YC, R (on the application of) v Secretary of State for The Home Department [2026] EWCA Civ 285

[2026] EWCA Civ 285Case No CA-2025-000843
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr Justice Bourne and UT Judge Loughran
JR-2024-LON-000850
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/03/2026
Before
LORD JUSTICE DINGEMANSSenior President Of TribunalsLADY JUSTICE ELISABETH LAINGLORD JUSTICE COBB
Between
The KingAppellantSecretary of State for the Home DepartmentRespondent
Alasdair Mackenzie and Hannah Smith (neither of whom appeared below) (instructed by Southwark Law Centre) for AppellantDavid Blundell KC (who did not appear below) and Hafsah Masood (instructed by Government Legal Department) for RespondentHearing Hearing date : 12 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 16 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Lord Justice Cobb :Introduction
[1]Does the Secretary of State for the Home Department (‘SSHD’) have an implied power, incidental to her statutory powers, to withdraw, cancel, vary and/or correct a grant of indefinite leave to remain (“ILR”), in circumstances where a letter granting ILR has been sent to a claimant for asylum by her officials in error, in place of a letter granting that person limited leave to remain (“LLR”), as she intended?[2]This issue is at the centre of an appeal against an order made on 12 March 2025 by the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) (Bourne J and Upper Tribunal Judge Loughran) dismissing a claim for judicial review issued by YC, who had contended that the SSHD has no such implied power. YC now appeals that decision to this court. Permission to appeal was given by Andrews LJ on 5 August 2025. YC has been granted anonymity in this appeal because he has been found to be a victim of trafficking, and is suffering from grave ill-health.[3]For the purposes of this appeal, we have seen a selection of the relevant correspondence between the parties. We have been greatly assisted by the arguments from counsel, Alasdair Mackenzie and Hannah Smith (for YC) and David Blundell KC and Hafsah Masood (for the SSHD).[4]For the reasons set out herein, I would dismiss this appeal.

Outline facts

[5]YC is a Chinese citizen and was born in 1971; he is married with children. YC ran a frozen food business in China. He got into debt; he borrowed from loan sharks, and his indebtedness grew. He claims that the loan sharks attacked him in 1999, and he maintains that he received no protection from the police to whom he had reported the assault. He left China in 2000, and was assisted by traffickers to travel to this country using a Korean passport. He has completely lost contact with his family. On arrival in the UK, he made no effort to regularise his status.[6]On or about 26 March 2019, following his apprehension by Border Force as an illegal entrant, YC applied for asylum; he claimed to be a refugee (within the meaning of article 1A of the United Nations’ Convention Relating to the Status of Refugees 1951) and that he had established a well founded fear of persecution for a refugee convention reason. Alternatively, he sought a grant of Humanitarian Protection (under paragraph 339C and 339CA of the Immigration Rules) or leave to remain based on medical grounds and/or inhuman or degrading treatment and/or private life (Articles 3 and 8, European Convention on Human Rights).[7]Before his application was determined, YC was diagnosed with an incurable form of cancer; he is currently in receipt of palliative treatment. He has also been diagnosed with tuberculosis and hepatitis B.[8]On 13 November 2023, the Home Office (Durham Asylum Team) issued a decision letter (‘the First Letter’) to YC on behalf of the SSHD in these terms:
“Your protection claim (asylum application) made on 28/03/2019 has been refused but you have been granted permission to stay in the United Kingdom (UK) based on your your [sic] private life in the UK as an adult.”
[9]The decision letter further stated:
“What this means for you You have been granted settlement (also known as indefinite permission to stay) in the UK. Settlement in the UK: what you need to know You can find information on what it means to be settled in the UK at: www.gov.uk/guidance/indefinite-leave-to-remain-in-the-uk Working in the UK There is no immigration restriction on your ability to work in the UK. This means you may work in any business or profession, as an employee or self-employed. You must comply with the law and any statutory regulations for that business, profession or employment.” (Emphasis above by underlining added).
Settlement in the UK: what you need to know You can find information on what it means to be settled in the UK at: www.gov.uk/guidance/indefinite-leave-to-remain-in-the-uk

Working in the UK

[10]The First Letter set out a summary of the evidence which had been considered in deciding YC’s claim referring to his screening interview, asylum interview record, witness statements and medical reports. It was said that the SSHD expressly accepted that YC was “of adverse interest to a loan shark” and “a victim of trafficking”, though she did not accept that YC was at real risk on return because there would be “sufficient protection from persecution in your country of origin”, and that “the police in China are generally willing and able to provide protection in similar circumstances to your own...”. The letter continues: “Family and Private Life I have decided to grant you permission to stay in the UK based on your right to respect for private and family life under Article 8 of the ECHR. This grant is based on your private life in the UK as an adult because it is considered that there would be significant obstacles to you reintegrating in China”.[11]YC was advised that he would receive a Biometric Residence Permit (‘BRP’) as evidence of his status within 7 to 10 days of the decision and that the BRP would enable YC “to prove [his] right to stay, work or study in the UK”. The letter invited YC to contact the Home Office if he considered that there was “something … wrong on your BRP … You only have 14 days from the date of receiving your BRP to let us know about an error”.[12]On the basis of this letter YC believed that he had been granted ILR.[13]YC’s BRP was received by his legal representatives on 5 December 2023 with an expiry date of 31 December 2024, reflecting the SSHD’s then prospective intention to replace biometric permits with eVisas. This referred to YC having been granted ‘leave to remain’. The SSHD later advised that the expiry of his LLR would be 12 May 2026 (i.e., 30 months after the grant on 13 November 2023). Therefore, YC’s representatives wrote to the Home Office on 11 December 2023 asking for clarification of his status.[14]The Home Office replied to YC by email on 22 December 2023, thanking YC’s representatives for “alerting us to this error”. Attached to the email was “the correct decision letter” which was a backdated revised decision letter, purportedly dated 8 November 2023; we were told at the appeal hearing that this date had been recorded on the face of the letter in error, and that the backdated letter should have been dated 13 November (‘the Second Letter’). It contained the following key passage:
“Your protection claim (asylum application) made on 28/03/2019 has been refused but you have been granted permission to stay in the United Kingdom (UK) based on your your [sic] private life in the UK as an adult. … … What this means for you You have been granted permission to stay in the UK until 12/05/2026. You can apply to extend your stay in the UK before your current permission ends. You have this permission whether or not you appeal the decision to refuse your protection claim. You may be eligible to apply for settlement in the future. You can find out about settlement at https://www.gov.uk/settle-in-the-uk.”

