The case of The Queen (on the application of C1) -v- Secretary of State for the Home Department [2022] EWCA Civ 30 dealt with the issue of whether the Secretary of State has the power to cancel indefinite leave to remain when its holder is outside the UK.
The facts of the case are that C1 was granted Indefinite Leave to Remain “ILR” in 2017. He left the United Kingdom for Iran on 21 November 2018. On 26 November 2018, while C1 was outside the United Kingdom, the Secretary of State personally decided to exclude him from the United Kingdom on the grounds that his presence in the United Kingdom was not conducive to the public good, and cancelled his ILR.
C1 eventually returned to the UK and was detained on the grounds that he was an illegal entrant. C1 applied for judicial review of a decision of the Secretary of State to detain him. The issue before the judge was whether article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 only permits the cancellation of limited leave to remain held by a person who is outside the UK, or does it also cover indefinite leave to remain.
The judge ruled that article 13(7) only permits the cancellation of limited leave to remain held by a person who is outside the United Kingdom and does not permit the Secretary of State to cancel ILR held by a person who is outside the United Kingdom; that the purported cancellation of C1’s ILR was of no effect; and that C1’s detention was unlawful as a result.
On Secretary of State’s appeal against this decision, the Court of Appeal found that Section 3B of the 1971 Act authorises a power, and article 13(7) of the Order confers a power, to cancel both limited and indefinite leave to remain which are in force by virtue of article 13.