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

The principle of legality protects fundamental rights from interference by general or ambiguous statutory language, but it does not convert non-citizens’ immigration permissions into fundamental rights. A Commonwealth citizen outside the narrow statutory class retains no common-law right of abode overriding the Immigration Act 1971. Indefinite leave to remain remains permissive leave, although its unlawful withdrawal or non-recognition may be remedied by judicial review.

An authority-to-carry scheme concerns permission to travel, not entitlement to enter, and may lawfully prevent travel where the statutory public-interest condition is met. A Stage 1 automatic-deportation decision is a substantive executive decision and places the individual within the process of making a deportation order. The refusal of authority to carry was proportionate and procedurally fair.

The claimant, a Pakistani national and Commonwealth citizen with indefinite leave to remain, challenged the refusal to authorise Emirates to carry him from Pakistan to the United Kingdom and his subsequent exclusion after his leave was cancelled. He argued that the authority-to-carry provision was ultra vires, that it did not apply before a Stage 2 deportation decision, that it breached article 8 and access to justice, and that the Secretary of State lacked power to exclude a Commonwealth citizen.

The court also considered whether the refusal of extensions of time to make representations was procedurally unfair. Grounds 1, 2 and 4 were heard substantively; permission was sought on Grounds 3A, 5 and 6.

1. Ground 1 dismissed. The claimant’s Commonwealth-citizen status did not confer a current common-law or statutory right of abode. Section 2 of the Immigration Act 1971 confined the statutory right of abode to British citizens and a narrow residual class of Commonwealth citizens. Other Commonwealth citizens require leave under section 3(1). Indefinite leave to remain is non-lapsing permission, not a fundamental right.
2. The authority-to-carry power under section 22 of the Counter-Terrorism and Security Act 2015 does not determine entitlement to enter. Section 22(7) expressly separates authority to carry from immigration entitlement. The principle of legality was therefore not engaged. The provision was within the statutory purpose and paragraph 14(f) was intra vires.
3. Ground 2 dismissed after permission was granted. A Stage 1 deportation decision is a decision in substance. It records that the Secretary of State has decided to deport the person under the automatic-deportation provisions, while inviting representations against deportation. It therefore places the person within the process of making a deportation order for paragraph 14(f), even though the Secretary of State must consider later representations and may ultimately refrain from making the order.
4. Ground 4 dismissed. The court assessed proportionality against the statutory scheme and the Secretary of State’s institutional competence. Parliament had struck a balance by limiting authority-to-carry schemes to classes whose inclusion was necessary in the public interest. The temporary character of the authority-to-carry refusal, the claimant’s serious drug and driving offences, and the public-safety risk outweighed the interference with article 8 rights.
5. Ground 3A failed. Since the authority-to-carry decision was lawful, it could not found an historic-injustice claim or require the Secretary of State to consider such an injustice when deciding exclusion.
6. Ground 5 failed. Following R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, immigration control over Commonwealth citizens is statutory rather than prerogative. R (G1) v Secretary of State for the Home Department [2012] EWCA Civ 867 concerned aliens and did not govern this case. The Secretary of State had statutory power to exclude by direction.
7. Ground 6 failed. A baseline period for representations, coupled with consideration of reasonable extensions, was procedurally fair. The claimant provided no adequate evidence that the requested six-month period, extensive expert evidence, or further extensions were necessary.

Permission was refused on Grounds 3A, 5 and 6. The court proposed to dismiss the claim, subject to an anticipated application concerning R (FD) v Secretary of State for the Home Department, which was not determined.

The claim was issued on 20 December 2024. On 17 February 2025, Cavanagh J granted permission on Grounds 1 and 4 and refused permission on Grounds 2 and a separate Ground 3. The claimant renewed permission on Ground 2, and the claim was later amended to challenge the exclusion decision on Grounds 3A, 5 and 6.

The present court granted permission on Ground 2, dismissed Grounds 1, 2 and 4 substantively, and refused permission on Grounds 3A, 5 and 6. Final disposal and consequential matters were adjourned.