In Al-Azad v Secretary of State for the Home Department [2024] EWCA Civ 407 the Court of Appeal has said that paragraph 322(1A) of the immigration rules (mandatory ground for refusal where false representations are used) applies to an application which has been varied by a later application in which false representations were not used.

This case concerns the general grounds for refusal that were in paragraph 322 of the immigration rules (they have since been redrafted and renumbered).

Background

The appellant entered the UK as a student on 16 February 2009 and renewed his leave in various routes, lastly as a Tier 1 highly skilled person with leave valid until 20 January 2013. He applied to switch to the Tier 1 (Entrepreneur) route on 17 January 2013. On 21 December 2018 (not a typo) the application was still outstanding and so he applied for indefinite leave to remain on the basis that he had accrued 10 years’ lawful residence.

The delay in making a decision on his application may have been because the Home Office was investigating the appellant’s immigration advisers, “Immigration4U”. Individuals connected with that organisation were convicted of fraud in November 2018. The Home Office doubted that the business investment relied on by the appellant in his Tier 1 (Entrepreneur) application was genuine, and also doubted whether transactions listed in the accounts were genuine.

The application for indefinite leave to remain was refused on 28 May 2021 on the grounds that the appellant had made false representations in his Tier 1 (Entrepreneur) application and he was not engaged in a genuine business. The application was refused under paragraph 322(1A), a mandatory ground for refusal where false representations or documents were submitted. The refusal letter said that false representations had been made in the Tier 1 application “which has been varied to your current application”.

The decision letter also said that refusal was also justified under paragraph 322(5), a discretionary ground for refusal based on character or conduct. The letter also said that the character and conduct requirement in the long residence rules (paragraph 276B(ii)(c) as it then was) was not met.

The appellant appealed on the basis that any false representations had been made in connection with the previous application for leave to remain in the Tier 1 (Entrepreneur) route and not in the application for indefinite leave to remain which was the subject of the decision under challenge. He argued that paragraph 322(1A) did not apply in those circumstances. He also said that any reliance on paragraph 322(5) for his indefinite leave application because of his conduct was flawed.

The appeals

The First-tier Tribunal dismissed his appeal, holding that as the original application had been varied it was right to say that the false representations had been made in the context of “the application”. The tribunal also upheld the refusals on character and conduct grounds. The Upper Tribunal also dismissed the appeal.

The appellant was granted permission to appeal to the Court of Appeal on two grounds:

(1) The FTT had misconstrued paragraph 322(1A) of the Immigration Rules. The Upper Tribunal’s conclusion that there was no material error in the FTT’s decision was, therefore, wrong in law; and

(2) The FTT had erred in law in failing to conduct the two-stage balancing exercise required under paragraph 322(5) of the Immigration Rules. The Upper Tribunal’s conclusion that there was no such error in the FTT’s decision was, therefore, wrong in law.

In support of the first ground of appeal, it was argued on behalf of the appellant that there was a difference in law between an original application and a subsequent application, the latter meaning that the first application no longer exists. It would then follow that refusal on the grounds of false representations could not apply to the later application. The appellant relied on to paragraph 34E of the rules as was in force at the time, which referred to the variation being treated as a new application.

The Court of Appeal rejected these arguments, stating that:

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.

Paragraph 33

The second ground of appeal was also dismissed, the Court of Appeal holding that the First-tier Tribunal had carried out an appropriate balancing exercise and had considered that the factors in the appellant’s favour did not outweigh those against him.

Conclusion

The court also referred to section 3C of the Immigration Act 1971 in making its decision (at paragraph 38) and so even though this case relates largely to immigration rules that have been replaced, it seems that the principle can be applied to other applications, albeit that I can’t imagine there are too many of these situations.