Al-Azad v Secretary of State for the Home Department [2024] EWCA Civ 407 (25 April 2024)
The Court of Appeal has rejected the argument that the SSHD should not have refused Mr MN Wohhab Al-Azad’s application for indefinite leave to remain (ILR) on the basis that he made false representations in an earlier application for leave to remain as a Tier 1 (Entrepreneur) Migrant. Lewis LJ (with whom Whipple and Baker LJJ agreed) held that under paragraph 322(1A) of the Immigration Rules, leave was to be refused where false representations in relation to an application for leave to remain or a variation of leave to remain had been made. The application for ILR, made whilst the Tier 1 application was still pending, varied the existing application. The new ILR application did not replace it the earlier pending Tier 1 application. In this appeal from the Upper Tribunal, the Court of Appeal had to determine the proper interpretation of the Immigration Rules set out in paragraph 322(1A) and paragraph 322(5). Lewis LJ stated that an applicant must be honest throughout the application process. Mr Al-Azad was a Bangladeshi national had been granted leave to remain until 2013 as a Tier 1 (Highly Skilled) migrant. But before that leave expired, in 2013 he applied for leave to remain as a Tier 1 (Entrepreneur) migrant. While that application was pending, in 2018 he applied for ILR on the basis of 10 years’ continued lawful residence in the UK. The SSHD refused to grant ILR and found that Mr Al-Azad had made false representations in the application for leave to remain as a Tier 1 (Entrepreneur) migrant.
The decision-maker found that he had not engaged in a genuine business and had formed a partnership with another person with a view to appearing to satisfy the requirements for leave to be granted. The decision-maker also considered that paragraph 322(1A) required refusal in such circumstances, and alternatively, that leave would have been refused under paragraph 322(5). Mr Al-Azad appealed against that decision to the First-tier Tribunal on the basis that any false representations had merely been made in connection with the Tier 1 (Entrepreneur) application and not the later application for ILR. The FTT dismissed the appeal. An appeal against that decision to the UT was unsuccessful. Mr Al-Azad appealed against the UT’s decision to the Court of Appeal. He was aggrieved because he found that the FTT misconstrued paragraph 322(1A) of the Immigration Rules. The UT’s conclusion that there was no material error in the FTT’s decision was wrong in law. He said that the FTT had erred in law in failing to conduct the two-stage balancing exercise as required under paragraph 322(5) of the Immigration Rules. The UT’s conclusion that there was no such error in the FTT’s decision was, therefore, wrong in law. The SSHD sough to uphold the decision on two additional grounds. Firstly, that the alleged errors were academic as Mr Al-Azad had not appealed against the FTT’s finding that his application did not meet the requirements of paragraph 276B(ii)(c) of the Immigration Rules. Secondly, if the FTT erred in law on paragraph 322(5), any error was immaterial because any rational tribunal must have come to the same conclusion.
Operation Meeker
As part of an operation known as Operation Meeker, the SSHD had investigated persons who were suspected of falsely creating businesses to assist applicants wishing to obtain leave to remain as Tier 1 (Entrepreneur) Migrants. In 2018, six individuals were convicted of fraud and five were connected with one of two immigration firms, Immigration4U and a second firm. The sixth individual was connected with JTC Accountancy.
The 2013 application for leave to remain as an entrepreneur was made on Mr Al-Azad’s behalf by Immigration4U. In that application, it was claimed that he, and another person, had invested a total of £51,094 (£25,547 each) in a company called A H Palak Ltd but the SSHD doubted that this was a genuine business investment. The SSHD considered that the accounts of the company included numerous payments to companies or persons which were not genuine transactions. Mr Al-Azad was invited to comment on these matters.
Variation of application
Mr Al-Azad relied upon paragraph 35 of the judgment of Richards LJ in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78 to the effect that where an application is varied, any decision will relate to the application as varied. He argued this indicated that it was the subsequent application (not the initial application) that fell for consideration. He also placed reliance on paragraph 50 of the judgment of Beatson LJ in Khan v SSHD [2016] 4 WLR 56 to the effect that where there has been a further application to vary leave to remain, there must be compliance with the requirements of the rules at the date of the variation as if the new variation were a new application. Mr Al-Azad conveniently wanted to use the case law to make the 2013 application “disappear” from the picture and erase his false statements. The relevant rules at the material time for his ILR application were rules 276A1 and 276.
The Court of Appeal
Lewis LJ first interpreted paragraph 322(1A) and then addressed paragraph 322(5).
