[2025] UKUT 00276 (IAC)

Was there evidence that the BRP was issued in error?

First, one must consider the Respondent’s submission initially advanced in writing and then maintained at the outset of oral submissions that there is “no evidence” that the Appellant had issued the BRP in error.

The November letter, imperfect though it may have been in the eyes of the judge, made it absolutely plain that the BRP had been issued in error. There is no other rational way to read the letter. It is true that the Appellant did not file evidence before this court with a statement of truth confirming the Secretary of State’s issuing error. That might have been preferable. But it is unnecessary. As Mr Malik accepted on query from the court, the evidence in a case must be read as a whole, in a fair and reasonable rather than artificially mechanistic way, and reasonable inferences can be drawn from it. Here divining the true picture is the work of but a few minutes.

The refusal letter is substantial and detailed. It runs in the appeal bundle from pp. 51-59. The Secretary of State refused leave on all grounds. The letter begins in bold font:

“Your protection claim (asylum application) made on 5 January 2021 has been refused.”

Having directly referred to the application for refugee status, humanitarian protection and permission to stay on a discretionary basis due to private and family life, the Secretary of State stated through her official:

“I am not satisfied that you qualify for permission to stay in the United Kingdom (UK) on any of these grounds.”

The Respondent feared persecution in Trinidad and Tobago due to his sexual orientation, but it was pointed out that same-sex activity was decriminalised in the country in 2018. The Secretary of State concluded that while prejudicial attitudes remained, it was possible to live openly as an LGB person in his home country. Therefore:

“You do not have a well-founded fear of persecution and [do] not qualify for asylum.”

Next, similar factors were considered to see if a humanitarian claim under para 339C of the Immigration Rules was made out. The Respondent was told it was not. A similar analysis of the article 8 ECHR claim was made. The paragraphs of the Immigration Rules he failed to satisfy were spelled out (paras 276ADE-276CE) with the conclusion that:

“I am satisfied that removing you from, or requiring you to leave, the UK would not be contrary to Article 8.”

The Respondent was further informed that “You do not qualify for discretionary leave.” He was told that the medical treatment he needed was not only available in Trinidad and Tobago, but he had previously received it there. This was all evidence before the First-tier Tribunal. The refusal letter was received by the Respondent’s solicitors on 16 August and the BRP was issued on 17 August with no intervening change of circumstances. There is a strong inference that given the detailed, carefully argued and firm terms of the Secretary of State’s refusal letter, there would need to be some factual basis for such a sudden change of heart if there were a genuinely and validly different decision to grant leave to remain.

In oral argument, Mr Malik at first resolutely maintained that the “prime difficulty for the Appellant was one of fact” because the judge had rejected the Appellant’s argument that the BRP had been issued in error. When the court asked Mr Malik, given the terms of the refusal letter, on what basis he said the Secretary of State had “decided” (for regulation 13 purposes) to grant refugee status and leave, he replied, “I don’t know what the Secretary of State accepted or rejected when granting refugee status”. Counsel’s difficulties arise from the strong and irresistible inference that refugee status and leave had not been granted, but refused and remained refused, and a permit issued in error. This inference is strengthened from the lack of any subsequent explanation from the Secretary of State after the issue of the BRP and the November letter stating unmistakably that there had been an issuing error. Counsel accepts that the November letter indeed qualifies as “evidence”. Therefore, counsel accepted that there was indeed “evidence”, should this court accept it, that the BRP has been issued in error. Mr Malik’s fallback submission was that it is “immaterial” whether the BRP had been issued in error, which we address further from paragraph 90 below.

We consider that it is obvious and frankly beyond sensible argument that the BRP was issued in error. In light of this blinding reality, one cannot credibly state that the Secretary of State “decided” to grant leave. In fact, she informed the Respondent in August and November 2023 that precisely the opposite was the case. It is for that reason that in the “Findings” section of the FTT judgment, the judge said in terms at para 26:

“I am satisfied that having received the SSHD’s full reasons for refusal of his asylum claim and indeed subsequently lodging notice of appeal against that decision, the Appellant can have been in no doubt that the SSHD did not intend to issue him with the BRP.”

If, as the judge found, the Secretary of State “did not intend” to issue the BRP, it is inconceivable that it was not issued in error. It plainly was. It has been often said that the law must deal in realities not technicalities. Here the situation is starker. The court is being asked to act on fictions. A permit that under delegated legislation requires a decision of grant of leave before its valid issue has been issued without a decision to grant leave and despite wholesale and flat refusal, yet it is claimed to be valid nevertheless.

We conclude that the BRP was issued in error.