Having one’s leave/visa curtailed is quite a serious matter but to have it cancelled is a lot worse. In this case the appellant (“F”) was a Pakistani who entered the UK as a student in 2006. Subsequently, from time to time, F’s student visa was extended until December 2011.
His last visa application was refused in October 2010. However in February 2011, upon appeal, F was given a visa to complete his studies.
Three weeks later he departed for Pakistan to attend his uncle’s funeral. He re-entered the UK on 11 April 2011 but following questioning and enquiries, owing to a change of circumstances, an immigration officer cancelled F’s visa upon arrival because he wrongly claimed that he was still studying.
First-tier Tribunal (FTT)
On 9 June 2011 the FTT dismissed F’s appeal because, after finally getting his visa earlier in the year, he failed to communicate with his college and did not enrol to resume his studies. Moreover, F mislead an immigration officer by stating that he attended classes prior to departing for Pakistan. This meant that a material change of circumstances within the meaning of the Immigration Rules had occurred and the decision to cancel his visa did not place the UK in breach of its obligations by disrespecting his private life.
Upper Tribunal (UT)
Permission to appeal to the UT was granted because although (1) it was for the Secretary of State for the Home Department to satisfy that there had been a material change of circumstances, the FTT expected F, on a balance of probabilities, to prove that there was no such change; and (2) the rules required the change to be since the visa was granted (9 February 2011), but the FTT partially relied on events which preceded that date.
F wanted his appeal to be allowed on the following grounds:
(1) The SSHD failed to establish a material change of circumstances since F’s last visa was granted.
(2) The statutory scheme did not permit cancellation of leave to remain.
(3) It was unfair to exercise the power of cancellation where there was an appropriate and less draconian power of curtailment.
The UT dismissed F’s appeal on each of these grounds.
Under immigration rule 321A a person’s leave to enter or remain can be cancelled on his arrival in, or whilst he is outside, the UK if “there has been such a change in the circumstances of that person’s case since the leave was given that it should be cancelled”. An immigration officer, under the authority of a Chief Immigration Officer, can cancel leave if the ground is made out.
Comparatively, under rule 323A leave pursuant to the points-based system may be curtailed, by rule 323A (d) (i) and (iii) curtailment of leave is available where the migrant fails to commence or ceases studying with the sponsor.
Under article 13, the Immigration (Leave to Enter) Order 2000 (SI 2000/1161) – “the Order”, made pursuant to the SSHD’s statutory powers under section 3B of the Immigration Act 1971 – makes provision for “leave which does not lapse on travel outside common travel area”.
Because it was for more than six months, F’s leave under the Order did not lapse when he left the UK: article 13(7), however enables such leave to be cancelled – by either an immigration officer (if the leave being cancelled was leave to enter) or by the SSHD (where the cancelled leave was leave to remain). Pursuant to article 13(5) such leave to remain, is treated as leave to enter that has been granted prior to entry to the UK for the purposes of Schedule 2, paragraphs 2 and 2A of the Immigration Act 1971 – provisions which allow immigration officers wide-ranging, almost totalitarian, powers whereby upon examination (to the test of “whether there has been such a change in the circumstances of his case”) an officer can cancel leave to enter to a person “who has arrived in the UK with leave to enter which is in force but which was given to him before his arrival”.
In relation to ground 1 the UT explained that while his October 2010 visa appeal was ongoing, F was suspended from attending his sponsoring college. When F finally got his visa in February 2011, he failed to inform the college which meant that his suspension changed from an involuntary direction by the college to a personally instigated “voluntary failure” which was material to his continuing eligibility for a Tier 4 (General) student visa. Fax correspondence between the college and the immigration officer revealed that F’s 40-day absence from the UK meant that he lost his place to study at the college (which would not longer accept him); thus, F’s situation differed materially in comparison to when he was given his visa in February 2011.
Relying on Pitchford LJ, at , in SSHD v Boahen  EWCA Civ 595 – “the purpose of the power of cancellation is to ensure proper immigration control, and the use of a visa by a visa national for a visit whose purpose is unauthorised is, on the face of it, a serious matter” – the UT, at , decided that the precondition for cancellation was “made out”. Moreover, a sensible reading of rule 321A meant that where leave is granted on appeal for a purpose and it disappears while the appeal is being decided, there was “no reason why that change of circumstance does not continue through to the period when the leave was granted and thus enable cancellation” (at ).
