Boahen, R (on the application of) v Secretary of State for the Home Department

Cancellation of entry clearance under paragraph 321A of the Immigration Rules (HC395) requires a material change of circumstances since leave was granted which justifies cancellation. The fact that a person seeks entry for a purpose outside the existing visa does not, by itself, justify cancellation. The decision-maker must be satisfied that the person has a permanent intention not to use the visa for proper visits, but only for visits breaching the conditions, such as employment. A previous breach of a visit condition or overstaying may justify refusal of leave to enter, but does not alone justify cancellation of the visa. The cancellation decision must be assessed on the reasons actually given.

The claimant, a Ghanaian national, held a multi-entry visit visa valid until January 2010. He had previously overstayed the permitted 180-day period and returned to the United Kingdom in November 2008 seeking to visit and assist his uncle.

An immigration officer refused him leave to enter and purported to cancel his visa, initially relying on paragraph 321(i) of the Immigration Rules (HC395). A further notice relied on paragraph 321A(1), asserting a change of circumstances because the claimant intended to care for his uncle’s children in return for money and accommodation and had previously overstayed. The central issues were whether the visa had lawfully been cancelled and whether the refusal of leave to enter was lawful.

1. The initial cancellation notice was invalid insofar as it relied on paragraph 321(i), which did not govern cancellation. Paragraph 321A was the relevant provision.

2. Under paragraph 321A, the fact that an intended entry is for a purpose not covered by the existing visa does not, without more, establish a sufficient change of circumstances. Cancellation requires material showing that the visa-holder has a permanent desire or intention not to use the visit visa for proper visits, but only for visits which would breach the visit conditions.

3. A previous breach of a condition, including overstaying, does not by itself justify cancellation under paragraph 321A. It may, however, justify refusal of leave to enter where the immigration officer is not satisfied that the person intends to enter only for the permitted purpose and period.

4. The court had to take the reasons in the second notice at face value. Those reasons did not establish the necessary basis for cancellation, although the material relied on could have supported a lawful refusal of leave to enter.

5. The decision cancelling the visa was quashed. The refusal of leave to enter was not disturbed. The claim therefore succeeded only to that extent. The claimant was required to leave the United Kingdom, and there was no order as to costs.

First-instance judicial review in the Administrative Court. No earlier court decision is stated in the judgment.