Kularatna Neshanthan v Immigration Officer, Heathrow Airport (Terminal 3)

The appellant is a national of Sri Lanka born on 5 September 1984. Upper Tribunal Judge (“UTJ”) Blum granted him permission to appeal to the Upper Tribunal, limited to the first issue (as described below), against the decision of Judge of the First-tier Tribunal Afako (hereafter the “judge” unless otherwise stated) promulgated on 1 December 2015 dismissing his appeal against the respondent's decision of 24 September 2014 cancelling his indefinite leave to remain (“ILR”) that had been granted to him by the Secretary of State on 21 February 2014 .

Following the appellant's arrival in the United Kingdom on 23 September 2014, he was required to submit to further examination and was interviewed. The respondent decided to cancel the appellant's ILR because he concluded that, in his previous application for leave to remain as a student made on 25 May 2012, the appellant had submitted an English language test certificate that the respondent considered had been fraudulently obtained. The decision was made under para 321A of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereafter referred to individually as a “Rule” and collectively the “Rules”). It was not in dispute before me that , if the appellant had fraudulently obtained the English language test certificate which he used in his previous application of 25 May 2012, this amounted to a false representation under para 321A(2) in relation to his application for ILR of 26 October 2013.

This case raises two issues. The first issue is whether the judge materially erred in law in deciding that an immigration officer has power to cancel a person's ILR when the individual arrives at a port of entry after an absence abroad . The judge decided that the respondent had power to cancel the appellant’s ILR following his arrival in the United Kingdom on 23 September 2014 after a short absence abroad . The appellant contends that only the Secretary of State has power to cancel ILR.

If the first issue is decided in the appellant's favour, this would be determinative of the appeal before the Upper Tribunal. The judge's decision would be set aside and the appellant's appeal against the respondent's decision allowed on the ground that the decision was not in accordance with the law , a ground that was available to him at the time he lodged his appeal (on 2 October 2014) and which he did raise in his grounds of appeal. There would be no need to consider the second issue.

The second issue is whether permission to appeal to the Upper Tribunal should be granted on the appellant’s renewed application , made at the hearing before me , for permission to challenge the judge’s finding that the appellant had fraudulently obtained the English language test certificate which he had used in the previous application of 25 May 2012 . If the renewed application for permission is granted, then whether the judge materially erred in law in reaching his finding that the appellant had fraudulently obtained his English language test certificate. UTJ Blum had refused permission on this ground.

UTJ Blum also refused permission to appeal against the judge's decision to dismiss the appellant's appeal on human rights grounds. This was not renewed before me.

I heard submissions on the second issue de bene esse .

I shall deal first with the first issue and then the second issue. T he relevant factual background can be briefly stated at this stage.

The appellant arrived in the UK on 23 September 2014. He presented a valid Sri Lankan passport and a United Kingdom Biometric Residence Permit which showed that he had been granted ILR on 21 February 2014. This w as granted following his application for ILR on 26 October 2013 on the basis of his length of residence . On his initial examination on arrival on 23 September 2014 , he said that he had been away from the United Kingdom for three weeks and that he had qualified for his grant of ILR on the basis of having been a student in the United Kingdom for ten years. The appellant was required to submit to further examination because UK Visas & Immigration records indicated that an English language test certificate used by the appellant in support of his previous application of 25 May 2012 had been fraudulently obtained.

The English language certificate in question was a “ Test of English for International Communication ” (hereafter “ TOEIC ”) certificate issued by Educational Testing Services (“ ETS ”) after a test was taken on 18 April 2012 at Portsmouth International College . The appellant had used this certificate in support of his application on 25 May 2012 for leave to remain as a student which was granted from 11 June 2012 until 31 December 2014.

The wording of the relevant provisions referred to below relate to the versions in force as at the date of the decision in the instant case. Any amendments made since that date are indicated.

Section 3(1) of the Immigration Act 1971 (the “ 1971 Act ”) provides that a person who is not a British citizen may not enter the United Kingdom unless given leave to do so (s.3(1)(a)) . He may be given leave to enter the United Kingdom or, when already in the United Kingdom , leave to remain in the United Kingdom , either for a limited period or for an indefinite period (s.3(1)(b)) . If limited leave to enter or remain is given, conditions may be attached (s.3(1)(c)) .

Section 3(3) (a) of the 1971 Act provides that, in the case of limited leave to enter or remain in the United Kingdom, “ a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave cease to apply” .

Pursuant to s.4(1), the power under the 1971 Act to give or refuse leave to enter the United Kingdom “shall be exercised by immigration officers ” and “ the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (Footnote: ¹) (whether as regards duration or conditions), shall be exercised by the Secretary of State…” .

