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High Court declares that Home Secretary had no power to cancel indefinite leave to remain while holder outside the UK

Wednesday 17 March 2021

Amanda Weston QC of the Garden Court Chambers Public Law Team represented C1. 

Amanda Weston QC led Anthony Vaughan of Doughty Street Chambers. They were instructed by Waleed Sheikh of Leigh Day Solicitors.

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In a robust judgment, the High Court has held that the Home Secretary acted outside her powers when she purported to cancel the residence rights of C1, a foreign national resident in the UK for many years, while he was temporarily outside the country.

The Home Secretary sought to rely on the Immigration Leave to Enter and Remain Order 2000 which provides for a power to cancel leave when the holder is outside the UK with the immediate effect that the individual is prevented from returning to the UK. However, as C1’s representatives pointed out, the power to make that Order is provided by the Immigration Act 1971 which does not give any express power to cancel indefinite leave to remain and restricts the power to vary leave to remain to limited leave only. This highly significant ruling, which rests on a ‘black letter’ interpretation of what the governing statute permits and does not permit, will be further considered by the Court of Appeal on appeal by the Home Secretary.

The High Court’s judgment can be read here.

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