Updates, commentary, training and advice on immigration and asylum law

No implied limits on power to revoke indefinite leave to remain


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

R (J1) v Special Immigration Appeals Commission & Anor [2018] EWHC 3193 (Admin) looked at the correct interpretation of two sections of the Nationality, Immigration and Asylum Act 2002.

Section 76(1) of that Act says:

The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person—

(a) is liable to deportation, but

(b) cannot be deported for legal reasons.

That was the case with J1, an Ethiopian citizen. He appealed. Relevant to his appeal was section 85(4) of the same Act, which says that the tribunal

may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

Nevertheless the Special Immigration Appeals Commission, SIAC, had held that it could only decide the appeal based on the facts of the case when the decision to revoke J1’s indefinite leave to remain was made. J1 wanted SIAC to take into account the facts as they stood on the date of the appeal instead.

Mr Justice Supperstone backed SIAC on this point, holding that

the appeal against the revocation of the Claimant’s ILR is to be considered by reference to the facts in existence at the time of the decision unless Article 8 ECHR is engaged.

So the next question was whether Article 8 was engaged in this case. It was not. Supperstone J followed the statement of Underhill LJ in MS (India) [2017] EWCA Civ 1190 that “I do not believe that the refusal of ILR as such engages Article 8 at all”. If and when J1 is granted limited leave with conditions in place of indefinite leave to remain, then Article 8 might kick in (see paragraphs 64 and 71).

Finally, counsel for J1 argued that there are implied limits on the section 76(1) power to revoke indefinite leave to remain. For instance that, there should be “some prospect” of deportation taking place for the power to be used. Supperstone J dismissed this one as well.

Relevant articles chosen for you
CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.