Section 3(4) of the 1971 Act provides:

No authority i s needed for the proposition that l eave to enter or remain is either limited as to duration or indefinite. This is supported by the definition of “ limited leave ” and “ indefinite leave ” in s. 33(1) of the 1971 Act, the interpretation section in the 1971 Act , which defines “ limited leave ” and “ indefinite leave ” as follows:

Indeed, s.3(1) (b) of the 1971 Act specifically provides that leave to enter or remain is given either for a limited period or for an indefinite period.

Article 13 (10) of the Immigration (Leave to E nter and Remain) Order 2000/1161 (the “2000 order”) provides that s.3(4) of the 1971 Act has effect subject to the provisions of Article 13. Article 13 provides as follows .

It is not necessary to quote para 2 of Schedule 2 of the 1971 Act which makes provision for the examination of individuals by immigration officer and medical examinations.

It is necessary to quote p ara 2A of Schedule 2 to the 1971 Act which provides:

Para 321A of the Rules reads:

Mr Ahmed relied upon the returning residents rule in the Rules, i.e. para 18 of the Rules , which reads:

Immigration officers are appointed pursuant to s.4 of the 1971 Act. The power of an immigration officer to examine persons who arrive in the UK with continuing leave is derived from para 2A of Schedule 2 of the 1971 Act. Para 2A(1) provides that para 2A applies to a “ person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival ”. Under para 2A, such a person may be examined by an immigration officer for the purpose of establishing whether there has been such a change in the circumstances of his case since that leave was granted that it should be cancelled or whether that leave was obtained as a result of false information given to him o r his failure to disclose material facts or whether there are medical grounds on which that leave should be cancelled.

The Upper Tribunal’s decision in Fiaz (cancellation of leave to remain – fairness) [2012] UKUT 00057 (IAC) concerned a national of Pakistan . On 9 September 2011, the Secretary of State granted him leave to remain as a student valid until December 2011. Shortly after 26 February 2011, he travelled to Pakistan where he remained until his arrival in the United Kingdom on or about 10 April 2011. He was questioned about his intentions. Following further enquires, his leave to remain as a student was cancelled on 11 April 2011 on the basis of a change of circumstances since it was granted.

The question arose in Fiaz whether an immigration officer has power to cancel limited leave to remain that had been granted by the Secretary of State. A panel of the Upper Tribunal comprising of the then President, Blake J, and Upper Tribunal Judge King, decided that an immigration officer does have power to cancel leave to remain which remains in force under A rticle 13(5) of the 2000 Order (which states that “ leave to remain which remains in force under this article shall be treated, upon the holder's arrival in the United Kingdom, as leave to enter which has been granted to the holder before his arrival ”, my emphasis). The Upper Tribunal also decided that the provisions of Article 13(5) were not unlawful for being ultra vires .

The Upper Tribunal’s decision in Fiaz was upheld on appeal by the Court of Appeal in MF ( Pakistan ) v SSHD [2013] EWCA Civ 768. The Court of Appeal decided that a person with limited leave to remain as a student granted to him by the Secretary of State in-country and who travels outside the common travel area but who returns within the currency of that limited leave to remain was a person who fell within para 2A of Schedule 2 of the 1971 Act and thus a person who may be examined by an immigration officer. The Court of Appeal concluded that an immigration officer had the power to cancel his limited leave to remain and, further, that A rticle 13(5) of the 2000 Order was not ultra vires .

The reasons for the Court of Appeal’s conclusions (insofar as material to the issues in the instant case) may be summarised as follows:

It has not been argued before me that, if I were to decide that Article 13 did apply to the appellant so that his ILR did not lapse upon his travelling to Sri Lanka , Article 13 is unlawful as being ultra vires . Nevertheless, it is relevant to have in mind the reasoning in MF ( Pakistan ) on the issue of whether Article 13 was ultra vires insofar as it applied to someone with limited leave to remain whose leave does not lapse upon his travelling outside the common travel area. Pitchford LJ agreed with the Upper Tribunal in Fiaz that Article 13 was not ultra vires and said, at paras 31 and 32 of the judgment, as follows:

In short, a person who arrives in the United Kingdom with leave that remains in force under Article 13 is treated as having leave to enter with the result that he or she may be examined by an immigration officer pursuant to paras 2 and 2A of Schedule 2 of the 1971 Act for the purpose of establishing the matters set out at para 2A(2)of Schedule 2 of the 1971 Act.

Whereas Fiaz concerned a person who has been granted limited leave to remain as a student, the appellant in the instant case had ILR granted to him by the Secretary of State by way of variation of his previous limited leave to remain . As with the instant case, Fiaz concerned para 321A of the Rules .