What this means for you

[15]The Second Letter set out the conditions of YC’s permission to stay in the United Kingdom (including work condition, study condition, public funds condition etc.). However, the ‘Reasons for Decision’ section appended to the second letter was identical to the first; notably, it repeated the same ‘Family and Private Life’ paragraph which I have reproduced from the First Letter at §10 above.[16]On 24 January 2024, YC’s representatives wrote to the Home Office protesting at the withdrawal of the grant of ILR. It was argued that once ILR had been granted and the decision served, it could not be revoked unless the limited circumstances provided for in section 76(1) or 76(2) of the Nationality Immigration and Asylum Act 2002 (‘NIAA 2002’) applied. On 2 February 2024, the Home Office replied by email acknowledging that YC had received “conflicting assurances of his immigration status as part of his asylum claim”; the email further acknowledged that YC had been informed that he had been granted settlement (ILR), but stated that he had in fact not been granted this:
“this is a clear error within the letter”
. It was said that once the error had been realised, “an updated decision was issued …. [which] … confirmed the correct period of leave your client had been granted”.[17]YC sought judicial review of the SSHD’s decision to substitute the First Letter granting ILR with the Second Letter granting him LLR. It was argued in summary that, whether or not the initial grant of ILR was mistaken, it nonetheless “was a lawful and effective grant of settlement”, and that the SSHD had no power simply to replace that grant with the grant of limited leave. In her summary grounds of defence, the SSHD (in a variation to the position originally articulated) argued that she had the legal power to ‘withdraw’ and ‘replace’ the decision by way of an “incidental power under the Immigration Act 1971 (‘IA 1971’)”, given that the wrong wording template had inadvertently been selected when writing initially to YC. On 28 August 2024, YC was granted permission for judicial review of the decision which had been communicated to him in the Second Letter.[18]The UT considered YC’s judicial review application on 11 February 2025, and by judgment delivered on 12 March 2025, the UT dismissed YC’s claim for judicial review.

What is not in issue

[19]I have identified the central issue in this appeal at §1 above. It is also useful to have in mind what is not in issue.[20]It is not, for example, in issue that ILR confers considerable benefits and privileges; these include the right to live in the UK permanently, to work and study in the UK, and to access public funds. This also provides a pathway to citizenship. There are correspondingly stringent requirements for a grant of indefinite leave under the Immigration Rules, which must be made by application, and usually (i.e., unless a fee waiver applies) supported by the payment of a fee (currently in excess of £3,000).[21]It is accepted that there is no express provision in statute which gives the SSHD the power to withdraw a grant of ILR either at all, or in any event, retroactively. Section 76 of the NIAA 2002 contains a power to revoke ILR (prospectively) in specific circumstances, but no one asserts that section 76 applies on the facts of this case.[22]The parties accept that YC never applied for ILR and he did not in fact qualify for ILR under the Immigration Rules (albeit that there is available discretionary leave outside of the rules: see §63 below); if an applicant enters the UK illegally (as YC did), ILR (or ‘settlement’) must be refused unless the applicant has completed a qualifying period of 10 years with permission (Appendix: Private Life: PL12.5). YC could not demonstrate satisfaction of that qualifying period.[23]It is further accepted that the First Letter, properly construed, represented a valid grant of ILR to YC; this is indeed recorded in the UT judgment at [27]. It was not argued before the UT or us that the grant of ILR was unlawful.[24]The grant of ILR to YC on 13 November 2023 was, it is agreed, the result of a clerical error within the Home Office (Durham Asylum Team); it is not disputed that the Home Office staff had used the wrong letter template to communicate the decision to YC.[25]It is agreed that under the First Letter YC received a ‘windfall’. He has never suggested that he acted in any way in reliance on the first, mistaken notification.

The statutory framework, the rules and the guidance

[26]Section 1 of the IA 1971 requires those who are not British citizens to have permission to enter or remain in the UK, generally referred to as “leave to remain” (or “leave to enter”), or sometimes “permission to stay”.[27]Section 3(1) of the IA 1971 reads as follows:
“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen - (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions…” (Emphasis by underlining added).
The IA 1971 then sets out a number of potential conditions which may be attached to the grant of LLR, ending with a catch-all “such other conditions as the Secretary of State thinks fit”. There is no power to attach conditions to the grant of ILR.[28]Section 3(2) of the IA 1971 requires the SSHD to lay rules as to the practice to be followed in relation to the administration of the IA 1971; in the instant case, these were the Immigration Rules which had recently been amended (5 October 2023) and were then in force (‘the Rules’). Section 3(2), 3(3) and 3(5) of the IA 1971 read as follows: “(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;..”. “(3) In the case of a limited leave to enter or remain in the United Kingdom, - (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; …”. “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if - (a) the Secretary of State deems his deportation to be conducive to the public good;…”. (Emphasis by underlining added). (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; …”. (a) the Secretary of State deems his deportation to be conducive to the public good;…”. (Emphasis by underlining added).[29]Section 3B(1) and 3B(3) of the IA 1971 read as follows:
“(1) The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to remain in the United Kingdom. … (3) An order under this section may— (a) contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and (b) make different provision for different cases.” (a) contain such incidental, supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and (b) make different provision for different cases.”
[30]Section 4 of the IA 1971 provides: “(1) The power … to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) [… ], shall be exercised by the Secretary of State; and, unless otherwise [allowed by or under] this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument”. (Emphasis by underlining added).[31]Section 5 of the IA 1971 provides: “(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force”.[32]Section 76 NIAA 2002 provides: “(1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person –(a) is liable to deportation, but(b) cannot be deported for legal reasons. (2) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if – (a) the leave was obtained by deception … (3) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person, or someone of whom he is a dependant, ceases to be a refugee as a result of— (a) voluntarily availing himself of the protection of his country of nationality…”. (Emphasis by underlining added).[33]A notice in writing giving leave to enter or remain in the United Kingdom, or refusing such leave, or varying such leave may be “sent electronically to an e-mail address provided for correspondence by the person or the person's representative” (Article 8ZA(2)(d) of the Immigration (Leave to Enter and Remain) Order 2000) (‘the Immigration Order 2000’). Article 13(6)/(7) of the same order provides for the variation or cancellation of leave to remain by the SSHD, where the holder of leave is outside the UK.[34]Part 9 of the Rules sets out the ‘Grounds for Refusal’. In the Rules, it is said: “The Immigration Act 1971, section 76 of the Nationality, Immigration and Asylum Act 2002 (revocation of indefinite leave), the Immigration (Leave to Enter and Remain) Order 2000 and Schedule 2 of the Immigration Act 1971 set out the powers to cancel entry clearance or permission. These rules set out how those powers are to be exercised”.[35]There is an Appendix to the Rules dealing with Private Life as “a route to settlement”. The Appendix sets out the qualifying criteria for the Private Life route, and the suitability requirements. The Rules then provide that if settlement is not to be granted and “there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK”, the SSHD may give limited leave; “in all other cases, the applicant will be granted 30 months permission to stay” (PL10.3). This was of course the period purportedly granted to YC.[36]At the hearing of the appeal, we considered briefly the up-to-date Immigration Rules dealing with ‘Part Suitability’ (issued and updated on 1 February 2026); these provide:
“Where a person has settlement and is in-country (not including at the UK border) their permission can only be cancelled on the grounds contained in section 76 of the Nationality, Immigration and Asylum Act 2002” (Emphasis by underlining added).
[37]Finally, we were taken to the Home Office Guidance for its staff on ‘Revocation of indefinite leave’ (version 6.0) applicable at the relevant time. In this document it is to be noted that there is nothing in the ‘Policy Rationale’ which suggests that the underlying policy may include the correction of erroneous grants (page 9) or that there is any implied power to cancel, revoke or withdraw leave. The following passage appears at page 21:
“In cases where a person honestly provided information in support of their application and the decision maker had the authority to grant leave but for example overlooked that the applicant did not entirely meet the requirements of the Immigration Rules, the applicant cannot be said to have used deception and therefore the power to revoke indefinite leave under section 76(2) cannot be used”
(emphasis by underlining added).

