Revocation of ILR which has been obtained by deception

Section 76 of the Nationality, Immigration and Asylum Act 2002 gives the Secretary of State the power to revoke indefinite leave to enter or remain (ILE or ILR) in the United Kingdom in various circumstances including where:

… 2) leave was obtained by deception;

This provision applies to anyone who has indefinite leave to remain, whatever the reasons for granting ILR. It can therefore apply to those who were granted ILR on the basis of long residence, or under any route to settlement under the Rules, or on the basis of discretion (such as under the Legacy Programme).

“Deception” means making false representations or submitting false documents or failing to disclose material facts.

How should the power to revoke be exercised?

It is well established that when the Secretary of State has an administrative power, such as the power to revoke ILR, he will do so in a way that is fair in all the circumstances.  Fairness will very often require that a person affected by the decision will have an opportunity to make representations on his own behalf either before or after the decision is made. Notwithstanding, the Secretary of State frequently makes decisions to revoke ILR without providing an opportunity for the person affected to make representations.  

In all his functions, the Secretary of State is required to make the best interests of any child affected a primary consideration.  However, if a decision is made to revoke ILR without notifying the person affected first, the Secretary of State may have no way of knowing whether children are affected by the decision.

The Secretary of State is also required to follow his own Guidance when making a decision as to whether to revoke ILR.  His current guidance lists 4 reasons not to revoke ILR. These are:

1. The passage of time. The Guidance indicates that the length of time spent in the UK may be a good reason not to revoke ILR but, what is more important is the time since the deception occurred.  The Guidance makes clear that each case must be considered on its own merits but says that it would not normally be appropriate to revoke ILR when the deception took place more than five years ago.  However, it seems that decisions are being made to revoke ILR even when the deception took place more than five years ago.
2. Genuine mistakes.  The Guidance states that ILR should not normally be refused just because of minor errors in an application (such as a misspelled name). The Guidance gives several examples of when ILR would and would not normally be revoked but concludes that, “There should be clear and justifiable evidence of deception and the deception was material to the grant of leave.” This element of the Guidance seems to simply be explaining that, if there is not deception, there is no power to revoke ILR.  Making a mistake, is not the same as using deception.
3. Information was previously overlooked or considered. This element of the Guidance appears to say that ILR should not normally be revoked when the Secretary of State was aware of the deception or had the necessary information available and should have been aware of the deception, but granted ILR anyway.  This reason not to revoke ILR may be applicable if, for example, there is evidence in the Home Office caseworking notes that the decision maker who granted ILR was aware of the use of deception. This element of the Guidance goes on to say that where the decision maker granted ILR in error and the applicant did not use deception, revocation would not normally be appropriate.  
4. Compelling and compassionate circumstances. The Guidance says that there my be exceptional circumstances where it would not be appropriate to revoke ILR even when a person appears to fall within the remit of the revocation policy.  The Guidance makes clear that each case should be considered on its own merits but gives the following examples: “persons with serious mental health issues, victims of human trafficking or victims of domestic violence”.

Consequences of revocation of ILR

If a person’s ILR is revoked, they will be left with no leave at all (they do not revert to any previous status) and they are therefore liable to removal and detention.

As seeking or obtaining leave to remain by using decision is a criminal offence, those who are at risk of revocation may also be at risk of criminal prosecution. A conviction may lead to deportation. In circumstances where a person has a conviction for using deception in an application for leave to remain, the conviction will be sufficient proof for the Home Office to find that deception was used when considering revocation (as the criminal standard of proof is higher).  However, it is also often the case that a decision to revoke ILR is made before any criminal proceedings are brought.

How to challenge revocation of ILR

There is no longer any right to appeal a decision to revoke ILR so the only way to challenge revocation is by judicial review. There may be a basis on which to challenge revocation under Section 76(2) by way of judicial review if the Secretary of State has made an irrational decision to revoke or has otherwise made an unlawful decision to revoke.

A decision to revoke may be unlawful if the Secretary of State did not follow his own guidance when reaching a decision, for example, if one of the “reasons for not revoking ILR” set out it the Guidance seems to apply and no explanation is given as to why it was not applied.  

If the best interests of a relevant child are not considered when reaching a decision to revoke, this may be a basis for challenge.  

If deception was not in fact used, or if any deception was later corrected, before the decision to grant ILR was made, this may be a further basis to challenge a revocation decision.

Contact our Immigration Barristers

For expert advice and assistance regarding a revocation of ILR on grounds of deception, contact our immigration barristers on 0203 617 9173 or via our enquiry form below.