I turn to the instant case. It was not in dispute between the parties that the appellant's ILR did not lapse when he travelled to Sri Lanka in September 2014. Given that:

Mr Ahmed advanced four principal arguments, the first two of which were about the appellant’s ILR lapsing or not lapsing. The remaining two were not. I shall with these arguments in turn, although not necessarily in the order in which they were advanced. However, I should say at this stage that, whilst the arguments advanced on the appellant’s behalf are complex, the correct analysis and answer to the first issue are in fact relatively simpl e , as explained at para 31 above and 5 7-69 below.

In relation to the first argument, Mr Ahmed submitted that the words “ within the period for which he had leave ” in s.3(4) of the 1971 Act do not apply to persons with ILR because their leave is not limited in duration . This argument does not help the appellant in a ny way for the following reasons:

The second argument relies upon the returning residents’ rule in para 18 of the Rules. Mr Ahmed submitted that the provision under which the ILR of a person who leaves the United Kingdom and travels outside the common travel area remains in force is the returning residents rule in para 18 of the Rules . However, it is plain that there is absolutely nothing in para 18 of the Rules which states that the leave of such a person continues to remain in force when the person travels to a country or territory outside the common travel area. Nor can it do so, given that para 18 is in the Rules whereas the provision that would otherwise result in such leave lapsing is contained in primary legislation, i.e. s.3(4) of the 1971 Act. It is plain from the ordinary language of para 18 of the Rules that the Rule is concern ed with when a returning resident may be admitted for settlement: it says nothing about the person's ILR continuing and not lapsing when the individual leaves the United Kingdom and travels to a country or territory outside the common travel area. Indeed, para 18 of the Rules fits in with Article 13 of the 2000 Order and the correct interpretation as explained below. I therefore reject the second argument.

The third argument relies upon the Secretary of State's guidance entitled: “ Home Office, General grounds for refusal, section 3 of 5 – Considering entry at UK port, v26.0, Published for UK Visas & Immigration staff on 19 April 2016 ” (hereafter the “Guidance”) . Mr Ahmed relied upon pages 65 and 66 of this Guidance which read:

Mr Ahmed submitted that the respondent had failed to follow the Secretary of State's guidance at pages 65-66 of the Guidance, which applies to para 321A(2) of the Rules and which he asked me to note does not mention ILR at all. He submitted that the G uidance is an aid to understanding and applying para 321A . He submitted that pages 65-66 of the Guidance as a whole and in particular the text underlined above show that para 321A applies only to those who have “ entry clearance ” . He submitted that the reference to “ continuing leave ” in the heading of para 321A means, on an ordinary meaning, limited leave which is derived from entry clearance. He submitted that para 321A as a whole does not apply to anyone who has indefinite leave, whether their indefinite leave is indefinite leave to enter or ILR . Para 18 of Mr Ahmed's skeleton argument contends that the guidance “is a statement which identifies the circumstances in which the broad statutory criteria (namely para.321A) would be exercised. That criteria plainly refers to continuing leave being cancelled arising from an entry clearance application…… the guidance reflects the intention of the Secretary of State, and must be construed as being consistent with the intention behind [para 321A]”.

I reject these submissions for the following reasons:

The submissions ignore the fact that para 321A(3) plainly makes provision to exempt settled persons from having their leave cancelled “ where it is apparent that, for medical reasons, it is undesirable to admit that person to the United Kingdom ”. The reference to “ settled persons ” in para 321A(3) plainly shows para 321A is not limited to those who have been granted entry clearance .

I mportantly, Mr Ahmed’s approach, in deploying the respondent's G uidance as an aid to interpreting para 321A is fundamentally misconceived. The leading authorities on the interpretation of IRs include Mahad ( Ethiopia ) v Entry Clearance Officer [2010] 1 WLR 48, [2009] UKSC 16 and Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230. Para 25 of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC) sets out the relevant passages from Mahad and Odelola , as follows (the emphasis is mine):

It can therefore be seen that Mr Ahmed’s approach of using the Guidance to interpret the ambit of para 321A is inconsistent with Mahad .

There were two further submissions that Mr Ahmed made in relation to the Guidance.

Firstly , that the guidance had to be given weight . In this respect, Mr Ahmed relied upon Walumba Lumba (previously referred to as WL) ( Congo ) 1 and 2 (appellant) v SSHD (respondent) [2011] UKSC 12 where the Supreme Court said at [34]:

However, Lumba concerned an unlawful detention claim. In the passage quoted above, the Supreme Court mentioned the fact that imm igration powers are required to be transparently identified through immigration rules as one of the reasons for the conclusion that detention powers need to be transparently identified through formulated policy statements. However, the immigration power in question in the instant case – the power to examine someone who arrives at a border – is transparently identified through a Rule, i.e. para 321A.