The judgment of the UT

[38]After a brief introductory section setting out the factual background, the Judges addressed the relevant statutory framework, citing in full section 4 of the IA 1971 and section 76 of the NIAA 2002. They then turned to the authorities, considering first the line of immigration cases relied on by YC, before examining the public law authorities on which the SSHD placed reliance.[39]In the former category, it is sufficient for present purposes to note that the UT referenced R v SSHD ex p Ram [1979] 1 WLR 148 (‘Ram’), a case in which the applicant had been granted indefinite leave as a result of a “genuine and honest mistake on the part of the relevant immigration officer”. In that case, it was held that there had been “a legally effective grant of ILR despite it being the result of a mistake”. The UT considered R (Hashmi) v SSHD [2002] EWCA Civ 728 (‘Hashmi’) in which Swinton Thomas LJ had said that “leave, if properly granted, cannot subsequently be withdrawn merely on the basis that there has been a change of circumstances”. The UT then turned to R (Yusuf, Rechachi and others) v SSHD [2006] EWHC 3513 (Admin) (‘Rechachi’) before turning to SSHD v Allaraj [2023] UKUT 00277 (IAT); in that latter case, the grant of entry to the UK had been given without authority by an Immigration Officer, and was set aside as having been made ultra vires. This case had some similar features with Vasa v SSHD [2025] 1 WLR 39, where Lewis LJ suggested (at [59]) by contrast that a want of power would be relevant only if a decision were revoked or declared unlawful, as the decision would otherwise continue to have legal effect. It is agreed, as it was in the UT (see judgment [47]) that it is not necessary in this case to decide that point.[40]The UT then referred to the suite of public law cases which included R (New London College Ltd) v SSHD [2013] UKSC 51, [2013] 1 WLR 2358 (‘New London College’), drawing particular attention to the final words of [28] (Lord Sumption, with whom Lord Hope, Lord Clarke and Lord Reed agreed):
“the statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act”
. They referenced Lord Carnwath at [33] to similar effect (i.e., “the Secretary of State’s powers of immigration control are confined to those conferred expressly or impliedly by the 1971 Act. They may include both powers expressly conferred and powers reasonably incidental to them”). Reference was then made to Porteous v West Dorset DC [2004] EWCA Civ 244, [2004] HLR 30 (‘Porteous’), on which it was said that an authority was entitled to revisit and change a decision which had resulted from a fundamental mistake of fact. In Porteous this Court had relied on the fact that the harm to the person affected by the decision may be no greater if resulting from a mistake of fact, than if it was the result of fraud, or indeed where there is no “suggestion of bad faith on either side” ([9]). As the UT observed, Porteous was followed in Fajemisin v General Dental Council [2013] EWHC 3501, [2014] 1 WLR 1169 (‘Fajemisin’), and in R (Chaudhuri) v General Medical Council [2015] EWHC 6621 (Admin) (‘Chaudhuri’). In Chaudhuri, Haddon-Cave J spoke of the “broad corrective principle” available in administrative law.[41]The judges of the UT expressed the view (judgment [46]) that “none of the previous cases is precisely on point”, adding “… in our judgment the question of whether a specific decision can be re-opened and corrected will always depend on the factual and legal context” (judgment [48]). There then follows their essential reasoning which it is helpful to reproduce in full: “[49]… we are not convinced that the present case is properly described as one of fundamental mistake of fact. An immigration decision could be based on a fundamental mistake of fact, e.g. as to a person’s length of residence in the UK or marital status or any other decisive characteristic. The question of what powers the Respondent has upon discovering such a mistake may well vary according to the type of decision that is in issue. But in the present case, it cannot be said that the decision-maker mistakenly believed that the Applicant was entitled to ILR and then discovered that he was not. Instead, the decision-maker decided to grant limited leave but, through a clerical error, used a letter template which communicated an unintended grant of ILR. [50] That view of the facts is contained in the Respondent’s pleaded case and has not been contested. [51] In the circumstances we are not deciding the question of what are the Respondent’s powers in a case of fundamental mistake, let alone a case of change of circumstances. [52] Instead, the question is whether the Respondent can correct an error of the kind described where by pure inadvertence the wrong decision is communicated. [53] The answer cannot lie in a mere “slip rule” whereby an authority can correct trivial clerical errors such as the spelling of a name. In the present case, as [counsel for YC] said, there was a considerable and important difference between the “right” grant, of limited leave, and the “wrong” grant, of ILR. [54] Nevertheless, we have come to the conclusion that on the facts of this case, the Respondent did have a power to make the correction, and that such a power is reasonably incidental to the statutory powers to grant or refuse ILR. [55] In reaching that conclusion, we consider that the correction was not a revocation. Revocation may occur, for example where a fraud is discovered or in some cases where circumstances have changed, and is governed by section 76. The tight limits of section 76 reflect the fact that revocation will always involve the reconsideration of a decision that was made intentionally, even if it was made on a false premise. That is not what happened here. [56] What happened in this case was the correction of something in the nature of a slip, but a slip which was liable to have serious consequences. On the facts of this case it could be described as inadvertence or carelessness. In another case such an error might arise by an IT malfunction. The essence of it is that the decision communicated was not the decision which the decision-maker intended to make. [57] Although the public law cases are not on all fours with this one, we agree with the comments of Haddon-Cave J in Chaudhari at [46]-[51] (whether or not they were part of the ratio of his decision). Where a corrective power exists, it can extend to correcting a decision which affects the rights of the parties, even in the important ways emphasized by [counsel for YC]. That is because, if the power did not exist, there could be serious consequences for the public interest, for example in a case where ILR had been inadvertently granted to a person who was disqualified for such a grant by having serious criminal convictions. Another important negative consequence would be a failure to treat like cases alike. And, on the facts of this case, as in Chaudhari, to deny the power would be “to allow process to triumph over common sense”. [58] Although we have decided that there is an implied power, incidental to the statutory powers under the 1971 Act, to correct an inadvertent error, the situations in which it can be exercised may be rare. It is subject to the caveat expressed by Haddon-Cave J in Chaudhari at [51] (quoted above). In the present case we note in particular that the error was discovered quickly and there was no evidence that anything had been done in reliance on the erroneous decision”. (Emphasis by underlining added).

Grounds of Appeal

[42]The Grounds of Appeal are as follows: i) The UT erred in finding that the SSHD, having granted indefinite leave to remain to YC, had any power to take it away ab initio or replace it retroactively with limited leave, on the basis that it was granted by mistake (or at all). ii) The correct position as a matter of law was therefore that YC had, and retained, ILR on the basis of the SSHD’s decision of 13 November 2023. The Tribunal should have granted a declaration to that effect and/or should have quashed the SSHD’s purported further decision served on 22 December 2023. iii) There are essentially four reasons why the Tribunal was wrong to find as it did: a) The power purportedly exercised by the SSHD amounts in substance to a revocation of ILR by another name, in circumstances where the SSHD has no power to revoke ILR. b) Parliament has never legislated to create a power to take away ILR on the basis of the SSHD’s own unilateral mistake, despite frequently intervening to amend the law in this jurisdiction; in particular, despite being assumed to be aware of existing case law, it has never sought to legislate so as to override that case law. It must be concluded from that that Parliament did not intend such a power to exist. c) Relatedly, Parliament has never legislated to create a power to take away leave to remain retroactively – i.e. with the effect that it is deemed never to have been granted – in any circumstances; the implications of such a power would be very serious and would cause uncertainty and injustice. d) The power identified by the Tribunal is not on analysis an incidental power, but a substantive power. Such a power could only be created by Parliament.