Paragraph 322(1A) stated that where false representations in relation to an application for leave to remain or variation of leave had been made, the leave was to be refused. Notably, the 2013 application was to vary Mr Al-Azad’s existing leave to remain as a Tier 1 highly skilled migrant. The subsequent 2018 application for ILR involved a variation of the 2013 application to change the duration of and basis on which the variation of Mr Al-Azad’s existing leave to remain was sought. Counsel for Mr Al-Azad argued that the provisions of paragraph 332(1A) only applied where the false representations had been made in the application that was being considered and determined. They said there was a difference in law between an original application for leave and a subsequent application and the later application replaced the earlier, or previous, application which simply disappeared and no longer existed and did not need to be determined. They said that the requirement to refuse leave under paragraph 322(1A) only applied if the false representations had been made in relation to the later application not the previous application. Lewis LJ stated that the issue in the present case concerned the relationship between the two applications to vary Mr Al-Azad’s existing leave. He held that:
33. I am satisfied that the proper analysis is that the original application to vary the existing leave to remain is itself varied by the later application. The original application remains in existence, albeit that the basis upon which leave to remain is sought has changed. It is that application, as varied, which is considered and determined by the Secretary of State. Put simply, the original application does not, as Mr Malik submitted “simply disappear”. It is not replaced by the later application. It is not withdrawn. It remains in existence albeit in varied form. If false representations are made in relation to that application (i.e. that application as originally made and then as varied), rule 322(1A) requires that the variation of leave be refused.
34. That conclusion follows from a consideration of the Immigration Rules in force at the material times and the provisions of section 3C of the Act. I deal first with the relevant provisions of the Immigration Rules in force at the material time (the provisions have subsequently changed). Paragraph 34BB is headed “Multiple Applications”. Paragraph 34BB(1) expressly provides that an application “may only have one outstanding application for leave to remain at a time”. The remainder of the rule then addresses the question of how to resolve a situation where two (or more) applications have been made. Paragraph 34BB(2) provides that where one application has been submitted but it has not been decided, and an applicant submits another application, that later application “will be treated as a variation of the previous application”. In other words, paragraph 34BB(2) provides that the later application is not a free-standing application calling for determination; rather it varies the original and undetermined application. There is nothing in the language of paragraph 34BB that says, or suggests, that the original application has been replaced or substituted and no longer needs to be determined.
The Court said that its interpretation of paragraph 322(1A) was consistent with section 3C of the Immigration Act 1971 and the case law dealing with that section. It also said that its interpretation was consistent with paragraph 34E of the Immigration Rules. It was clear to Lewis LJ that a change in the basis upon which variation of the existing leave is sought or a change from limited to indefinite leave to remain may constitute a variation of an earlier application as was apparent from paragraphs 37 to 39 of Richards LJ’s judgment in the JH (Zimbabwe) case. The decision in Khan was also consistent with the approach of treating a later application in such circumstances as a variation of the original application.
Khan was a case concerning rule 34E (in materially similar, but not identical, terms to the rule in force at the material time in this case). The decision was concerned with the date at which certain requirements must be met and held that it is the time at which a variation to an existing application is made. Paragraph 50 of the judgment in Khan recognises that the variation is treated “as if” it were a new application for those purposes. It was not seeking to characterise a second application in such circumstances as a “free standing” application that fell for determination. The guidance on which reliance was placed did not assist the court in determining the issue that arose in this case—even assuming it is admissible as an aid to interpretation of the rules. The reference in the guidance to “a previous application” was not addressed to the question of whether or not a later application is to be treated as a variation of an earlier application or as a separate and free-standing application.
Lewis LJ said that the interpretation of paragraph 322(1A) that he considered correct did not give rise to unexpected or unusual consequences such that it would be inconsistent with any rational policy and unlikely to be what the Immigration Rules were intended to mean. As his Lordship held at length:
43. … Rather, the purpose underlying paragraph 322(1A) is that people who apply to the Secretary of State for leave to remain are expected to be honest in their dealings with the Home Office. If they make an application, and even if they vary the basis on which they are seeking leave, they are expected to be honest throughout the application process. If an applicant has made false representations during the application process, whether at an earlier stage, or a later stage when varying the basis upon which leave to remain is sought, it is rational for the Secretary of State to adopt rules providing that the variation of the existing leave to remain should be refused. True it is, as Mr Malik submitted, the Secretary of State could have adopted a different policy and provided for discretionary rather than mandatory refusal in circumstances such as the present case. The fact that a different policy objective could have been adopted is not, however, a reason for giving paragraph 322(1A) a different meaning from that which emerges from a consideration of the language of paragraph 322(1A) viewed against the background, including the Immigration Rules as a whole and the function that paragraph 322(1A) is evidently meant to fulfil in the functioning of the policy.
Accordingly, the application in the present case was the one made in January 2013. The 2018 application involved a variation of that earlier application to change the duration of and basis upon which the variation of the existing leave to remain was sought. The 2013 application did not cease to exist and it was not replaced. It was not withdrawn and the application remained in place, albeit varied, and had to be determined. Lewis LJ decided that:
44. Consequently, the FTT was right to conclude that the 2013 application, although varied, was the one decided by the respondent on 28 May 2021. False representations were made in relation to that application at one stage of the application process and the application therefore had to be refused by virtue of paragraph 322(1A). The Upper Tribunal did not err in dismissing the appeal against the decision of the FTT. Ground 1 of the appeal fails.