Furthermore, the passage from Lumba quote d above and relied upon by Mr Ahmed does not assist with identifying the source of the provision that ameliorates the effect of s.3(4) of the 1971 Act, in the absence of which the appellant is in the position of someone with no leave and who required leave to enter when he arrived in the United Kingdom on 23 September 201 4 .

Secondly, Mr Ahmed relied upon the following comments of Jackson LJ in Pokhriyal [2013] EWCA Civ 1568 at [34]:

This submission is also misconceived. The passage relied upon in Pokhriyal plainly relates to the principle in R (Alvi) v SSHD [2012] UKSC 33. In Alvi , the Supreme Court considered s.3 (2) of the 1971 Act and held (in summary) that any requirement that must be satisfied for leave to enter or remain to be granted that is in the nature of a rule as to the practice to be followed in the administration of the 1971 Act must be laid before Parliament and that it is not permissible for a rule to refer to a document outside the Rules which sets out the requirement to be satisfied. Mr Ahmed, on the other hand, seeks to do that which is not permitted pursuant to Alvi : he seeks to rely upon the G uidance to effectively re-write para 321A. I use the word “ re-write ” because, if his submission is accepted, it would mean that para 321A must be read as if para 321A(3) did not exist.

For all of these reasons, there is nothing in the G uidance which assists the appellant. It is of no relevance in de ciding the issues in this case, in my judgement.

Mr Ahmed’s fourth and final argument concerned s.76 of the 2002 Act.

I shall first set out s.76 of the 2002 Act. Effective from 20 October 2014, the provisions of s.76 that are underlined below were repealed by the Immigration Act 2014 (Footnote: ¹⁰) subject to certain savings and transitional provisions (Footnote: ¹¹) which do not apply in this case because the decision in the instant case was made on 24 September 2014 and the appellant lodged his appeal on 2 October 2014. Accordingly, the version of s.76 that falls for consideration in the instant case is the version that was in force prior to the deletion of the provisions that are underlined below:

As can be seen, s.76 confers on the Secretary of State discretion to revoke a person's indefinite leave to enter or ILR in the circumstances listed in s.76(1)-(3) .

Mr Ahmed submitted that, given that s.76 makes provision for the Secretary of State to revoke a person’s indefinite leave to enter or ILR , para 321A must be interpreted so that it is limited to apply only to those who have limited leave to enter or remain. H e submitted that, by enacting s.76 of the 2002 Act, Parliament prescribed the procedure by which the ILR of a person who arrives at a po rt of entry may be cancelled , i.e. the immigration officer must permit the individual to re-enter the United Kingdom on his or her existing ILR and leave it to the Secretary of State to subsequently revoke the individual's ILR under s.76 . He submitted that a ny risk of the appellant absconding could have been dealt with by detaining him. Mr Ahmed submitted that n ot only was it inappropriate for the respondent to use para 321A to cancel the appellant's ILR , he had no power to do so given that Parliament has prescribed a different procedure in the form of s.76 of the NIAA 2002. Mr Ahmed submitted that there were very good reasons for limiting the ambit of para 321A in the case of an individual arriving at a UK port of entry with ILR to give preference to the use of s.76 after re-entry, as follows:

I can see some force in Mr Ahmed's submission that someone who has ILR has rights which are distinct from the rights of someone with limited leave. Rights are also conferred on persons who may be innocent of any wrongdoing that triggers revocation or cancellation of leave.

However, the fact is that the version of s.76 that was in force as at the date of the decision in the instant case (24 September 2014) and the date that the appellant lodged his appeal (2 October 2014) could not have been applied to the appellant. This is because he was not a person who “ cannot be deported for legal reasons ” (s.76(1)) or who “ cannot be removed for legal or practical reasons ” (s.76(2)). Further, and in any event, since he was a person who had not entered the United Kingdom , he could not be removed under s.76.

Furthermore, Mr Ahmed’s interpretation of para 321A of the Rules by having recourse of s.76 as the only power available or that should have been used – as opposed to an additional power, as advanced by Mr Fletcher - does violence to the language of para 321A of the Rules and Article 13(4) of the 2000 Order , in that, it requires one to either completely ignore the existence of para 321A(3) entirely and the fact that Article 13(4) refers in terms to leave which does not lapse under Article 13(2) remaining in force “ either indefinitely (if it is unlimited) or …”.

The application of s.76 as advanced by Mr Fletcher does not require one to ignore the existence of para 321A(3) of the Rules and the wording in Article 13(4) of the 2000 Order . I consider this to be the correct application . That is, that it is an alternative and additional power, available to the Secretary of State, to revoke indefinite leave to enter or ILR in the circumstances that are governed by s.76(1)-(3) of the 2002 Act. I do not accept that the mere existence of the power in s.76 can justify or warrant ignoring the existence of para 321A(3) of the Rules and the wording in Article 13(4) of the 2000 Order as I have explained above.