The arguments on appeal

[43]Mr Mackenzie and Ms Smith, for the Appellant, focused their arguments under the four headings identified in the third Ground of Appeal (above). Their starting point was that the making of the decision to grant leave is achieved by the giving of notification of that decision under section 4 IA of the 1971 to the person concerned. In this regard they rely on R (ex p Minton) v SSHD [1990] Imm AR 199 to support their argument that the First Letter was the means itself by which the SSHD exercised her duty in relation to the consideration (in this case the grant) of leave.[44]They submitted that if the SSHD possessed the implied power to withdraw the grant contended for (on her behalf) in this appeal, that contention would have been advanced repeatedly in the substantial body of cases over several decades in which the courts have held that no such power exists to correct an error. They say that it is not insignificant that the argument has never previously been advanced; the explanation for that omission, they argued, is plain: the argument is devoid of merit. They pointed to the limited statutory routes available to achieve revocation or withdrawal, relying on R (George) v SSHD [2014] UKSC 28; [2014] 1 WLR 1831 (per Lord Hughes’ judgment, on behalf of the court, at [13]). We were further taken to Article 13(6)/(7) of the Immigration Order 2000 which had added an additional class of case where leave to remain (including ILR: see R(C1) v Secretary of State for the Home Department [2022] EWCA Civ 30, [2022] QB 371) (‘R(C1)’) can be “cancelled” by the SSHD, but only where the holder of the leave is outside of the UK (plainly not relevant here).[45]Mr Mackenzie cited the immigration authorities to which the UT had been referred, starting (again) with Ram where the claimant’s passport was – in error – stamped by the immigration officer with leave to remain for an indefinite period. The SSHD sought to remove the claimant. May J concluded that the SSHD had no reasonable grounds for concluding that the claimant was in this country illegally; at page 155 he continued: “He is here pursuant to a leave stamped in his passport, to the grant of which he contributed in no way by any fraud or dishonesty on his part. I do not think that it can be said that in the circumstances of the present case the immigration officer had no authority to put that stamp in the passport, nor that in consequence the Secretary of State had any power … to detain or … to give directions for the removal of this particular applicant”.[46]Mr Mackenzie argued that a number of the immigration cases followed the approach of Ram. He drew our attention to Rechachi and to Davis J’s comments at [92] about the wording of a status document:
“If its wording has a particular meaning and effect, then that, absent deception, is the meaning and effect which must be given to it, even though some mistake may have occurred”
. Davis J had observed (at [97.3] ibid.) that:
“My attention was not drawn to any statutory power entitling the Secretary of State to revoke or alter a status document on the ground of unilateral mistake”
. That said (as Mr Blundell later pointed out), there is no indication from the judgment that this issue was in fact argued extensively, or indeed at all, in the Rechachi case.[47]Mr Mackenzie observed that Parliament has legislated at least thirteen times in the last thirty years in the area of immigration, with no attempt to legislate for the situation which has arisen here. Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions – including, for instance, Ram and the line of cases which followed it (see Lord Lloyd-Jones in R (Robinson) v SSHD [2019] UKSC 11 [2020] AC 942, [62]: “the principle of informed interpretation”). Moreover, the novelty of the SSHD’s argument, argued Mr Mackenzie, is illustrated by the fact that neither the Rules nor the SSHD’s own policy guidance contain any reference to any power to withdraw leave of any duration on the basis of a clerical error. And yet, Mr Mackenzie submitted with no small understatement, it would not be unprecedented for a Secretary of State for the Home Department to err in the exercise of their immigration-related powers.[48]Section 76 of the NIAA 2002, it was said, provides a complete code governing the revocation of ILR; this is recognised in the SSHD’s published guidance documents. Mr Mackenzie argued that a power to withdraw, cancel or revoke a grant of ILR must be tightly circumscribed, given the transformative impact on a person’s status, rights and their relationship with the state and with third parties. To allow the SSHD the incidental power to withdraw or revoke leave would cause great uncertainty and potentially expose many people who believe that they have a right to remain to the “hostile environment” referred to in Balajigari [2019] EWCA Civ 673.[49]He argued that the power contended for is a ‘substantive’ power, not one of the “general administrative powers” referred to by Lord Sumption in New London College at [28]. In this regard, he drew our attention to three cases: i) The Privy Council’s judgment in Commissioner of the Independent Commission of Investigations (Appellant) v Police Federation and others (Respondents) (Jamaica) [2020] UKPC 11 (‘CICI v PF (Jamaica)’) in which it was said at [40]: “… whether such implication is possible will depend on the particular circumstances of each statutory scheme, in particular the express functions conferred on the statutory body. It is not possible simply to transfer the reasoning from one statute to another”. ii) R v Customs and Excise Commissioners, ex parte Hedges & Butler Ltd [1986] 2 All ER 164 in which Mustill LJ had (at page171) cited Daymond v South West Water Authority [1976] 1 All ER 39, [1976] AC 609 (Viscount Dilhorne at p.53, and p.644 respectively) in which it was said (about ‘supplementary’ powers) that: “ ... "supplementary" means, in my opinion, something added to what is in the Act to fill in details or machinery for which the Act itself does not provide – supplementary in the sense that it is required to implement what was in the Act.” iii) Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 where it was emphasised at page 31 that each case turned on its own facts, and that p.31D: “… the general proposition that when a power is claimed to be incidental, the provisions of the statute which confer and limit functions must be considered and construed. … The authorities also show that a power is not incidental merely because it is convenient or desirable or profitable”.[50]While Mr Mackenzie accepted that YC would benefit from an unexpected ‘windfall’ if this appeal were to be allowed, he invited us to consider with care the converse position, and its impact on third parties – families, employers, landlords, for example – if the arguments of the SSHD (which had succeeded in the UT and repeated on this appeal) held sway.[51]In reply, Mr Blundell and Ms Masood invited this Court to accept that the UT was correct in concluding that an implied power exists to correct clerical errors so that recipients of leave are granted only that to which they are entitled. The implied power exercised in the instant case is, it was argued, reasonably incidental to the SSHD’s powers to grant ILR contained in sections 3 and 4 of the 1971 Act, as recognised by the Supreme Court in New London College (see above).[52]As before the UT, the SSHD relied on Porteous and the passage from the judgment of Mantell LJ at [9]:
