MZ (Pakistan) v Secretary of State for the Home Department

Where leave to enter is cancelled under the Immigration Rules, the Secretary of State bears the burden of establishing the facts relied upon. The applicable version is the version in force at the relevant date. The change-of-circumstances and false-information grounds are distinct and must be considered separately. A change of college is not necessarily a change in circumstances. A credibility assessment should lead to clear findings of fact. Where a tribunal has made material errors of law, an appellate court should not decide the facts itself or refuse remittal merely because an adverse outcome appears likely. A fair judicial process requires reconsideration where a properly directed tribunal could lawfully reach a different result.

The appellant, a Pakistani student, challenged the cancellation of his leave to enter on return to the United Kingdom and the resulting refusal of entry. The AIT initially allowed his appeal on 7 March 2008, but ordered reconsideration. In October 2008, an Immigration Judge found an error of law in the earlier determination, reconsidered the evidence and dismissed the appeal. Before the Court of Appeal, the respondent accepted that the wrong burden of proof and the wrong version of Rule 321A had been applied, and that the two limbs of the rule had been confused. The central issue was whether the errors were immaterial because only one outcome was possible, or whether the case required full remittal.

The appeal was allowed and the case was remitted to the AIT for full reconsideration. All three members of the court agreed.

1. Applicable rule and burden of proof. The Secretary of State bore the burden of establishing the facts relied upon under Rule 321A. The court applied the principle stated in JC (Part 9 HC395 -- Burden of Proof) China [2007] UKAIT 00027. The version of the rule in force at the date of entry had to be applied. The Immigration Judge had instead applied a later amendment.
2. Separate grounds. The change-of-circumstances limb and the false-representation or non-disclosure limb were separate. They could not be elided. A false representation was not itself a change of circumstances. Applying GO-O & Ors v SSHD [2008] EWCA Civ 747, a student’s leave was granted in the capacity of a student, rather than as a student at a particular college. A change of college did not necessarily constitute a change of circumstances.
3. Findings of fact. The Immigration Judge considered inconsistencies and credibility but did not make sufficiently clear findings of fact. In particular, she did not clearly and rationally determine the composite issue whether the appellant was a bona fide student. A credibility assessment should ordinarily be followed by findings of fact, especially where the facts are disputed.
4. Materiality and remittal. The court considered the principles in CA v SSHD [2004] EWCA Civ 1165 and Shane Shrimpton v The Secretary of State [2005] EWCA Civ 1381. An appellate court may treat an error as immaterial only where the result must truly have been the same without it. Here, the cumulative errors left open the possibility of a different lawful outcome. The Court of Appeal was not the fact-finding tribunal and should not substitute its own view of the interview evidence.
5. Consequences. The errors in the burden of proof, the applicable rule, the separation of the rule’s limbs and the findings of fact meant that the appellant had not received the required judicial consideration. The entire case, including credibility and the facts, therefore required reconsideration.

1. Court of Appeal (Civil Division). Allowed the appeal and remitted the case to the AIT for full reconsideration, including the facts and credibility.
2. Asylum and Immigration Tribunal. An earlier AIT decision allowed the appellant’s appeal on 7 March 2008. Reconsideration was ordered. In October 2008, the AIT found an error of law in the earlier decision but dismissed the appeal after reconsidering the evidence.
3. Secretary of State. Refused entry on 20 January 2008 following cancellation of the appellant’s leave at the port.