Mr Ahmed contended that, given that para 321A of the Rules was mandatory whereas s.76 of the 2002 Act conferred a discretion, the Upper Tribunal should be slow to permit the mandatory power in para 321A to be used where the discretionary power in s.76 was available. However, this argument cannot have any utility in the instant case given that s.76 was not available, as I have explained above.

I have concluded that the correct position is that s.3(4) of the 1971 Act, Article 13 of the 2000 Order and para 2A of Schedule 2 of the 1971 Act , taken together, apply in the case of someone who has been granted ILR by the Secretary of State and who travels to a country or territory outside the common travel area so that, if they return to the United Kingdom in circumstances where their leave remains in force pursuant to Article 13( 2 )-( 4 ), Article 13(5) applies so that their “ leave to remain which remains in force ” under Article 13 “ shall be treated, upon the holder's arrival in the United Kingdom, as leave to enter which has been granted to the holder before his arrival ” (Article 13(5) ) . My reasons are g iven at paras 5 8 -6 9 as follows:

When the appellant left the United Kingdom and travelled to Sri Lanka in the beginning of September 2014, his leave either lapsed pursuant to the first part of s.3(4) of the 1971 Act (the words: “a person’s leave to enter or remain in the United Kingdom shall lapse ”) or it did not lapse as a result of a combination of the exception in the second part of s.3(4) and some other provision. If I decide that that other provision is Article 13 (10) read together with Article 13(2) and 13(4) Article 13 (2) of the 2000 Order , then it must follow , from Article 13 (5) and the Court of Appeal's judgment in MF (Pakistan) , that such leave is treated as leave to enter upon the person's arrival in the United Kingdom. It must further follow that, i f such leave is treated as leave to enter upon his arrival in the United Kingdom, an immigration officer has power to cancel the leave pursuant to Article 13(7) and para 321A of the Rules .

I n my judgement, that other provision is Article 13(2) of the 2000 Order. Firstly, because I have rejected Mr Ahmed’s first and second arguments by which means he sought to argue that Article 13(2) did not apply. His remaining arguments – concerning the Guidance and s.76 of the 2002 Act – are irrelevant to this issue for the reasons given above.

Secondly, and more importantly, as a matter of construction , s ection 3(1)(b) of the 1971 Act is relevant in construing s.3(4). Section 3(1)(b) makes it clear that leave may be granted either for a limited period or an indefinite period. If s.3(4) was intended to apply only to those with limited leave, one would have expected that to have been made clear. Not only does s.3(4) follow on from s.3(1)(b) which makes the distinction between limited leave and indefinite leave clear, it also follows on from s.3(3) which applies in terms only to those with limited leave and makes reference to the removal of the limit to the duration of leave. Yet, s.3(4), following on as it does ss.3(1)(b) and 3(3), does not make any reference in terms to its application being confined only to those with limited leave.

Article 13(10) of the 2000 Order provides that s.3(4) of the 1971 has effect subject to the provisions of Article 13. Since I have decided that s.3(4) of the 1971 is not confined only to those with limited leave, it follows that, pursuant to Article 13(10), the application of Article 13(1)-(9) is not confined to those with limited leave.

Article 13(1) provides that, for the purposes of Article 13, “ leave ” means “ leave to enter the United Kingdom … and leave to remain in the United Kingdom ”.

Thus, Article 13 applies to those with indefinite leave, whether indefinite leave to enter or ILR. Indeed, Article 13(4) specifically refers to “ indefinitely ”.

ILR which is in force at the date of the individual's departure from the United Kingdom is therefore leave “ given by an immigration officer or the Secretary of State for a period exceeding six months” – because it is leave which is not limited by duration (s.33(1)of the 1971 Act) - within the meaning of Article 13(2) and therefore such leave does not lapse upon the individual travelling outside the common travel area pursuant to Article 13(2).

This interpretation – that Article 13 applies to those with indefinite leave, whether indefinite leave to enter or ILR – is consistent with the fact that Article 13(4) is plainly intended to apply to those with indefinite leave as well as those with limited leave. To decide otherwise would be to ignore the words: “ either indefinitely (if it is unlimited)” in Article 13(4).

Given that the provision under which the ILR of such a person remains in force and not lapsing is Article 13 (2) , it follows that Article 13 (5) must apply to such a person upon his arrival in the United Kingdom . It further follows that such a person is someone who may be examined by an immigration officer pursuant to para 2A(2) of Schedule 2 of the 1971 Act.

A ccordingly, the respondent did have power to cancel the appellant's ILR .

