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Mandatory refusals and contriving to frustrate

Mandatory refusals and contriving to frustrate

I’ve just come across an interesting little judgment on mandatory refusal cases. It is only a permission decision so it has limited precedent value, but it is worth highlighting.

The case is SA (Pakistan) v SSHD [2009] EWCA Civ 1510 and concerns the mandatory refusal grounds set out at Immigration Rule 322. Permission was previously granted on the papers on some other tantalisingly unspecified grounds, which from the context may well be very interesting. This judgment was in respect of the grounds on which permission had been refused. In the course of giving judgment Sir David Keene comments as follows:

6. I will deal with these arguments in respect of SA and PB before I turn to the rather different case of NB. It is right that this particular provision of the Immigration Rules is expressed in mandatory terms. So, of course, are many other parts of the Immigration Rules, such as those requiring a valid entry clearance if the person is to be allowed to enter under various provisions: see, for example, paragraph 245B.

7. Such provisions are not ultra vires the Home Secretary’s power under section 3(2) of the 1971 Act because the rules are, as that subsection states, statements of the rules as to the practice to be followed in administering the 1971 Act. The Secretary of State retains, as Mr Malik recognises, a discretion to grant leave to enter or leave to remain outside the rules. That is clear from two divisional court cases, R v SSHD ex parte Rajinder Kaur & Ors [1987] Imm AR 278 and R v SSHD ex parte Ounejma [1989] Imm AR 75, both of which dealt with the provision requiring refusal of leave to enter if there was no entry clearance. In the former Glidewell LJ and Schiemann J, as he then was, held that such a mandatory rule was intra vires, the Secretary of State retaining a discretion. The same approach was adopted in the latter case. I can see no prospect of persuading the Court of Appeal that paragraph 322(1A) is ultra vires. Of course there is some force in what Mr Malik says about the approach which one should adopt towards the interpretation of the Immigration Rules. They are to be interpreted sensibly and not as strictly as one would when construing a statute. See for example R v IAT ex parte Alexander [1982] 1 WLR 1076 at 1080.

8. That would entitle, in my view, an immigration judge to regard a trivial and innocent mistake in an application form as falling outside the terms of this provision. To that limited extent, I accept the point made by Mr Malik about a flexible interpretation but only to that extent. It would not apply simply because an error was made innocently if that error was nonetheless a serious one. It cannot avail these two applicants, even were there errors to be regarded as innocent ones. The misinformation provided in these two cases was very far from trivial…

I have acted in a few judicial review applications recently where Immigration Rules 320(7A) and then 320(7B) have been used to refuse applicants who have made arguably trivial mistakes in completing their visa application forms. All of the cases have been promptly settled so far, but if one eventually makes its way to court this (and perhaps the full judgment on the unknown grounds on which permission had already been granted) will be a useful bit of authority.

While on the subject, new guidance to ECOs has recently come out on the meaning of ‘contriving to frustrate’ the intentions of the rules. A much clearer spin seems to be given to the need for there to be aggravating circumstances in order to justify refusal, which is to be welcomed. Some of the said circumstances are comparatively trivial, though, while some are more obviously aggravating.

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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