Neshanthan (Cancellation or Revcation of ILR)

JurisdictionUK Non-devolved
JudgeUpper Tribunal Judge Gill
Judgment Date17 January 2017
Neutral Citation[2017] UKUT 77 (IAC)
Date17 January 2017
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2017] UKUT 77 (IAC)

THE IMMIGRATION ACTS

Upper Tribunal

(Immigration and Asylum Chamber)

Before

Upper Tribunal Judge Gill

Between
Kularatna Neshanthan (Anonymity Order Not Made)
Appellant
and
Immigration Officer, Heathrow Airport (Terminal 3)
Respondent
Representation:

For the Appellant: Mr. S Ahmed, of Counsel, instructed by Amirthan & Suresh Solicitors

For the Respondent: Mr. J Fletcher, of Counsel, instructed by the Government Legal Department.

Neshanthan (cancellation or revocation of ILR)

  • i) Article 13 of the Immigration (Leave to enter and Remain) Order 2000/1161 (the “2000 Order”) applies to holders of indefinite leave to remain (“ILR”) who travel to a country or territory outside the common travel area so that their ILR does not lapse but continues if Article 13(2)–(4) are satisfied.

  • ii) If the leave of such an individual continues pursuant to Article 13(2)–(4) of the 2000 Order, an immigration officer has power to cancel their ILR upon their arrival in the United Kingdom.

  • iii) The grounds upon which such leave may be cancelled are set out at para 321A of the Immigration Rules.

  • iv) Section 76 of the Nationality, Immigration and Asylum Act 2002 Act is an alternative and additional power, available to the Secretary of State, to revoke indefinite leave to enter or ILR in the circumstances described at s.76(1)–(3) of the 2002 Act.

DECISION AND REASONS
Introduction:
1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

I heard submissions on the second issue de bene esse.

8

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

Relevant background
9

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 was 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.

10

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 first issue
(i) Relevant legal framework
11

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.

12

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)).

13

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”.

14

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) 1 (whether as regards duration or conditions), shall be exercised by the Secretary of State…”.

15

Section 3(4) of the 1971 Act provides:

(4) A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.

16

No authority is needed for the proposition that leave 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:

“limited leave” and “indefinite leave” means respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration;”

17

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.

18

Article 13(10) of the Immigration (Leave to Enter 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.

13.–

  • (1) In this [article] 2 [article and article 13A] 3 [Part] 4leave” means–

    • (a) leave to enter the United Kingdom (including leave to enter conferred by means of an entry clearance under article 2); and

    • (b) leave to remain in the United Kingdom.

  • (2) Subject to paragraph (3), where a person has leave which is in force and which was:

    • (a) conferred by means of an entry clearance (other than a visit visa) under article 2; or

    • (b) given by an immigration officer or the Secretary of State for a period exceeding six months,

      such leave shall not lapse on his going to a country or territory outside the common travel area.

  • (3) Paragraph (2) shall not apply:

    • (a) where a limited leave has been varied by the Secretary of State; and

    • (b) following the variation the period of leave remaining is six months or less.

  • (4) Leave which does not lapse under paragraph (2) shall remain in force either...

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    ...reasons”. Mr Parkin in his grounds of 18 June 2020 relies upon two authorities being Neshanthan (cancellation or revocation of ILR) [2017] UKUT 00077 (IAC and Sapkota [2011] EWCA Civ As noted by the headnote of Upper Tribunal in Patel (consideration of Sapkota – unfairness) [2011] UKUT 0048......

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