This conclusion is not only consistent with the analysis in MF (Pakistan) but also consistent with the judgment of Dobbs J in Ogilvy v SSHD [ 2007] EWHC 2301 (Admin) where, at [17], Dobbs J held, inter alia, that “ “ indefinite leave to remain ” under Article 13 (5) in the circumstances in which we find ourselves, is to be read as “leave to enter ” ”.

There is nothing in A rticle 13 (7) of the 2000 Order which justifies taking a different view. I agree with Mr Fletcher that, Article 13 (5) and (7) read together, lead to the result that it is the immigration officer who has power to cancel whenever a person has leave – whether such leave when granted was leave to enter or remain - which is in force by virtue of A rticle 13 upon the person's arrival in the United Kingdom and it is the Secretary of State who has power to cancel leave to remain in other cases.

I have therefore concluded that the judge did not err in law when he rejected the submission advanced on behalf of the appellant that the respondent did not have power to cancel the applicant's ILR. It has not been necessary to explain the judge's reasons since the arguments before me were not the same. I have nevertheless reached the same conclusion.

To summarise my conclusions on the first issue:

As part of his further examination, the appellant attend ed an interview. At the commencement of the interview, the appellant confirmed that he was fit and well and happy to be interviewed. At the end of his interview, he again confirmed that he was fit and well . In the course of his interview, he admitted that he had not taken the test on 18 April 2012 at Portsmouth International College .

The following is an extract from the interview record:

Having concluded that an immigration officer has power to cancel a person's ILR , the judge consider ed whether the respondent was correct to cancel the appellant's ILR . He concluded that the respondent was correct to cancel the appellant's ILR. He gave his reasons at paras 20-29 , which read:

In summary, t he judge considered the appellant's evidence to the effect that his interview was not reliable and, in particular, that his admission at his interview that he had not taken the test was not reliable. He rejected the appellant’s explanation that he was jetlagged at the time of his interview and also that he was not well. He rejected a medical report produ ced by the appellant in support of his evidence that he was unwell at his interview as “ an inept forgery ” . This was because the appellant was at Heathrow on 24 September 2014 and therefore could not have been in Colombo under the care of the doctor until 6 October 2014. He found that the interview was reliable. In the circumstances, he decided that it was not necessary for him to undertake a full assessment of the reliability of the ETS evidence. He relied instead on the appellant's admission which he considered was “ clear, compelling and conclusive ”. He concluded that the respondent was right to cancel the appellant's ILR.

Paras d.-f. of the written grounds contend, in summary, as follows:

Mr Ahmed accepted that an application for permission to renew the application for permission on the ground that had been refused had not been made. He was unable to assist with the explanation for the failure to make such an application. Nevertheless, he wished to pursue an oral application for permission to renew the application for permission on the grounds refused by UTJ Blum and which related to paras 3-6 of his skeleton argument. Paras 3-6 of the skeleton argument relate to paras d.-f. of the written grounds, summarised above.

I did not hear submissions whether the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “UT Rules”) make provision for an appellant to renew his or her application for permission on grounds that have been refused by the Upper Tribunal in an application to it for permission. Neither party was ready to deal with the issue, as it only arose at the hearing. This is why I heard submissions on the second issue de bene esse , as an adjournment would not have been in keeping with the overriding interest given that the parties were ready to deal with the first issue and Counsel on both sides had been instructed.

However, I am aware that , in an unreported but published decision of the Upper Tribunal (Holgate J and Upper Tribunal Judge Martin) in Hamza Zeyadi v SSHD (appeal number: DA/01744/2014) , the Upper Tribunal concluded (para 13) , having considered the UT Rules, that “ the clear implication ” was that the Immigration and Asylum Chamber of the Upper Tribunal does not have power to reconsider a paper decision refusing or limiting permission to appeal made by it. Para 13 reads:

However, even if the Upper Tribunal has power to reconsider a decision which refuses permission on certain grounds, I would have refused the application. Before giving my reasons, I shall summarise Mr Ahmed's submissions on the second issue.

Mr Ahmed relied upon R (Opoku) v (1) The Principal of Southwark College and (2) the Governors of Southwark College (QBD) [2002] EWHC 2092 (Admin) . Mr Ahmed submitted that there had been a change of circumstances since UTJ Blum refused permission on paras 3-6 of the grounds . As at the date of UTJ Blum's decision on 23 June 2016 to refuse permission, the Upper Tribunal had delivered its decision in SM and Qadir v SSHD (ETS – Evidence – Burden of proof) [2016] UKUT 00229 (IAC) which was delivered on 13 May 2016 . Mr Ahmed submitted that the circumstances have changed since then, in that, the Court of Appeal resolved the matter in its judgment in Sharif Ahmed Majumber & Ihsan Qadir v SSHD [2016] EWCA Civ 1167, by affirming the approach of the Upper Tribunal in SM and Qadir .

