Home Office decision to “correct” grant of indefinite leave made in error held to be lawful

The Upper Tribunal has held that the Home Secretary has an implied power to correct inadvertent errors, following a judicial review brought by a man whose grant of leave erroneously referred to his being granted settlement instead of limited leave. The case is R (YC) v Secretary of State for the Home Department JR-2024-LON-000850

On 8 November 2023 YC received a decision letter from the Home Office stating that his asylum claim had been refused but he had been granted leave to remain based on his private life. The letter later said that he had been granted settlement.

On 5 December 2023 he received his biometric residence permit which noted a grant of “leave to remain”. The applicant’s representatives wrote to the Home Office asking for confirmation that he had been granted indefinite leave to remain. On 22 December 2023 the Home Office sent a corrected letter confirming that the grant was for permission to stay for two and a half years.

The applicant applied for judicial review of the decision to substitute the original decision with the new one, arguing that the Home Secretary did not have the power to revoke, withdraw or change the decision. The Home Secretary’s position was that she “has an implied power to withdraw and correct an erroneous decision which is incidental to her statutory powers under the Immigration Act 1971 (“the 1971 Act”), and that this is consistent with an approach which recognises the existence of such a power for public authorities generally”.

The Upper Tribunal identified the issue as “whether the Respondent can correct an error of the kind described where by pure inadvertence the wrong decision is communicated” and concluded:

57. Although the public law cases are not on all fours with this one, we agree with the comments of Haddon-Cave J in Chaudhari at [46]-[51] (whether or not they were part of the ratio of his decision). Where a corrective power exists, it can extend to correcting a decision which affects the rights of the parties, even in the important ways emphasized by Mr Symes. That is because, if the power did not exist, there could be serious consequences for the public interest, for example in a case where ILR had been inadvertently granted to a person who was disqualified for such a grant by having serious criminal convictions. Another important negative consequence would be a failure to treat like cases alike. And, on the facts of this case, as in Chaudhari, to deny the power would be “to allow process to triumph over common sense”.