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R (on the application of Kelly) v Secretary of State for the Home Department

DATE: 17 Feb 2005

The claimant (K) applied for judicial review of the defendant secretary of state’s decision that he had obtained indefinite leave to remain in the United Kingdom by deception and would be removed. K had arrived in the UK in 1996, when he was granted six months’ leave to enter as a visitor. He was subsequently granted leave to remain as a student until 1998. Before his leave expired, K married a UK citizen (H) and was granted further leave to remain. In 2001 K applied for, and was granted, indefinite leave to remain. Shortly afterwards H informed the Home Office that the couple were no longer together and that K was living with another woman. The secretary of state found that K’s claim to have been in a subsisting marriage had been false and issued orders for his removal under the Immigration and Asylum Act 1999 s.10(1) . K claimed that the relationship had subsisted after he had been granted indefinite leave to remain and that the secretary of state had thus failed to satisfy the burden of proving that he had obtained leave by deception.

Held, refusing the application.