[2025] UKUT 00276 (IAC)

Legal effect of issuing

The Respondent’s second line of argument is that the act of issuing the BRP in itself constitutes the grant of leave.

This argument conflates and confuses two things: a decision to grant leave and the administrative act or acts necessary to issue a residence permit. It remains unclear how and why the undoubted error to grant the BRP to the Respondent came about. In a very literal sense, it might well have been the result of some official “deciding” to press some buttons or activate some software that resulted in the issuing of the document. That is very far from the Secretary of State deciding to grant leave to remain. Once more, one must live in reality. The issuing process was an error, not a deliberate decision to resile from the previous detailed refusal, reverse it, and make a fresh decision to grant leave on grounds that had been meticulously rejected.

The Respondent relies on two decisions of the Court of Appeal: R (Ahmadi) v SSHD [2013] EWCA Civ 512 (“Ahmadi”); and Anwar v SSHD [2017] EWCA Civ 2134 (“Anwar”). We accept that, as the Court of Appeal observed in Ahmadi at §22 and Anwar at §50, there is no meaningful distinction under the 1971 Act between a decision to grant leave to remain and notice of that decision. Written notice of a decision under section 4(1) of the 1971 Act is the way in which the power to grant leave under section 3(1)(b) of the Act is exercised. We also note that a decision to grant limited leave to remain as a refugee is not a decision which is appealable under section 82(1) of the NIAA 2002 and accordingly is not a decision to which the more detailed requirements in regulations 4 and 5 of the Notices Regulations apply.

However, we do not accept Mr Malik’s submission that the BRP was itself a grant of leave, or his alternative submission that the BRP was “notice in writing” of a decision to grant leave. The Appellant directed the court to authorities that consistently hold that immigration status documents such as a BRP - or (previously) a passport stamp or endorsement - are evidence of an individual’s status in the UK, and his rights and entitlements consequent on that status. For instance, the Court of Appeal stated in R (WA (Palestinian Territories)) v SSHD [2021] 1 WLR 2117 (“Palestinian Territories”) at para 83:

“The starting-point is that WA’s “biometric residence permit” is the key document evidencing his right of residence in the UK and his status for official purposes: it is equivalent in authority to his passport or (in another country) his identity card.” (emphasis provided)

Similarly in HMRC v BZ [2022] UKUT 264 (AAC), the Upper Tribunal (Administrative Appeals Chamber) held at para 38:

“The BRP is evidence of an individual’s immigration status, but it does not in and of itself amount to the initial notification of the recording of that status by the SSHD.” (emphasis once more provided)

These authorities characterise such status documents not as themselves a grant of leave, but as evidence of the grant of leave and of immigration status consequent on that grant. This is the Appellant’s central submission on this issue and finds support in the authorities.

As far as the BRP is concerned, this situation is unsurprising. The power to issue a BRP arises only under regulation 13 of the Biometric Regulations, and a BRP may be issued only where the condition precedent in regulation 13 is satisfied. The wording of regulation 13 makes it clear that the grant of leave to remain is a separate, prior decision to the issue of the BRP. The BRP cannot therefore constitute the grant of leave itself. It confirms that which has already happened. The clear distinction between the grant of leave and the issue of a biometric document in regulation 13 is also not compatible with the biometric document itself being the “notice in writing” required by section 4 (1) of the 1971 Act.

We cannot accept that the only remedy when a BRP has been issued in error is for the Secretary of State to revoke it. It is true, as counsel for the Respondent submitted, that should the Secretary of State find cause to revoke a person’s leave, that revocation would be capable of legal challenge. But this does not meet the point about a status document that has been invalidly issued in error, as opposed to the Secretary of State changing her mind about the continuing presence of the affected person. Where subordinate legislation specifies a condition before a BRP can be validly issued and that condition is absent, we cannot see how a permit issued in breach of the legislation can be legally valid. It is true that under section 3(1) of the 1971 Act leave to remain may be issued outside the rules in the discretion of the Secretary of State. However, there has been no power identified to us that permits the issue of a BRP when the decision condition precedent under regulation 13 for its issuing is absent. Such a BRP must remain legally invalid.

We cannot escape the conclusion that the Respondent’s submissions are flawed. They are arguments that fail to grasp the realities of the factual situation and seek to convert an obvious administrative error into a hitherto unknown species of grant of leave. These are neither technicalities nor trifles. The grant of leave to remain in the United Kingdom is a fundamental and vital decision for the affected person and their family and also for the British public. It cannot be right to transmute an administrative error into the grant of leave to remain on the basis of a claim to refugee status that has been clearly and comprehensively refused.

Returning to counsel’s submission on immateriality, we cannot accept the submission that it is “immaterial” whether a vital and influential status document such as a BRP has been issued in error. One only has to change the document and ask whether it is immaterial whether a passport has been issued in error, or a driving licence or any important public document. Erroneous issuing is plainly material. As Underhill LJ stated in Palestinian Territories at para 83:

“the integrity of official records is, rightly, a matter of fundamental importance”