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Discretionary and mandatory general grounds for refusal

Discretionary and mandatory general grounds for refusal

In the rather odd recently reported case of Iqbal (Para 322 Immigration Rules) [2015] UKUT 434 (IAC) the President makes the point that some of the general grounds for refusal are mandatory (“shall be refused”) and some are discretionary (“should normally be refused” or “may be curtailed”). This is such basic immigration law it is a bit alarming to see a reported Presidential determination apparently devoted to it. The other point made is that the words “legitimate expectation” should not lightly be bandied about. The First-tier judge in this case had rather unwisely used the words but from the context clearly did not intend to invoke the legal principle.

The official headnote:

(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.

(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.

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

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