Court of Appeal rules on mistaken ILR grant withdrawal

The Court of Appeal has ruled, by a majority (Lord Justice Dingemans, Senior President of Tribunals and Lord Justice Cobb; Lady Justice Laing dissenting) that the Home Secretary has the power to withdraw a decision letter mistakenly granting an applicant Indefinite Leave to Remain (ILR) and replace it with a decision granting only limited leave to remain. The case is R (on the application of YC) v Secretary of State for the Home Department [2026] EWCA Civ 285.

Facts

The appellant is a national of China, born in 1971. He made an asylum claim in March 2019, asserting that he had been attacked in China by loan sharks in 1999 and then made his way to the UK with the assistance of traffickers. YC is married with children; he suffers from ill-health including incurable cancer for which he is receiving palliative treatment.

On 13 November 2023, the appellant was provided with a decision letter informing him that his asylum claim had been refused but that he had been granted leave on the basis of his private life in the UK. This letter also stated that the appellant had been granted “settlement (also known as indefinite permission to stay) in the UK” and linked to a government webpage explaining what a grant of indefinite leave meant.

The letter’s references to settlement and ILR were erroneous; the SSHD’s intention had been to grant 30 months’ limited leave to remain (LTR) as is usual in private life cases. The mistake became apparent when, in December 2023, YC was issued with a Biometric Residence Permit reflecting a grant of leave to remain. When his representatives made enquiries with the Home Office, the SSHD responded by issuing a second, backdated decision-letter, which correctly referred to YC having been granted 30 months’ limited leave.

YC sought judicial review of the decision purporting to replace the November 2023 letter with that issued in December. It was common ground that (1) YC had not applied, and was ineligible for ILR under the Immigration Rules (though the possibility of a grant outside the Rules was noted) (2) it had been the SSHD’s intention to grant LTR and (3) the November 2023 letter nevertheless constituted a valid grant of ILR ([22]-[23]).

The question for the court was whether the SSHD had the power, where she had mistakenly communicated the wrong decision to an applicant, to withdraw that decision and replace it with the decision she had intended to make.

No express statutory provision conferring such a power exists. Parliament did provide, in s 76 of the Nationality, Immigration and Asylum Act 2002, for a power to revoke indefinite leave to remain or enter in specified circumstances, none of which were relevant to the appellant. The SSHD argued that the court should imply a power to withdraw the mistaken grant as incidental or ancillary to the exercise of her statutory immigration powers under the Immigration Act 1971, the existence of implied powers in this field having been recognised by the Supreme Court in R (New London College Ltd) v SSHD [2013] UKSC 51.

The Upper Tribunal’s analysis

The Upper Tribunal (Bourne J, UTJ Loughran) dismissed YC’s claim in a decision dated 12 March 2025. The UT was referred to a number of immigration cases (on behalf of the appellant) as well as case-law from the broader public law context (for the Secretary of State).

The UT thought that none of the cases cited were “precisely on point” (UT, [46]). Of the immigration cases, the closest was R (Rechachi and others) v SSHD [2006] EWHC 3513 (Admin). But that case turned on the validity of the original grant and, although Davis J had observed that he was not pointed “to any statutory power entitling the Secretary of State to revoke or alter a status document on the ground of unilateral mistake” (at [97.3]), it did not seem that he was addressed on that question.

The public law cases did not help as, in the UT’s view, the question of whether a specific type of decision could be corrected always depended on the factual and legal context. Nor was this case truly about a fundamental mistake of fact, as those cases had been. Rather, the Respondent intended to grant LTR but “through a clerical error” used a letter template communicating an “unintended” grant of ILR. In other words, “the question is whether the Respondent can correct an error of the kind described where by pure inadvertence the wrong decision is communicated.” (UT, [52])

A “mere ‘slip rule’” could not provide an answer, given the significant differences between the correct grant of limited leave and the incorrect grant of ILR (UT, [53]). Nevertheless, an implied corrective power did exist in a case such as this – holding otherwise could have “serious consequences for the public interest”, e.g. where ILR was mistakenly granted to an applicant with serious criminal convictions (UT, [57]). Denying the existence of such a power would also result in a failure to treat like cases alike and amount to a triumph of process over common sense.

The Court of Appeal’s judgment

Lord Justice Cobb concluded that, although “[e]vident caution” should be exercised before recognising the existence of an implied power attaching to a minister exercising their statutory functions, in this case the SSHD did have the claimed power. This was for five key reasons (summarised at [62]):

1. The grant of ILR in this case was a “manifest error” which should have been immediately apparent to YC/his advisers
2. The SSHD had a “well-established” power to withdraw decisions adverse to an applicant; though there was “no complete equivalence” between the withdrawal of the two types of decision there was no reason in principle why such a power should not exist in respect of decisions favourable to applicants
3. There was a clear public interest in immigration status only being granted where the relevant criteria had been fulfilled
4. The absence of statutory provision for the asserted power did not preclude its existence as an implied or ancillary power. It would be “unusual for Parliament to legislate specifically to address the consequences of human or technological error in administrative decision-making”, rather, the corrective power was “an incidental administrative power of the kind contemplated by Lord Sumption in New London College ” ([72]-[73])
5. “Procedural form should not be allowed to triumph over common sense”, or over considerations of utility and proportionality ([76]). However, Cobb LJ added that there were “important limitations” ([62]) on the implied power: namely, those provided by conventional public law principles ([78]). The withdrawal of a decision favourable to an applicant was capable of having “profound”consequences which called for “close judicial scrutiny” of any exercises of the power ([79]).

