SA (Pakistan) & Ors v Secretary of State for the Home Department

These are three renewed applications for permission to appeal on a ground for which permission was refused on the documents by Sir Richard Buxton. I put it like that because permission to appeal was in each case granted by Sir Richard on another ground, which is common to all three cases. That is why these three renewals have been listed together this morning. In fact while in two of the cases the renewed ground is the same, in the third, NB (Pakistan), it is quite different. It is therefore convenient to deal with the other two first, that is to say SA (Pakistan) and PB (India). In these two cases the point raised now concerns the meaning and vires of paragraph 322(1A) of the Immigration Rules. That provision reads as follows beneath the heading, “Grounds on which leave to remain in the United Kingdom is to be refused”. The paragraph then reads as follows:

“(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.”

The heading to that subparagraph and indeed to subparagraph (1) appears to be mandatory terms in contrast to the remaining subparagraphs of paragraph 322, that is to say subparagraphs (2) to (11), which are headed “Grounds on which leave to remain in the United Kingdom should normally be refused”. It is clear that when paragraph 322(1A) refers to “false” representations and “false” documents or information, it is not using that word to indicate deliberate and intentional deceit on the part of an applicant. The phrase “whether or not to the applicant’s knowledge” shows that unwitting inaccuracy in the representations made or the information supplied would suffice and require refusal of leave to remain and indeed there is authority to that effect.

Given that construction, there is no doubt that both these two applicants fell foul of the express wording of this provision. The applicant, SA, on his application form seeking further leave to remain as a student, stated that he did not have any criminal convictions. In fact he had two convictions, both dated 12 February 2007, one for using a false instrument for other than prescription for scheduled drugs and the other for driving without a licence. These in fact were less than two years before he made the application. In the case of PB she stated on her application for leave to remain that she and her dependents did not have any criminal convictions. That was untrue. Her husband had a criminal conviction in the United Kingdom for an offence under the Sexual Offences Act 2003. Her evidence to the AIT was that she and her husband had forgotten about it because it had happened nearly four years earlier. Once again she clearly was in breach of the terms of paragraph 322(1A). In SA’s case his evidence was that he did not think that he had a criminal conviction because he thought that, having paid the fines, that was an end to it.

The argument which is advanced by Mr Malik on behalf of both these two applicants is that this provision in the Immigration Rules is in mandatory terms if it is taken literally. If so, it is either ultra vires because it leaves the Secretary of State no room for discretion and so falls outside the power granted by section 3(2) of the Immigration Act 1971 under which the Immigration Rules are made or, alternatively, the provision should be interpreted in a more flexible manner so as to avoid its unlawfulness and, on that basis, the applicants are likely to have their applications granted.

Rather more emphasis has been placed on the second of those two approaches this morning in the submissions made by Mr Malik. He contends that strict application of the wording of this paragraph would be contrary to common sense. It would, for example, penalise someone for a minor clerical error such as a mistake as to the day or the month of a dependent’s birth. It would be perverse were an application of this kind to be refused on such a ground. Mr Malik contends that the rules are not intended to catch innocent but mistaken representations and consequently they should be read more generously.

I will deal with these arguments in respect of SA and PB before I turn to the rather different case of NB. It is right that this particular provision of the Immigration Rules is expressed in mandatory terms. So, of course, are many other parts of the Immigration Rules, such as those requiring a valid entry clearance if the person is to be allowed to enter under various provisions: see, for example, paragraph 245B.

Such provisions are not ultra vires the Home Secretary’s power under section 3(2) of the 1971 Act because the rules are, as that subsection states, statements of the rules as to the practice to be followed in administering the 1971 Act. The Secretary of State retains, as Mr Malik recognises, a discretion to grant leave to enter or leave to remain outside the rules. That is clear from two divisional court cases, R v SSHD ex parte Rajinder Kaur& Ors [1987] Imm AR 278 and R v SSHD ex parte Ounejma [1989] Imm AR 75, both of which dealt with the provision requiring refusal of leave to enter if there was no entry clearance. In the former Glidewell LJ and Schiemann J, as he then was, held that such a mandatory rule was intra vires, the Secretary of State retaining a discretion. The same approach was adopted in the latter case. I can see no prospect of persuading the Court of Appeal that paragraph 322(1A) is ultra vires. Of course there is some force in what Mr Malik says about the approach which one should adopt towards the interpretation of the Immigration Rules. They are to be interpreted sensibly and not as strictly as one would when construing a statute. See for example R v IAT ex parte Alexander [1982] 1 WLR 1076 at 1080.

That would entitle, in my view, an immigration judge to regard a trivial and innocent mistake in an application form as falling outside the terms of this provision. To that limited extent, I accept the point made by Mr Malik about a flexible interpretation but only to that extent. It would not apply simply because an error was made innocently if that error was nonetheless a serious one. It cannot avail these two applicants, even were there errors to be regarded as innocent ones. The misinformation provided in these two cases was very far from trivial. In both cases it related to the presence or absence of criminal convictions. The fact that in PB’s case the conviction was that of her husband does not render the error less serious because, if her application was granted, her husband would remain in this country. This provision, I have no doubt, is intended not merely to catch dishonest applicants but also to ensure that applicants take appropriate care to ensure that the information they supply is accurate and reliable. These two applicants did not. The inaccurate statements which are prima facie caught by the terms of this provision may be of varying degrees of importance, but in my view there can be no doubt that a false statement as to criminal convictions must be one of the most serious of the matters intended to be covered by this particular paragraph. I can see no realistic chance of a successful appeal by either SA or PB on this ground.

I turn, therefore, to the remaining case, that of NB. The ground for which permission is sought here is quite different. NB is a citizen of Pakistan, who enjoyed entry clearance to this country and who had a work permit granted in December 2006. However, on 4 September 2008 this was cancelled under paragraphs 321 and 323 of the Immigration Rules. This was on the basis, first, that his employer had informed the UK Borders Agency that the applicant’s employment had ceased in August 2008 and, secondly, that material facts were not disclosed or there had been such a change in circumstances since leave was granted that leave should be cancelled. Realistically, it is the latter formulation, the change in circumstances, which formed the basis of the decision under challenge. The authorised employers in terms of the work permit were a firm called Kesser Jewellers. The applicant did indeed work for them as from December 2006 and it was they who applied for his work permit. In August 2008 he was on leave in Pakistan, returning on 3 September of that year. He learned when he arrived at Manchester Airport that his employment had been terminated. He had, it seems, not received any oral or written warnings from his employer that this was to happen.

However, work permits are granted to specific employers and there is no doubt that there had been a material change of circumstances once the applicant’s work permit was no longer valid. It is accepted by Mr Malik on his behalf this morning that the conditions set out in the work permit of being employed by the named employer had, as it is put in the skeleton argument expired. But it is said that the first immigration judge, Immigration Judge Doyle, had a discretion under paragraph 321(ii) and paragraph 323 which he had not exercised. The first of those propositions as to the existence of discretion is right and the second, that it was not exercised, is probably right. Certainly on reconsideration Senior Immigration Judge Ward accepted that Mr Doyle had not exercised a discretion, but it was held by the Senior Immigration Judge that the outcome could not have been any different. A work permit was specific to the named jewellers and, once his employment with those jewellers had ceased, he could not fulfil one of the work permit requirements. It followed from that that he could not seek entry on such a basis. I am bound to say that seems to me to be entirely right. There is no reasonable prospect of a successful appeal in this case. What the Senior Immigration Judge decided was correct and it follows that the renewed application for permission to appeal must be dismissed.