“If an exception may be made for fraud why not for fundamental mistake? After all the resulting harm may be no greater in the one case than the other. Here, without there being any suggestion of bad faith on either side, unknown to either party there was accommodation available at the date of the original decision. Once the true position became known why in commonsense and justice should the local authority be held to a duty to provide accommodation which the applicant does not need and which could be made available in another more deserving case?”
Mr Blundell submitted that no principled distinction can be drawn – in relation to its impact upon the recipient of the decision – between an erroneous decision induced by fraud or deception (as addressed in section 76 of the NIAA Act 2002), an error arising from a mistake of fact (as in Porteous), or, such as in the present case, a clerical error. As Keith J observed in Fajemisin at [37]:
“If ‘fraud unravels all’, why should fundamental mistake not do so as well? The resulting harm would be no greater in one case than the other.”
Keith J had added (also at [37]): “Porteous’s case is authority for the proposition that, in addition to cases in which a public body can revisit a previous decision under the equivalent of the slip rule, a public body can revisit a decision which was made in ignorance of the true facts when the factual basis on which it had proceeded amounted to a fundamental mistake of fact”.[53]As earlier mentioned, Porteous was further considered by Haddon-Cave J in Chaudhuri. In that judgment, it was said: “[46] … the inherent jurisdiction of public bodies to revisit previous decisions is not limited simply to correcting slips or minor errors which do not substantially affect the rights of the parties or the decision taken; on the contrary, public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated. [47] I have no doubt that such a broad corrective principle exists in administrative law. Public bodies must have the power themselves to correct their own decisions based on a fundamental mistake of fact. To suggest otherwise would be to allow process to triumph over common sense. There is no sense in requiring wasteful resort to the courts to correct such obvious mistakes. Administrative law should be based on common sense”.[54]Mr Blundell further submitted that, in the line of authorities relied upon by the Appellant, including Ram, the sole issue under consideration was the status or validity of the mistaken grant. At their highest, those cases establish only that a grant of leave arising from an error not induced by fraud, and not made by an official who was plainly without legal authority to make such a decision, is effective and not void ab initio. It follows, for example, that a migrant who entered the United Kingdom in possession of indefinite leave to remain granted as a result of such an error was not an “illegal entrant” and therefore was not liable to detention (as in Ram). However, Mr Blundell argued that the Ram line of authorities is entirely silent as to whether, and in what circumstances, the decision-maker may subsequently withdraw or revisit a decision made in error. We were taken to Craies on Legislation (13th edition: 2025):
“12-020 Where a statutory function is conferred on a Minister or any other person, it is implicit that they may do anything necessary for the performance of that function…. The more detailed the statutory provisions are as to how the function conferred is to be exercised, the slower the courts will be to grant the implication of powers to supplement the details of the statute… the imposition of a duty necessarily implies a power to do whatever is required in order to comply with the duty” (Emphasis by underlining added).
Mr Blundell relied additionally on Wade & Forsyth’s Administrative Law (12th ed’n, 2022, chapter 10, p.243):
“A statutory power will be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself; And this doctrine is not applied narrowly. … It must be remembered that the courts intervene only where the thing done goes beyond what can fairly be treated as incidental or consequential” (Emphasis by underlining added).
[55]A footnote in Wade & Forsyth takes the reader to the decision in Ward v Metropolitan Police Commissioner (MPC) [2005] UKHL 32; [2005] 2 WLR 1114, in which Baroness Hale ([24]) had observed that: “It is not sufficient that such a power be sensible or desirable. The implication has to be necessary in order to make the statutory power effective to achieve its purpose” (this has an echo from Hazell see §49(iii) above). Mr Blundell argued that whether the test was the wider test of New London College, or the narrower test of Ward v MPC, the test was satisfied in the instant case. We were further referred to R v Bassetlaw District Council, ex parte Oxby [1998] PLCR 283 as an example of this Court recognising the propriety of a planning authority invoking an alternative route to revoke planning permission, notwithstanding the existence of a statutory mechanism with different consequences for compensation. By analogy, Mr Blundell submitted that it is likewise legitimate for the SSHD to rely on an implied power to correct an erroneous grant of ILR, notwithstanding that section 76 of the NIAA 2002 provides a statutory route to revocation in other circumstances.[56]Mr Blundell accepted that he was inviting this Court to recognise an extension to the scope of application of the principle recognised in the Porteous line of cases, but nonetheless urged us to uphold the UT’s conclusion on the basis that:(a) there is a coherent rationale for such an implied power,(b) its recognition serves the public interest, and(c) no countervailing detriment to the public interest arises from implying it. He emphasised that the legal consequences are identical whether the correction of an erroneous grant is prompted by fraud, a fundamental mistake of fact, or a clerical error.[57]Following the hearing, and at the Court’s invitation, both parties provided supplementary submissions on the SSHD’s established power to withdraw a refusal decision under challenge in order to reconsider it, as discussed in R (Chichvarkin) v SSHD [2010] EWHC 1858 (Admin) (‘Chichvarkin’), particularly at [46]. Mr Mackenzie submitted that this withdrawal power is ancillary to the courts’ power to quash an adverse decision on appeal and is reflected in rule 17 of the 2014 First-tier Tribunal (IAC) Rules and the 2008 Upper Tribunal Rules. He contended that the existence of a power to withdraw an adverse decision does not imply a corresponding power to withdraw a favourable, unchallenged decision; the scope for reconsideration is informed by the courts’ general reluctance to entertain academic issues.[58]Mr Blundell submitted that Chichvarkin supports the SSHD’s position, as it recognises an implied incidental power under the IA 1971, with no principled distinction drawn between favourable and unfavourable decisions. He noted that Chichvarkin was applied in SM (withdrawal of appealed decision: effect) [2014] UKUT 64 (IAC), where the Upper Tribunal accepted that the SSHD’s broad immigration powers include withdrawing a decision “for the purpose of avoiding the Tribunal becoming the primary decision-maker” ([15]). He further relied on R (Sambotin) v Brent LBC [2018] EWCA Civ 1826, which recognises that, even where a decision-maker is functus officio, limited exceptions grounded in good administration permit reconsideration. Accordingly, in a case such as this, where an obvious error has occurred and allowing it to stand would undermine good administration, the SSHD should be able to rely on those recognised exceptions to revisit the decision.