Mr Ahmed acknowledged that the appellant's grounds before UTJ Blum were not comprehensive enough. In the light of th ose grounds, he accepted that the decision of UTJ Blum was correct.

However, he submitted that, in the light of the decision of the Court of Appeal in Majumber & Qadir , the judge had erred by taking the approach he took, i.e. that he considered that it was unnecessary for him to consider the Secretary of State's evidence as to the alleged deception because he was satisfied that the appellant's admission t hat he had not sat for the test on 18 April 2012 was reliable. Mr Ahmed submitted that this approach was incorrect. He submitted that the judge should have considered the Secretary of State's evidence as to the alleged deception . He submitted that the judge should have decided whether it was sufficient to discharge the evidential burden to establish the alleged deception. He should then have considered whether there was an innocent explanation advanced by the appellant and whether the Secretary of State had discharged the overall legal burden of proof upon her to establish the alleged deception .

Furthermore, the judge had incorrectly placed the burden of proof upon the appellant by relying upon his admission. The respondent was not represented at the hearing before the judge. There was therefore no cross-examination of the appellant’s evidence. Nevertheless, Mr Ahmed accepted that it was for the judge to decide the contradiction in the appellant’s evidence, as between the admission in his interview and his witness statement where he said that he had been feeling jetlagged at his interview. He submitted that the judge should have considered whether the Secretary of State's generic evidence taken together with the appellant's interview record and his witness statement was such that the respondent discharged the overall legal burden of proof to establish deception.

Mr Ahmed submitted that, given that the evidence relating to the “ ETS Look up Tool” was incomplete , that the TOEIC certificate had not been submitted and that there w ere no witness statement s from Mr. Peter Millington or Ms Rebecca Collings before the judge to explain how the ETS results were connected to the appellant , there was insufficient evidence to discharge the initial evidential burden upon the respondent.

Opoku was a decision of Lightman J in the Administrative Court . In that case, two grounds were advanced in the application for permission to apply for judicial review, to which I shall refer as grounds (a) and (b). Permission was refused on the application on paper on both grounds. At a renewed oral hearing, permission was granted on ground (a) but refused on ground (b). At the substantive hearing and having heard oral argument on ground (a), Lightman J dismissed the application. The claimant thereupon applied for permission on ground (b) notwithstanding that permission to challenge on ground (b) had been refused both on paper and at the renewed oral hearing.

Lightman J considered the approach that the Court should follow when dealing with a renewed application for permission on grounds that had been refused by another judge in the same proceedings. A decision which grants permission on limited grounds is an interlocutory decision . It does not bring into play the doctrine of res judicata. Accordingly, a renewal of the application for permission on the grounds refused is not precluded. Nevertheless, a repeat application may be dismissed as an abuse of process (para 9 of Opoku ).

Paras 14 and 16 of the judgment in Opoku are helpful, although it is necessary to bear in mind that in Opoku , the decision refusing permission on ground (b) was made at an oral hearing of the renewed application for permission, whereas UTJ Blum's decision refusing permission on certain grounds was made on the papers. Paras 14 and 16 of Opoku , which are self-explanatory, read as follows:

However, in Smith v Parole Board [2003] EWCA Civ 1014, the Court of Appeal agreed with para 14 of Opoku but considered that para 16 was too restrictive. The important passages of Smith v Parole Board are at paras 16-18 of the judgment, which read:

If there is power to reconsider a decision to refuse permission on certain grounds, the key points which emerge from Smith v Parole Board are as follows. T here is a wide discretion. A judge should consider factors such as whether there was full oral argument when permission was refused on some grounds and whether any circumstances have changed materially. If there was full oral argument and the circumstances have not changed, the judge hearing the renewed application should require significant justification before taking a different view from the judge who granted permission on limited grounds . However, the Court of Appeal considered that the idea that there has to be a new situation, i.e. that the circumstances must be shown to be materially different, was wrong and that the only guidance that could be given is that each case is to be decided on its own circumstances and that it is necessary for there to be good reasons for taking a different view from the view of the single judge who granted permission on limited grounds.

However, the judgment of Lightman J in Opoku has more recently been referred to or cited without any adverse observations in, for example, R (Ewing) v Secretary of State for Justice [2008] EWHC 3417 (Admin) (at para 22) and BA & Others v SSHD [2012] EWCA Civ 944 (at para 27 (f)).