In relation to ground 2 the UT, at , was “unimpressed” with the argument that the Immigration Act 1971 was restricted to “promoting rules of practice for the administration of the scheme under the statute rather than the administration of the scheme under Orders made pursuant to the statute”. Rather than accepting that the powers of cancellation under the 1971 Act referred to leave to enter and not to remain, at  the UT explained that under the Order “leave to remain which remains in force shall be treated on the holder’s arrival as leave to enter”.
At  it was also noted that “rather than the rules alone”, the terms of the Order read conjunctively with the 1971 Act (Schedule 2, paragraph 2A) “gave authority to an immigration officer to make the decision in question.”
In relation to ground 3, following authority, at  it was agreed that curtailment was discretionary, whereas cancellation was mandatory; the former was exercisable to a Tier 4 (General) student visa; and where the power to curtail is more appropriate cancellation can cause unfairness. Where cancellation is “conspicuously unfair” the decision is not in accordance with the law and the Tribunal is empowered to remake the decision failing which “a lawful decision remains outstanding.”
It was submitted on F’s behalf that the cancellation of his visa was unfair because curtailment, and not cancellation, was “tailor-made” for his case: it would not only allow a judge’s discretion on appeal (which cancellation wouldn’t), but also preserve existing entitlements under section 3D of the 1971 Act. Reliance was placed in Laws LJ’s decision, at –, in JM (Liberia) v SSHD  EWCA Civ 1402 – as endorsed by Sedley LJ in TE (Eritrea) v SSHD  EWCA Civ 174 at  – to say that pending any appeal F was forced into an “unlawful position” (at ). It was further argued that F “was unable to pursue his studies pending the appeal and was thus disadvantaged”.
In appraising the above submissions, at  the UT set out six points (listed (a)–(f)) to dismiss F’s appeal; cancellation was appropriate as the purpose of his visa had collapsed and he had voluntarily opted to visit Pakistan without informing his college – he was not a “victim” of circumstances outside his control. Likewise, upon his return to the UK in April 2011, he mislead an immigration officer about his studies. Moreover, given that his purpose had failed he could make a fresh application for entry clearance and since, in April 2011, he was not deemed to have entered the UK within the meaning of the 1971 Act, nothing turned on the JM (Liberia) point; inevitably because F had no connection with the UK apart from his studies, “there was no credible human rights claim why removal was disproportionate.”
At , the UT was critical of the expectation that its jurisdiction could be “degraded to a general judicial power to depart from the Rules where the judge thinks such a course appropriate or to turn a mandatory factor into a discretionary one.” Moreover, fairness was procedural and not substantive, thus it was not “an untrammelled exercise of discretion to permit people to remain who have failed to use the previous permission.”
The UT, at , was quite angry at the waste of resources in this case because it found that the immigration officer’s cancellation of F’s leave was in fact the right decision to make. Equally, the UT agreed with the FTT’s decision that F’s private life failed to earn him any rights in the UK:
i) An immigration officer has power to cancel a leave to remain which remains in force under article 13(5) of The Immigration (Leave to Enter) Order 2000 (SI 2000/1161).
ii) The provisions of that article are not unlawful for being ultra vires.
iii) A change of circumstances justifying cancellation exists where the basis for the grant of the leave has disappeared: SSHD v Boahen  EWCA Civ 595 applied.
iv) It is possible that a change first occurring before and continuing after the grant of the leave may be “such a change in the circumstances of that person’s case since the leave was given that it should be cancelled”.
v) The powers of curtailment of leave to remain may overlap with the power to cancel leave.
vi) Where either power may be exercised it may be that the duty of fairness requires the leave to be curtailed rather than cancelled.
vii) It is material to whether fairness required curtailment rather than cancellation as to whether the change of circumstance was the responsibility of the claimant or not, and whether he had endeavoured to misrepresent the position during his examination.
viii) The jurisdiction to determine that a decision is not in accordance with the law because of a lack of fairness, is not to be degraded to a general judicial power to depart from the rules where the judge thinks such a course appropriate, or to turn a mandatory factor into a discretionary one: fairness in this context is essentially procedural.