Discussion

[59]As already noted, the decision communicated in the First Letter amounted to a windfall for YC; Mr Blundell described it as the “ultimate windfall”. YC derived an entirely unanticipated and unwarranted benefit from the grant of ILR to which he had no legal entitlement. It might fairly (and indeed accurately) be said that the SSHD’s decision was too good to be true. Consistent with the principle articulated in Bell v Lever Brothers Ltd [1932] AC 161, YC should not be permitted to retain this unintended windfall where he ought reasonably to have known that it arose from a fundamental mistake, particularly where the mistake goes to the very substance of the decision and renders the purported benefit something radically different from that which was intended.[60]The SSHD took prompt action to correct the error, with the issuing of the Second Letter. When initially explaining her actions to YC’s representatives, she did not suggest that the claimant’s ILR had been withdrawn, nor did she seek to distinguish withdrawal from revocation; the pre-action correspondence proceeded instead on the (unsustainable) basis that ILR had never in fact been granted. That position was abandoned before the UT, when the SSHD advanced a new case that the original ILR grant had been retrospectively replaced with limited leave, evidenced by the backdating of the Second Letter. Such an approach was not lawful. It is well-established that there is no power, whether in the Immigration Acts, the Immigration Rules or indeed under section 76 of the NIAA 2002, to cancel or revoke leave with retroactive effect:NM (Zimbabwe) [2007] UKAIT 00002, at [5], [7], and [9] (see for example [5]/[9]: “until the leave is curtailed, however, it remains in force. The Rules give no power to cancel leave retrospectively… Leave which has been granted and is current may be curtailed, but only with prospective effect”); and see again also Hashmi. That the UT did not deal specifically with the SSHD’s initial claim to have effected retrospective correction of YC’s immigration position, as pointed up by Mr Mackenzie, is not in my judgment material to the appeal.[61]There is no need further to debate here the precise characterisation of the SSHD’s action, nor the lack of consistency in how the SSHD has chosen to describe it; as my Lady, Elisabeth Laing LJ said in R(C1) at [49]:
“Nothing turns on the use of different verbs to refer to the same underlying concept… The right question to ask is what the Secretary of State has done”
What the SSHD did, or purported to do, in this instance was to replace the original grant of ILR with a substitute grant of LLR.[62]Evident caution must obviously be exercised before recognising an implied power vested in a Minister of State in the discharge of their statutory functions. However, subject to the important limitations which I have discussed at §§78-79 below, I am satisfied that the UT did not err in concluding that the SSHD did indeed possess an implied power under the IA 1971 to withdraw the grant of ILR communicated in the First Letter, that grant having been made as a result of administrative mistake. My reasons may be summarised under five headings as follows: i) The grant of ILR by the First Letter on 13 November 2023 was a manifest error. That error should reasonably have been immediately apparent to YC and his advisers, given that he had neither applied for ILR nor met the requirements of the Immigration Rules; ii) The SSHD has a well-established implied power, frequently exercised, to withdraw immigration decisions adverse to an applicant. The position in relation to immigration decisions favourable to an applicant has been addressed in legislation (i.e., section 76 NIAA 2002 and Article 8ZA(2)(d) of the Immigration Order 2000). There is obviously no complete equivalence between the withdrawal of the two types of decision (i.e., adverse or favourable), particularly insofar as it affects status of the recipient and/or third parties; however, I see no reason in principle why any distinction should be drawn about the existence of the implied power. I would simply add that, in order to withstand challenge, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon; iii) There is a clear public interest in ensuring that leave under the IA 1971 is granted (unless explicitly granted using powers outside of the Rules) only where the statutory and rules-based criteria are satisfied; iv) The absence of express statutory provision for such a power does not preclude its existence; the power is incidental to, rather than an extension of, the statutory scheme; v) Subject to the safeguards discussed below, common sense should prevail: an obvious administrative error should not be perpetuated merely because it was favourable to the recipient. I take these points in turn. (i) Obvious mistake. The circumstances in which any implied power may properly be invoked to supplement a statutory scheme are necessarily narrow. In this context, I suggest that the implied power to withdraw a favourable determination communicated as a result of a clerical error may be exercised only where the mistake is obvious, and its correction undertaken promptly. In the present case, it is clear that YC could not reasonably have expected to receive a grant of ILR, a status for which he had neither applied nor satisfied the requirements of the Immigration Rules. Grants of ILR outside the Rules are exceptionally rare. In that regard the mistake was obvious; the correction was effected straightaway.[64]As the UT rightly observed (judgment [49]/[51], see above) this was not a case in which the decision-maker mistakenly believed that YC was entitled to ILR and then discovered that he was not. We are concerned here with administrative error. In this regard, I wish to emphasise that the SSHD and her officials bear a particularly exacting responsibility to avoid mistakes of this kind, and they must be brought to account if they fail to take proper care in the discharge of their functions. Nonetheless, however robust the administrative processes, the possibility of human or technological error cannot be entirely excluded, even in decisions concerning ILR. The 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. Here, the correction (in the Second Letter) was issued approximately six weeks after the First Letter, and only some two weeks after the error had been brought to her attention. Had the purported grant of ILR generated consequences for YC or others, judicial review would have been available to challenge the exercise of the implied power and to ensure it remained within lawful bounds. No such circumstances arose in this case.[65](ii) Power to withdraw adverse decisions. It is common ground that the SSHD possesses a well-established implied power, under the IA 1971, to withdraw and reconsider decisions which are adverse to a claimant. In Chichvarkin, the Divisional Court (Hooper LJ and Kenneth Parker J), relying on AS (Afghanistan) v SSHD [2009] EWCA Civ 1076; [2010] 2 All ER 21, held that the “administrative and procedural arrangements” referred to by Sullivan LJ include the withdrawal of a decision under appeal so that it may be reconsidered in light of new material. As Kenneth Parker J observed at [42], such arrangements “can fairly and properly include the withdrawal of the decision under appeal with a view to reconsideration in the light of facts and matters advanced during the course of the appeal.”[66]At [46] of Chichvarkin, the Divisional Court further noted that it is routine in judicial review proceedings (“practically an everyday occurrence”) for the SSHD to withdraw a challenged decision for reconsideration, sometimes leading to a favourable outcome for the claimant, but in many cases resulting in a further adverse decision, albeit one addressing the claimant’s representations more fully. The Court rejected, at [48], the contention that withdrawal is permissible only where the SSHD accepts that the original decision was wrong, let alone unlawful. At [53], it affirmed the general principle that a decision-maker has an implied public law power to withdraw any statutory or prerogative decision, subject to public law principles, unless the power is expressly excluded. This approach was endorsed by Green J in R (Hafeez) v SSHD [2014] EWHC 1342 (Admin), who referred at [33] to “the pragmatic course of reconsideration.”[67]I recognise that there is obviously no complete equivalence between the withdrawal of an adverse decision and a favourable decision; the substance of the decision will affect the status of the recipient and/or third parties. That said, and subject to public law constraints (considered below), I see no reason in principle why any distinction should be drawn between the two types of decision when considering the existence of the implied power itself. In this case, of course, it is to be noted that the withdrawal of one erroneously favourable decision (granting ILR) was accompanied by the grant of a different favourable decision (granting LLR). I am sure that, to be effective, the withdrawal of a favourable decision which has been communicated as a result of an obvious administrative mistake must be promptly identified and acted upon.