[2025] UKUT 00276 (IAC)

Section 3(1)(b) the IA 1971 confers a discretionary power on the Secretary of State to grant leave to enter or remain to persons who are not British citizens. The power is broad and the Secretary of State retains the discretion to grant leave to enter or remain where an individual does not meet the requirements of the Immigration Rules (Munir v SSHD [2012] UKSC 32 at §44).

Section 4(1) of the IA 1971 specifies that the power to grant leave to enter or remain, or to vary leave, “shall be exercised by notice in writing given to the person affected”. Although the Act is silent as to what constitutes “notice in writing” or what form such notice should take, written notice of some immigration decisions is governed by the Immigration (Notices) Regulations 2003 (SI 2003/658) (“the Notices Regulations”). Regulation 4 of the Notices Regulations requires written notice of any decision appealable under section 82(1) of the NIAA 2002. Regulation 5 specifies the content of such a notice, including that it must include or be accompanied by a statement of the reasons for the decision to which it relates, and must be accompanied by a statement advising the individual concerned of any right of appeal.

An application for asylum or humanitarian protection will be “granted” where the individual meets the criteria set out in Part 11 of the Immigration Rules. Although it is common to refer to the “grant” of asylum (and that is the wording used in Part 11 of the Rules), refugee status is declaratory: the successful asylum applicant is recognised as a refugee. The recognition of refugee status does not in and of itself confer leave to remain in the UK, but paragraph 335 of the Immigration Rules provides that a successful applicant will be granted limited leave to remain or have existing leave varied. The refusal of an asylum or humanitarian protection claim is a decision which attracts a right of appeal under section 82(1) of the NIAA 2002 and is therefore one to which Regulations 4 and 5 of the Notices Regulations apply.

The issue of biometric residence permits is governed by The Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048) (“the Biometric Regulations”). Regulation 13(1) provides, so far as relevant:

“The Secretary of State may issue a biometric immigration document to a person who has applied in accordance with regulation 3, provided the Secretary of State has decided to —

(a)

grant limited leave to enter or remain to the person for a period which, together with any preceding period of leave to enter or remain, exceeds a cumulative total of 6 months leave in the United Kingdom…”

Section 104(4A) of the NIAA 2002 provides:

“An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the Appellant is granted leave to enter or remain in the United Kingdom (subject to subsection 4B).”

Subsection 4B provides for an Appellant’s notice that he wishes to pursue an appeal on protection grounds following the grant of leave, and is not relevant to this appeal.