Next, the Court of Appeal turned its attention to the remaining issue relating to paragraph 322(5). Mr Al-Azad’s case was that this vexing provision involved a two-stage balancing exercise in accordance with the decisions of in R (Balajigari) v SSHD [2019] EWCA Civ 673 (discussed here) and Yaseen v SSHD [2020] EWCA Civ 157 (discussed here).
In dismissing Mr Al-Azad’s appeal, the FTT considered the conduct in question but did not consider the positive factors in favour of Mr Al-Azad and did not ensure that a two-stage balancing exercise had been carried out. It was submitted that there were a number of factors that would be relevant to that exercise, including when the misconduct occurred (in the case, many years before the decision), the length of residence in the UK, the fact that residence was lawful, the period of absence from Bangladesh and any mental health issues. The FTT analysis at paragraph 90 of its decision, it was submitted, did not carry out that balancing exercise adequately.
The SSHD submitted that the FTT had carried out the relevant balancing exercise and its reasons, while brief, were adequate. The FTT was well aware of when the misconduct had occurred and that Mr Al-Azad had been lawfully in the UK for over 10 years (and he had been away from Bangladesh for that period) as the basis for seeking ILR was that he had 10 years’ continuous lawful residence in the UK. No mental health issues relevant to the balancing exercise had been identified before the FTT. In those circumstances, the SSHD submitted that the UT was correct to hold that the relevant two-stage balancing exercise had been performed by the FTT.
The Court of Appeal found that the application to vary the existing leave to remain had to be refused as the case fell within paragraph 322(1A). Therefore, it was not necessary to deal with the alternative possibility of a discretionary refusal under rule 322(5).
Lewis LJ stated that it was appropriate for the court to set out its conclusions on this issue since the point had been argued, and as that was an alternative basis for the decision of the SSHD in refusing ILR (and the FTT also dismissed the appeal on that basis).
It was accepted in the this case that a two-stage balancing exercise had to be carried out in the sense that Mr Al-Azad’s misconduct had to be weighed against any positive factors indicating that the variation of leave to remain should not be refused. It was not submitted by the SSHD that the misconduct was so extreme that on any view the balance must fall against Mr Al-Azad. Dismissing the appeal on the second ground, Lewis LJ held that:
49. The decision of the FTT needs to be considered in context. As the FTT said at paragraph 3 and 4 of its decision, the decision letter was detailed and that the parties were aware of it. Further, it is clear that the FTT knew that the misconduct occurred in 2013, and that the appellant had been lawfully in the United Kingdom (and absent from Bangladesh) for well over 10 years (indeed the basis upon which he sought indefinite leave to remain was 10 years continued lawful residence). There was no suggestion in the case put to the FTT that mental health issues were relevant to the balancing exercise. Rather the appeal to the Upper Tribunal on this issue related to whether the FTT had adequately dealt with the appellant as a witness because of his alleged vulnerabilities (and that is not a ground of appeal before this Court). In the circumstances of this case, therefore, the Upper Tribunal was entitled to find that the balancing exercise had been adequately performed. The FTT appreciated that the appellant had associated himself with community groups and good causes (and the details were set out in the decision letter) but considered that the appellant’s “knowing acquiescence in the making of false representations is a particularly serious matter” and was not outweighed by the positive factors.
The Court of Appeal’s conclusion was that paragraph 322(1A) applied to an application which has itself been varied by a subsequent application seeking to change the basis on which the variation of the existing leave to remain is sought.
It is that application, as varied, which is considered and determined by the SSHD. Lewis LJ explained further that where an applicant has made false representations in relation to that application, paragraph 322(1A) applies and the application must be refused. Further, the UT was entitled to find that paragraph 322(5) had been properly applied in the present case. For those reasons, Lewis LJ that the UT was correct to dismiss the appeal and he did the same and dismissed Mr Al-Azad’s appeal.
Comment
The Court of Appeal was reluctant to provide relief to Mr Al-Azad because of the fact that he admittedly made false representations in his 2013 application but then in 2018 decided to turn his existing application into an ILR application on the basis of 10 years’ continued lawful residence in the UK.
Lewis LJ did not agree with the point that the original application, as submitted on Mr Al-Azad’s behalf, “simply disappeared”. Despite this rather creative and seemingly ingenious point, this judgment conveys quite a clear message that any false representations made in a pending immigration application will not vanish or disappear by varying the application to an ILR application on the basis of 10 years’ continuous lawful residence. To allow that, of course, would be too generous to persons such as Mr Al-Azad and others in this cohort of persons would be incentivised to follow his tactics. Honesty is the best policy and now Mr Al-Azad must wish that he had been transparent in his dealings with the Home Office.
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