X & Ors, R (On the Application Of) v The Secretary of State for the Home Department

Factual and Procedural Background

The appellants, all nationals of Yemen, include a primary appellant who was granted leave to enter and remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant until 23 April 2017, and other appellants who were his dependants. In 2016, a criminal investigation was launched involving the primary appellant and others, suspected of conspiracy related to tax fraud. In April 2017, the appellants applied to extend their leave to remain. The respondent deferred making a decision on these applications pending the outcome of the criminal investigation.

The primary appellant was arrested on suspicion of multiple offences but has not been charged and denies wrongdoing. The investigation involved extensive evidence, with legal challenges to search warrants concluding in January 2019. The earliest possible date for a charging decision was indicated as January 2022.

The appellants challenged the respondent’s decision to defer by applying for judicial review, initially refused permission but later granted on appeal. The Upper Tribunal dismissed the claim, holding there was an implied power to defer decision-making and that the respondent acted rationally in exercising it. The appellants then appealed the Upper Tribunal’s decision.

Legal Issues Presented

1. Whether the Secretary of State for the Home Department has an implied power to defer consideration of an application for leave to remain pending the outcome of criminal investigations.
2. Whether the respondent unlawfully imposed a requirement that the primary appellant must not be charged with a criminal offence before being granted leave to remain, without that requirement being included in Immigration Rules laid before Parliament as required by section 3(2) of the Immigration Act 1971.
3. Whether the decision to defer consideration of the applications was unlawful and irrational.

Arguments of the Parties

Appellants' Arguments

• The Secretary of State does not have an implied power to defer decision-making pending a criminal investigation.
• The decision to defer imposed a substantive condition — that the primary appellant not be charged — which must be included in rules laid before Parliament but was not.
• The decision to defer was irrational and unlawful because the appellants were entitled to a decision within a reasonable time and suffered foreseeable prejudice and stigma.

Respondent's Arguments

• The Secretary of State has an implied power to defer decision-making on applications, including pending criminal investigations, as an ancillary power necessary to administer immigration control.
• The guidance to put applications on hold applies only where a prosecution is pending, not merely on arrest, and is procedural rather than substantive, thus not requiring inclusion in rules laid before Parliament under section 3(2).
• The decision to defer was rational, based on efficient use of resources given the complexity and magnitude of the investigation, and consistent with public law principles.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reasoned that the Secretary of State’s powers under the Immigration Act 1971 include not only express powers but also ancillary powers necessary for effective administration of immigration control. This encompasses the implied power to defer decision-making on applications for leave to remain, including deferrals pending criminal investigations. The court relied on established authority confirming that such implied powers are lawful provided they are exercised rationally and not arbitrarily.

The court rejected the appellants’ argument that deferral imposed a substantive condition requiring parliamentary approval under section 3(2) of the Act. It distinguished procedural decisions, such as deferring consideration pending investigation, from substantive conditions that affect eligibility for leave.

Regarding the lawfulness of the deferral in this case, the court found the decision rational and justified by the complexity and magnitude of the ongoing criminal investigation. The respondent’s choice to await the investigation’s outcome, rather than prematurely deciding on incomplete information or duplicating investigative efforts, was a legitimate exercise of discretion. The court acknowledged the appellants’ difficulties but held that their existing leave was preserved by statute pending decision, and that the deferral did not amount to unlawful delay or irrationality.

Lady Justice Andrews emphasized the necessity of deferral powers as part of the decision-maker’s obligation to obtain sufficient material information before deciding, reinforcing that such powers must be exercised lawfully and rationally. She noted that the respondent’s reliance on the ongoing investigation was reasonable and not an abdication of responsibility.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that the Secretary of State for the Home Department possesses an implied power under the Immigration Act 1971 to defer decisions on applications for leave to remain pending the outcome of criminal investigations. Such deferral is a procedural decision ancillary to statutory powers and does not impose substantive conditions requiring parliamentary approval. The respondent’s decision to defer in the present case was lawful and rational.

The direct effect is that the appellants’ applications remain deferred lawfully until the criminal investigation concludes. No new precedent altering the scope of immigration control powers was established.