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IJs should not raise mandatory refusals themselves

IJs should not raise mandatory refusals themselves

Many thanks to David Chirico for showing me this case (who I understand was in turn tipped off by Muhunthan Paramesvaran at Wilson and Co), and to Seema Farazi (of Doughty Street) for arguing it. Why it has not been reported, one can only speculate. A high-powered panel consisting of Dr Storey and Richard McKee held that it is not for Immigration Judges to start considering the mandatory grounds for refusal at paragraphs 320(7A) and (7B) unless they have been specifically relied on by the Home Office:

The respondent has not relied on the other grounds given at rule 320(7A), namely making false representations and submitting false documents.  We have considered whether these are matters which we could or should raise of our own motion.  True it is that in RM (Kwok On Tong : HC 395, para 320) India [2006] UKAIT 39 the Tribunal did say that where, on the facts as found in a particular case, any of the mandatory (as opposed to the discretionary) grounds of refusal in rule 320 were clearly made out, then the Tribunal ought to dismiss the appeal on that ground, even if it had not been raised by the respondent.  But RM (India) was decided at a time when rule 320 did not include the draconian subparagraphs (7A) and (7B).  Rather, the mandatory grounds were of a fairly uncontroversial nature, such as not holding a valid passport, or seeking to enter while still the subject of a deportation order.  In our view, given consequences as severe as a ten-year re-entry ban for infraction of paragraph 320(7A), it should be for the respondent and not for this Tribunal to raise any particular ground under that subparagraph.

It is unreported but can be found in the tribunal archive here.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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