[68]There are sound policy reasons, in my judgment, why the SSHD should possess (in addition to her powers under section 76 NIAA 2002 and Article 8ZA(2)(d) of the Immigration Order 2000) an incidental power to withdraw a decision granting or refusing ILR, or any other form of leave, which has been granted by administrative error. The ability to correct mistakes without resorting to judicial review promotes orderly administration and avoids outcomes, such as the unintended grant of ILR, which would otherwise stand despite being plainly unjustified.[69](iii) Public interest: There is, of course, a strong public interest in clarity, finality and legal certainty in immigration decision-making, as in all areas of public law. However, there is an equally compelling public interest in ensuring that applicants for relief under the IA 1971 are granted only the status for which they lawfully qualify. It is a fundamental principle of the immigration system, as section 1 of the IA 1971 makes clear, that those who are not British citizens and do not have a right of abode “may live, work and settle in the United Kingdom by permission” (emphasis by underlining added). An individual should not be permitted to retain an unintended and significant benefit, such as immigration status, arising from administrative or clerical error. While the line of authority following Ram establishes that a mistaken grant may nonetheless have legal effect, as the Upper Tribunal observed, those cases do not address whether, or by what means, an obvious mistake may be corrected.[70]A further public interest, well illustrated by this case, lies in ensuring that public authorities possess the necessary powers to discharge their statutory duties consistently and lawfully. Errors, whether human or technological, are inevitable; decision-makers should not be irrevocably bound by decisions that result from unintended clerical or administrative mistakes, particularly where those mistakes confer substantive rights that were never intended.[71](iv) Parliament has not legislated; the power is incidental. Mr Mackenzie argued, with some force, that Parliament has expressly circumscribed the SSHD’s powers to revoke ILR in section 76 of the NIAA 2002 and has chosen not to confer any broader revocation power. As I mentioned above (§47), he argued that, despite numerous legislative opportunities, Parliament has never equipped the Secretary of State with the power she now asserts.[72]In my judgment, the absence of an express statutory power to withdraw a grant of ILR issued through clerical error does not preclude the existence of an implied or incidental power to do so. It would, indeed, be unusual for Parliament to legislate specifically to address the consequences of human or technological error in administrative decision-making. Significantly, Parliament has not conferred an express power to withdraw adverse decisions, although such a power is recognised in the 2008 and 2014 Tribunal Procedure Rules and is undisputed in this appeal. As the Privy Council observed in CICI v PF (Jamaica) (see §49 above), whether such implication is possible will depend on the circumstances of each statutory scheme, in particular the express functions conferred on the statutory body. The broad duties imposed on the SSHD under Part 1 of the 1971 Act, and in particular section 3, necessarily imply the ability to take steps required to discharge those duties; such incidental powers “consequential to the power itself” are not to be construed or “applied narrowly” (see Wade & Forsyth, Administrative Law, at §54 above).[73]An implied power to withdraw decisions enables the SSHD to correct errors or omissions without resort to judicial review. In the present context, it would allow an erroneous purported grant of ILR to be corrected, thereby avoiding the injustice of leaving an individual with a status for which they did not qualify. This reflects the nature of an incidental administrative power of the kind contemplated by Lord Sumption in New London College, where he recognised that the Secretary of State may exercise powers “reasonably incidental” to those expressly conferred.[74]I agree with the UT that none of the authorities cited, whether in the immigration context or the wider public law sphere, addresses the precise issue arising here. None holds that the SSHD lacks power to correct an obviously erroneous grant of ILR, nor that such a power is excluded. Equally, none suggests that the power invoked in this case is prohibited. I am also satisfied that Parliament cannot have intended section 76 NIAA 2002 to be a complete or comprehensive code of the circumstances in which a person’s ILR can be taken away; the power in section 76 was developed in response to particular policy imperatives, co-existing with the SSHD’s powers of deportation and administrative removal under the IA 1971. Moreover, as Mr Blundell has argued, each of the scenarios covered by section 76 involves deliberate action on the part of the recipient of ILR which justifies the SSHD terminating the leave. Express statutory intervention is necessary because the leave has been deliberately and, on the face of it, correctly granted in the first place by the SSHD; subsequent events have occurred (or come to light, in the case of deception) which mean that the public interest demands that the SSHD act to take the leave away. The position is qualitatively different in the case of leave which has been notified by administrative error.[75]I am persuaded that the power in issue is an incidental administrative power of the kind envisaged in New London College, and not a substantive power requiring express statutory conferral, as Mr Mackenzie contended. In New London College, the implied power recognised was extensive – more extensive, in my judgment, than the power in issue here – namely, to establish and operate a system for licensing educational institutions under Tier 4 of the points-based system. I therefore reject the submission that only express legislation could authorise the withdrawal and replacement of a mistaken grant of ILR. On the contrary, the correction of clerical error is properly implied as necessary or conducive to the effective discharge of the SSHD’s wider statutory functions. As Lord Lloyd-Jones emphasised in CICI v PF (Jamaica) at [40], the availability of an implied power depends on the circumstances of the statutory scheme and the express functions conferred on the decision-maker.[76](v) Process and Common Sense: Although it may be said that Haddon-Cave J adopted too broad an approach in Chaudhuri at [46] regarding the scope of a public authority’s implied power to revisit and revoke any decision undermined by a fundamental factual error, I accept his observation at [47] that procedural form must not be allowed to triumph over common sense. That approach accords with the principles of proportionality and utility and, as he went on to note, aligns with the developing principle of good administration in public law, as recognised by Lord Sumption in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39 at [32].[77]The ability to revisit and change a decision which had resulted from a fundamental mistake of fact articulated in Porteous is plainly not confined to the housing context, as demonstrated by Fajemisin and Chaudhuri. As Mantell LJ remarked in Porteous at [9], it would be surprising if a decision-maker could not revisit an earlier decision communicated as a result of clerical error; “commonsense and justice” ought to prevail in rectifying such mistakes. The suite of immigration authorities relied upon by the Appellant, Ram and the cases following it, address only the status or validity of mistaken grants. They do not consider, still less exclude, a public authority’s power to withdraw or correct an erroneously issued decision; in this regard the public law cases offer more support.[78]Limits on the implied power: The SSHD’s exercise of any implied power to withdraw a decision adverse to a claimant is constrained by established public law principles. It must not infringe the legal rights of others, including Convention rights, and must not be irrational, unfair, or otherwise incompatible with the general limits on administrative action (see Chichvarkin at [53]; Chaudhuri at [50]–[51]; New London College at [29]). The same constraints apply with equal force to the withdrawal of a favourable decision. Such a withdrawal is, by its nature, exceptional, highly fact-sensitive, and subject to close judicial scrutiny.[79]Both a grant and a refusal of leave carry consequences for an individual’s immigration status. However, a favourable decision typically has a more profound effect on a person’s settled expectations: it alters their legal and practical position, diminishes precarity, and enables the development of private or family life that may later underpin an Article 8 claim. These considerations underscore why any implied power to withdraw such a decision must be exercised sparingly and, if exercised at all, must (as I have indicated above) be exercised promptly.

