SA (Pakistan) & Ors v Secretary of State for the Home Department

Under paragraph 322(1A) of the Immigration Rules, deliberate deceit is not required. An unwittingly inaccurate representation or document may require refusal, subject to a sensible construction excluding a trivial innocent mistake. A serious inaccuracy remains within the rule even if innocent. The mandatory wording is intra vires section 3(2) of the Immigration Act 1971 because the Secretary of State retains a discretion to grant leave outside the Rules. A work permit tied to a named employer ceases to support entry when that employment ends.

These were three renewed applications for permission to appeal from decisions of the Asylum and Immigration Tribunal. Sir Richard Buxton had refused permission on the grounds renewed before the Court, although permission had been granted on another ground common to all three cases.

SA and PB challenged the meaning and vires of paragraph 322(1A) of the Immigration Rules after inaccurate statements about criminal convictions. NB challenged cancellation of his work-related immigration permission after his employment with the named employer ended. The central issues were whether paragraph 322(1A) required refusal despite innocent inaccuracy, whether its mandatory wording was lawful, and whether the immigration judge’s discretion could affect NB’s case.

1. Outcome. The renewed applications for permission to appeal were refused. There was no realistic prospect of a successful appeal by SA or PB on the paragraph 322(1A) issue, and NB’s challenge could not succeed.
2. Meaning of paragraph 322(1A). The word false does not require deliberate or intentional deceit. The provision expressly applies whether or not the applicant knew of the inaccuracy. Unwittingly inaccurate information can therefore require refusal of leave under the Immigration Rules.
3. Lawfulness and sensible interpretation. The mandatory wording was not ultra vires section 3(2) of the Immigration Act 1971. The Rules state the practice to be followed in administering the Act, while the Secretary of State retains a discretion to grant leave outside the Rules. Applying the approach in R v SSHD ex parte Rajinder Kaur & Ors [1987] Imm AR 278 and R v SSHD ex parte Ounejma [1989] Imm AR 75, the court rejected the vires argument.
4. The Rules should be interpreted sensibly and less strictly than a statute, consistently with R v IAT ex parte Alexander [1982] 1 WLR 1076. An immigration judge may treat a trivial and innocent mistake as falling outside paragraph 322(1A). That qualification does not assist where the error is serious. Statements about criminal convictions were plainly serious, including the statement concerning PB’s husband’s conviction because he would remain in the United Kingdom if her application succeeded.
5. NB’s work permit. A work permit granted for a named employer was employer-specific. The termination of that employment was a material change of circumstances, so NB could no longer satisfy the work-permit condition or seek entry on that basis. Although the relevant provisions conferred a discretion and the first immigration judge probably failed to exercise it, the outcome could not have been different. The Senior Immigration Judge’s conclusion was therefore correct.

1. Court of Appeal (Civil Division). In [2009] EWCA Civ 1510, the court refused the renewed applications for permission to appeal on the grounds considered.
2. Asylum and Immigration Tribunal. The applications arose from decisions in AIT Nos IA/02932/2009, IA/18767/2008 and IA/15715/2008. In NB’s case, the Senior Immigration Judge concluded that any failure to exercise the relevant discretion could not have affected the result.