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Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal


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Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal. Unsurprisingly.

A student was convicted for driving with excess alcohol and also for driving without due care and attention. He was made subject to a community order with an unpaid work requirement and a requirement to attend a drink-drive rehabilitation course. He failed to disclose this when he applied to extend his leave. His application was refused under paragraph 322(1A) of the Immigration Rules, which provides that an application must be refused:

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 applicant or in order to obtain documents from the Secretary of State or a third party required in support of the application …

The student tried and failed to convince a First-tier Tribunal judge that the failure to disclose was a genuine error. The student then appealed to the Upper Tribunal and was, unsurprisingly, refused permission. A Cart application for judicial review was made. That too fails:

The question before us, whether paragraph 322(1A) is ultra vires, could not have been raised in the FtT. Notwithstanding the attractive way Mr Malik put his submissions, I have concluded that the clear answer to that question is “no”.

Source: Sayaniya, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2016] EWCA Civ 85 (10 February 2016)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


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