Revocation of indefinite leave to remain – res judicata?

A case heard recently in the Court of Appeal called “Ullah” raised some interesting issues.

Mr Ullah is a Pakstani national. He had entered the UK illegally in 1996 and eventually acquired indefinite leave to remain under the old (no longer existing) 14-year rule, which enabled irregular migrants to achieve permanent status after that period had passed.

Importantly, his initial application to the Home Office had been refused, but he had been successful on appeal to the Immigration Tribunal.

This was in 2012 but, in 2013, a “denunciation” was sent to the Home Office. As the court explains it, this denunciation was made by “an unknown member of the public, apparently bringing into question the basis upon which the Appellant had applied for ILR”.

Apparently this letter contained information to the effect that Mr Ullah had at some point had two different passports with two different dates of birth,  and also included photocopies of the two different passports. (Somebody evidently had intimate knowledge of the situation.)

It seems that the Home Office wheels ground slowly, or maybe not at all, and it was not until January 2016 that they tackled Mr Ullah on this delicate subject. On this occasion he was returning from yet another visit to Pakistan and he was detained at the airport in the UK. (This, we observe, is a common phenomenon: it is often when entering the UK border that problems – or alleged problems – emerge about immigration history.)

He was given only temporary admission to the UK pending further investigations, such investigations suggesting that he had indeed had two passports, and that there was something dodgy going on. The Home Office came to the conclusion that he had used one of the passports to apply for UK visitor visas from Pakistan on three occasions between 2001 and 2004. This, not surprisingly, did not sit comfortably with the fact that in 2011 he had applied for indefinite leave to remain on the basis of having been continuously in the UK for the past 14 years.

When confronted with these allegations Mr Ullah said that he was not guilty of any wrongdoing, and that any dodgy stuff had been done by the “agent” who had originally facilitated his illegal entry to the UK. He maintained that he had been continuously in the UK for that 14-year period.

However, the Home Office did not believe him and his indefinite leave was revoked. He had the right of administrative review, and here he (or perhaps his lawyers) raised an interesting legal doctrine: res judicata.

Res judicata is about finality of legal decision-making. If, for example, somebody is accused of a criminal offence and found not guilty then the prosecuting authorities cannot (unless there are some very compelling reasons) prosecute them again for the same offence.

It is a very fair principle in some contexts but could it extend to Mr Ullah’s situation? Mr Ullah said that the Immigration Tribunal had determined that he was entitled to indefinite leave to remain in 2012 and it was therefore, bearing in mind the res judicata principle, unlawful for the Home Office to take it away from him now.

Admirably, the Home Office administrative reviewer knew the meaning of “res judicata” and engaged with the argument. They said that Mr Ullah’s position was flawed because the Home Office was not aware of the two passports/three visitor visa applications issues at that time in 2012. So administrative review failed.

But Mr Ullah was not to be deterred and he applied for Judicial Review with the Upper Immigration Tribunal. But here again he was unsuccessful: the Upper Tribunal thought that the Home Office’s decision and decision-making processes had been fair.

Still not to be deterred he then renewed his Judicial Review application with the Court of Appeal and, remarkably, they granted permission for the case to be heard. However, whereas he had applied on no less than eight separate grounds the Court only accepted one of them, which was a quite narrow ground about interpretation of caselaw.

And here we encounter a bit of amusing court life. The Court tried to limit Mr Ullah’s barrister (Ms Naik) to dealing with the one accepted ground but it seems that they did not fully achieve this: “… [the grounds] strayed well beyond the very limited bounds of the permission order…”. “We were not entirely successful in confining Ms Naik’s oral argument in that way”.

But, in any event, the case evidently ultimately proceeded efficiently, and the Court of Appeal provided us with some useful learning.

The court held that finality in litigation was in some contexts an important right and important concept. The Home Office cannot undermine or ignore decisions of the Immigration Tribunals as they please. But, on the other hand, in a case such as this where compelling new facts and new evidence emerge, the Home Office may be entitled to re-visit a decision made by the Tribunals.

So if you find yourself embroiled in this kind of area of immigration law you are well advised to instruct a good lawyer.