 2019 claim was quashed. Although the timing did not establish a deliberate plan or conspiracy, the decision was made while the claimant had been unlawfully prevented from returning, and its timing materially altered his rights. The Secretary of State was to determine the claim afresh through the proper process, with the claimant permitted to return and subject, if appropriate, to immigration bail pending resolution.

The claim was transferred to the Administrative Court from the Upper Tribunal (Immigration and Asylum Chamber) on jurisdictional grounds after protective proceedings were issued. Interim relief had previously been refused by Lieven J. The Administrative Court allowed the judicial review on the principal grounds and quashed the relevant decisions.