If there is power to reconsider a decision to refuse permission on certain grounds, I draw the inference that the issue is not settled as to whether a material change in circumstances is necessary. On the assumption that it is necessary, I reject Mr Ahmed’s submission that the judgment of the Court of Appeal in Majumder and Qadir represents a material c hange in circumstances since UTJ Blum 's decision was made, given that the Court of Appeal upheld the decision of the Upper Tribunal in SM and Qadir and that UTJ Blum had the benefit of the decision in SM and Qadir when he made his decision to refuse permission.

However, even if there is power to reconsider a decision to refuse permission on certain grounds and even if it is unnecessary to require a material change of circumstances since permission was refused by UTJ Blum, I would still have reached the same decision for the following reasons:

P aras d. - f. of the appellant’s written grounds are entirely hopeless , as are paras 3-6 of his skeleton argument before me. Both are predicated on the incorrect assumption t hat, as the respondent was not represented at the hearing and thus the appellant was not cross-examined, the judge should have accepted his explanation that he was not feeling well at his interview and that he had attended his test and that the medical report he relied upon had probative value . Both are predicated on the incorrect assumption that, as the appellant was not cross-examined at the hearing, all such evidence was unchallenged.

This assumption is simply wrong. The respondent's position was clear. He relied, inter alia, on the appellant's admission at his interview, that he had not attended the test on 18 April 2012 and that someone he knew had arranged for someone else to attend that interview on his behalf, to reach the conclusion t hat the appellant had practised deception , in that , he had obtained the English language test certificate fraudulently. The mere fact that the respondent’s non-attendance at the hearing led to the appellant not being cross-examined did not mean that there was no challenge to the medical report or the appellant's explanation that he had not felt well at his interview or his evidence in his witness statement that he had attended the test on 18 April 2012.

The argument at para f. of the written grounds, that the appellant's medical report was conclusive, is simply hopeless and ignores the judge's reasoning, that the appellant could not have been under the care of the doctor in October 2014 because the appellant was in the United Kingdom on 24 September 2014. It was for this reason that the judge rejected the contents of the medical report as unreliable and “ an inept forgery ”.

There is no substance in the contention at para f. of the written grounds, that, as the interview record was a written document, it could not display how the appellant had felt at his interview. Judge s of the First-tier Tribunal are frequently called upon to decide the weight to be given to answers given at interview even in circumstances where the interviewee states that he or she was not feeling well.

Contrary to para e. of the written grounds, the judge did not simply focus on the respondent’s evidence and ignore the appellant's evidence. To the contrary, he focused only on the appellant's evidence and did not take into account the respondent's evidence because he considered that, if as he had found, the interview was an accurate representation of what the appellant had told the immigration officer on arrival, there were no good grounds for not placing reliance on its contents . He had earlier considered the appellant's answers at his interview, his explanation that he had not been feeling well at his interview, the medical report and concluded that the interview was reliable and the medical report an “ inept forgery ” .

Para 6 d. of Mr Ahmed’s skeleton argument states that the appellant has completed a BSc in Computing and Information Systems along with other qualifications obtained in the United Kingdom and that he is a highly educated person who has no reason to use a proxy. In the particular circumstances of this case – i.e. the appellant's admission at his interview that he had not attended his test and someone else had instead – and the judge's finding that the interview was reliable, para 6. d of the skeleton argument amounts to no more than an attempt to re-argue the evidence and the judge's finding.

The instant case is an exceptional one, in that, if the interview record was reliable as found by the judge, the appellant’s admission at his interview that he had not attended the test on 18 April 2012 and that someone had arranged someone else to attend the test on his behalf is, as the judge said: “ clear, compelling and conclusive ”. N otwithstanding that it is evidence that emanates from the appellant, it is nevertheless evidence that the respondent can rely upon to discharge the initial burden as well as the overall legal burden to establish deception on the part of the appellant to the standard of the balance of probabilities, whatever the shortcomings in the generic evidence in the instant case and the “ ETS Look up Tool ” at Appendix E to the respondent's Explanatory Statement, although I should say that my copy of the respondent's bundle did in fact contain a witness statement from Mr Millington and a witness statement from Ms Collings .

The mere fact that the judge had relied upon the appellant's admission does not mean that he placed the burden of proof upon the appellant. This submission, advanced by Mr Ahmed, is simply wrong.

I have therefore concluded that paras d-f. of the written grounds and paras 3-6 of the appellant's skeleton argument are entirely hopeless.

On the basis of the appellant's own admission and the judge's finding that the interview was reliable, it is wholly unarguable that the judge err ed in law in reaching his conclusion that the respondent had established that the applicant had practised deception.

I therefore reject the renewed application for p ermission . Even if I have power to reconsider UTJ Blum's refusal of permission on paras d-f of the written grounds , paras d-f of the written grounds and paras 3-6 of the skeleton argument are wholly unarguable.