Conclusion

[80]The IA 1971 Act confers on the SSHD the power to grant ILR; this must be exercised by notice in writing. A power to make a correction of the type that the SSHD made in this case, so as to ensure that a notice communicates the SSHD’s intended decision in respect of permission is, for the reasons set out above, in my judgment incidental – and is properly to be described as incidental – to the SSHD’s powers under the IA 1971 to grant permission and to administer the system of immigration control. The correct position was notified to YC on 22 December 2023, and from that moment he had an effective grant of LLR.[81]I am therefore satisfied that the UT did not err in dismissing this application for judicial review. I have had the chance to read in draft the concurring judgment of the Senior President of Tribunals, and I endorse his reasoning. For the reasons set out above, and in the concurring judgment, I would dismiss this appeal. Lady Justice Elisabeth Laing[82]I regret that I do not agree with the judgment of Cobb LJ. As my disagreement will not change the outcome of this appeal, I will keep my judgment as short as possible. I will only refer to three points.[83]First, the starting point is the statutory scheme in this case, not the statutory scheme in other cases. The express provisions of the primary legislation about immigration are, in this regard, a complete code. ILR has a special status. It is different from other forms of leave to remain. Section 76 of the NIAA 2002 gives the Secretary of State an express, and limited, power to revoke ILR in the circumstances stated in section 76. The question whether the prerogative, expressly preserved by section 33(5) of the 1971 Act, survives the later elaborations of the legislative scheme is not for this case. That question is touched on in the reasoning of the House of Lords in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192 and Alvi v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208. For the purposes of this case, it is accurate to describe the relevant provisions as a complete code about ILR.[84]I agree with Cobb LJ that it does not matter what word is used: whether it is ‘revoke’, ‘cancel’, ‘withdraw’, or some other word. In this case, the Secretary of State has, in substance, revoked a grant of ILR, which was made in accordance with statutory provisions, that is, by a notice in writing to the appellant. I do not agree that the Secretary of State can rely on incidental administrative powers to do something which is not expressly authorised by the statutory scheme, and which negates, rather than supplements, the power in question.[85]Hazell v London Borough of Hammersmith v Fulham concerns the powers of a local authority, which is entirely a creature of statute. The reasoning is nevertheless relevant to the powers of the Secretary of State in this context. The local authority had an express incidental power (section 111 of the Local Government Act 1972). The House of Lords held that it could not rely on that power to supplement the legislative code governing borrowing by local authorities. It therefore had no power to engage in interest rate swaps. If that approach is applied here, an incidental power to revoke ILR in a situation not covered by section 76 cannot be implied. Parliament has expressly conferred a limited power to do the very thing which the Secretary of State has done in this case. The Secretary of State cannot escape those limits by relying on an implied ‘incidental’ power. The effect of that is that the Secretary of State is expanding the express power conferred by Parliament in a way which Parliament has not authorised. An extra implied power to revoke ILR is not ‘incidental’ to the power to grant ILR: it is its antithesis or negation.[86]Second, I should say something about the ‘alternative route’ to which Cobb LJ refers in paragraph 55, above. That alternative in the Bassetlaw case was an application to the High Court by an individual (the leader of the Council) for judicial review of the grant of planning permission by the Council’s planning committee. This court, on an appeal against the High Court’s refusal to quash the grant, quashed that grant, because it was tainted by actual bias or by the appearance of bias. That possible alternative was expressly eschewed by the Secretary of State in this case, although she floated it in her summary grounds of defence, and the UT referred to it in its reasons for giving the appellant permission to apply for judicial review after the renewal hearing. No court has quashed this grant of ILR. Indeed, it is not suggested that this grant of ILR was unlawful in any way so as to mean that it should be quashed. But unless the court intervenes by quashing such a grant, it subsists.[87]The fact that the grant might have been ‘mistaken’ is irrelevant. The reasoning of Lewis LJ in paragraphs 68 and 69 of Vasa v Secretary of State for the Home Department [2024] EWCA Civ 777; [2025] 1 WLR 39 is an instructive analogy. Decisions are presumed to be lawful until quashed by the court. It is not open to the Secretary of State, as a matter of administrative convenience, and without applying to the court for the quashing of the grant of ILR, to revoke a grant of ILR on the grounds that the wrong template was used.[88]Finally on this point, although there was no dispute about the facts in this case, I record my concern that the Secretary of State did not support her claim that the grant of ILR was a mistake either by a witness statement from the person who is said to have made the mistake, or by disclosing any of the GCID notes, which are commonly seen in cases in which the Secretary of State’s decision-making is scrutinised by the court. If the court accepts the Secretary of State’s arguments in this case, no-one will be held accountable for this mistake. We do not even know who made the ‘mistake’. It is, quite simply, the job of the Secretary of State and her officials to avoid such mistakes. It is not the courts’ job to correct them.[89]Third, I do not agree that there is no difference in principle between withdrawing and reconsidering a decision which is adverse to a claimant, and revoking a grant of status, which may have consequences for third parties. Once the Secretary of State has granted ILR, she has done all that she has power to do in relation to that application by that applicant. She has exhausted her power to grant ILR in that case. She has no power to revisit that grant unless section 76 of the NIAA 2002 applies. By contrast, if she makes an adverse decision, she has not changed the claimant’s status. She has rejected his claim. She has not exhausted her power to grant ILR to that claimant. If, therefore, the claimant or his solicitors challenge the refusal, a decision to reconsider the refusal is self-evidently different in principle from an attempt to revoke what she has granted. If necessary, she can rely on section 12(1) of the Interpretation Act 1978 to reconsider a refusal. By contrast, she cannot rely on section 12 or section 14 to revoke a grant of ILR (see Piffs Elm v Commission for Local Administration in England [2032] EWCA Civ 486; [2024] KB 107). Lord Justice Dingemans, Senior President of Tribunals[90]I agree with the judgment of Cobb LJ, and agree that the appeal should be dismissed. As Elisabeth Laing LJ does not agree that the appeal should be dismissed, I should set out my own reasons for agreeing with Cobb LJ.[91]First, YC had not applied for Indefinite Leave to Remain (ILR). He had applied for asylum, alternatively humanitarian protection under article 3 of the European Convention on Human Rights (ECHR) and leave to remain on medical grounds and private life under article 8 of the ECHR. YC did not qualify for ILR under the Immigration Rules, although it was common ground that the Secretary of State for the Home Department (Secretary of State) had the right to grant ILR outside the rules. It should have been reasonably apparent to YC that the Secretary of State had made some sort of obvious clerical error when granting him ILR.[92]Secondly it was common ground between the parties that the Secretary of State did not intend to grant YC ILR, but did intend to grant YC Limited Leave to Remain (LLR) on medical grounds. The fact that the Secretary of State did not intend to grant ILR was obvious from the fact that although the First Letter, issued by the Home Office (Durham Asylum Team), said “you have been granted settlement (also known as indefinite permission to stay) in the UK”, the BRP received by YC’s legal representatives on 5 December 2023 simply referred to ‘Leave to Remain’. I agree with Elisabeth Laing LJ at paragraph 88 of the judgment that there was an absence of witness evidence from the Secretary of State as to how the mistake came to be made in the Home Office, but it is only fair to note that the Secretary of State set out in the grounds of defence that Home Office staff had used the wrong letter template, and that was not disputed.[93]Thirdly in R (New London College Ltd) v Secretary of State for the Home Department [2012] UKSC 51; [2013] 1 WLR 2358, referred to by Cobb LJ in paragraphs 40 and 75 above, the Supreme Court identified that the statutory powers of the Secretary of State to administer the system of immigration control “must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act”. In my judgment, an administrative power to correct obvious clerical errors which are reasonably apparent to the beneficiary of the error, is an ancillary and incidental administrative power necessarily granted to the Secretary of State.[94]I agree with Elisabeth Laing LJ at paragraph 88 that mistakes and obvious clerical errors should not be made, but we do not live in a perfect world. Courts occasionally make mistakes when drawing up orders to give effect to their decisions, and courts have an inherent jurisdiction to vary orders to make the meaning and intention of the court clear, which jurisdiction is recognised in the slip rule in CPR 40.12. Further, in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 the Court of Appeal recognised the need for a power to re-open appeals in very limited circumstances to avoid real injustice. In my judgment 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. For example, if the Home Office had sent the wrong template letters to 50 applicants for LLR, granting them ILR instead of LLR, there should be a principled basis on which such important errors could be corrected. In R v Secretary of State for the Home Department, ex parte Minton [1990] Imm AR 199, referred to by Cobb LJ in paragraph 43 above, I consider that the immigration officer would have been entitled to write in the missing number of months which had not transferred from the stamp on 6 August 1987, if that error had been noticed at the time, even though the legal effect of the illegible stamp was to grant Mr Minton ILR. As it was no attempt was made to correct the error until after Mr Minton had travelled out and returned to the UK on the basis that he had ILR.[95]Fourthly I do not consider that section 76 of the NIAA 2002, which gives the Secretary of State an express power to revoke ILR if the leave was obtained by deception, prevents this conclusion. This is because section 76 is dealing with a situation where ILR has been deliberately granted by the Secretary of State, albeit as a result of deception. The legislature might reasonably have assumed that if the Secretary of State made obvious clerical errors when exercising powers under section 4 of the IA 1971 which were reasonably apparent to the beneficiary, they could be corrected.[96]Fifthly, I agree with Cobb LJ that the Secretary of State’s power to correct obvious clerical errors which are reasonably apparent to the beneficiary of the error is constrained by established public law principles. These are summarised by Cobb LJ in paragraphs 78 and 79 above.[97]In these circumstances, YC’s appeal is dismissed. This means that YC has LLR, but not ILR.

Cited in 1 later judgment