Lady Justice Elisabeth Laing disagreed with Cobb LJ’s reasoning.

Firstly, it was clear that the statutory scheme was intended to be a “complete code” about ILR, which was a “special status … different from other forms of leave” ([83]). That is why Parliament had made express provision for its revocation in the limited circumstances envisaged by s 76 of the 2002 Act. The SSHD was seeking to “expand” the express power in s 76 beyond what Parliament had authorised; the claimed power was “not ‘incidental’” to the power to grant ILR but its “antithesis” ([85]).

Secondly, this was not a case like R v Bassetlaw District Council, ex parte Oxby ** [1998] PLCR 283 ** (where the Court of Appeal had permitted a judicial review claim brought by the leader of a local authority at its behest to achieve the quashing of a planning permission, despite the existence of a statutory mechanism for revoking permission). The SSHD had considered and opted against seeking an order quashing the grant. In any case, no doubt had been cast on the lawfulness of the grant. The fact that it was mistaken was neither here nor there; the grant would subsist until and unless quashed by a court. It was also of “concern” that no evidence of the SSHD’s actual decision-making had been put before the court; it was for the SSHD and her officials to avoid making mistakes, not for the courts to correct them ([88]).

Thirdly, there was a relevant difference between the withdrawal of a decision adverse to a claimant and the withdrawal of a decision favourable to a claimant. The latter had the potential to affect the position of third parties. Where the SSHD had granted ILR, she had in effect exhausted her ability to grant ILR to that applicant. By contrast, following a refusal, the SSHD still had that power, and a withdrawal of a refusal was therefore “self-evidently different in principle” from the former scenario ([89]).

Lord Justice Dingemans, Senior President of Tribunals, agreed with Cobb LJ that the appeal fell to be dismissed. He considered that “as a matter of public law the Secretary of State has the power to correct obvious clerical errors made exercising powers under section 4 of the IA 1971 which are reasonably apparent to the beneficiary of the error” ([94]). The existence of the s 76 revocation power did not prevent this conclusion as Parliament might “reasonably have assumed” the existence of a corrective power as described in this case ([95]). Lord Justice Dingemans agreed with Cobb LJ on the role of public law principles in policing the exercise of this power.

Observations

In siding with the Home Secretary, the majority endorsed what was acknowledged to be (see [56]) an extension of the scope of the corrective power recognised in the public law authorities to cover not just cases involving fraud or fundamental mistakes of fact but also clerical errors of the type at issue in YC.

However, the impact of this may be rather modest, as both judges in the majority emphaise that the power can only be exercised to correct manifest or obvious errors which should be apparent to the beneficiary ([63], [93]).

Furthermore, “[t]he promptness with which the Secretary of State acts to correct an obvious error will often be material; the longer the delay, the more difficult it may be to justify withdrawal” (Cobb LJ, [64]); linked to that is the issue of whether anything has been done in reliance on the erroneous grant, which will become likelier the longer a decision-maker takes to withdraw the decision. The Secretary of State will thus need to act expeditiously to be able to rely on this corrective power.

YC appears broadly in line with decisions from other public law contexts (although compare R (Piffs Elm Limited) v Commission for Local Administration in England & Another [2023] EWCA Civ 486, where Laing LJ adopted reasoning similar to her dissent in this case) in preferring a pragmatic over a technical approach, while emphasising that the exercise of any implied corrective power is subject to public law controls. At the same time, the question of whether a corrective power exists is likely to depend on the facts and statutory context.  In this connection, it is noteworthy that Cobb LJ cautioned (at [76])  that, to the extent that Haddon-Cave J’s judgment in R (Chaudhuri) v General Medical Council [2015] EWHC 6621 (Admin) (at [46] of that decision) could be read as implying that public authorities have a power to revisit “any decision undermined by a fundamental factual error” (emphasis in original), that might be thought “too broad”a statement.

Finally, it is interesting to note that the Home Office’s own caseworker guidance (cited at [36]-[37]) appears premised on there being no implied corrective power, with the statutory scheme indeed constituting a complete code. The lack of previous case-law in which the Home Office relied on such a power is similarly suggestive of the Home Office not previously having thought there was such a power. These points lend some irony to the fact that the judgment refers repeatedly to the “windfall” that the appellant was trying to secure by seeking to hold on to his erroneously granted ILR: it seems that the majority’s judgment may have bestowed a similarly unexpected benefit on the Secretary of State.

David Zuther

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