Secretary of State for the Home Department v Boahen

A compliant multiple-entry visitor visa operates as advance leave to enter for authorised purposes. Where its holder arrives with deemed leave to enter but seeks entry for a different purpose, the immigration officer must first cancel that leave under the applicable cancellation powers. Only then can refusal under paragraph 320(5) of the Immigration Rules (HC 395) arise. A change of circumstances under paragraph 321A(1) does not require proof of a permanent change or permanent intention never to make an authorised visit. The officer must assess all the circumstances, including whether the visa would have been issued had the development been known and whether continued reliance on it is appropriate for immigration control.

The respondent, a Ghanaian national, held a multiple-entry visitor visa valid from 26 January 2008 to 26 January 2010. After overstaying on an earlier visit, he returned to the United Kingdom and said that he intended to care for his uncle’s children in return for money and accommodation. The immigration officer cancelled his deemed leave to enter for change of circumstances and refused leave under paragraph 320(5) because he lacked entry clearance for the purpose of employment.

The Administrative Court quashed the cancellation but upheld the refusal of leave to enter. The Secretary of State appealed on the effect of a multiple-entry visa, the interaction between cancellation and refusal powers, and the meaning of change of circumstances.

The appeal was allowed. Lord Justice Pitchford gave the judgment, with which Lord Justice Thomas and Lord Justice Mummery agreed. No further order was made because subsequent events meant that the decision could not affect the respondent’s status.

1. A qualifying multiple-entry visit visa operates under the Immigration (Leave to Enter and Remain) Order 2000 as advance leave to enter on an unlimited number of occasions during its validity, for the limited period applicable to each arrival and subject to endorsed conditions.
2. On arrival of a person who already has deemed leave to enter, the immigration officer’s power, where the person seeks entry for a purpose different from that specified in the visa, is a power to cancel leave under paragraph 2A(2A) and paragraph 2A(8) of Schedule 2 to the Immigration Act 1971. Cancellation may also be based on change of circumstances under paragraph 2A(2)(a) and paragraph 2A(8), read with paragraph 321A(1) of the Immigration Rules (HC 395).
3. Paragraph 320(5) does not provide a free-standing power to refuse leave to enter while deemed leave remains in force. It applies only once the existing leave has been cancelled. Cancellation is treated as refusal only for the purposes of the appeal provisions in Part 5 of the Nationality, Immigration and Asylum Act 2002; the two decisions are otherwise distinct.
4. For a person with current entry clearance which does not itself operate as leave to enter, the officer must first consider whether the purpose of entry is authorised. If it is not, refusal under paragraph 320(5) is required. If it is authorised, refusal is permitted only on the grounds in paragraph 321.
5. “Change of circumstances” in paragraph 321A(1) does not require permanence or proof that the holder will never make an authorised visit. The officer must assess the probable effect of the changed circumstances on the original entry-clearance decision and all relevant circumstances, including any continuing legitimate purpose and the requirements of proper immigration control. The use of an existing visa for an unauthorised purpose is potentially serious.
6. The Border Force guidance was wrong to treat cancellation and refusal as synonymous or to assume a refusal power based on change of circumstances. It correctly distinguished cancellation for change of purpose from cancellation for change of circumstances.
7. On the facts, the cancellation decision was not flawed on public-law grounds. The prior overstay, the intended unauthorised purpose and the changed relationship between the respondent and his uncle supported the officer’s conclusion. The refusal under paragraph 320(5) therefore stood.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and made no further order.
• Administrative Court: HHJ Collins, sitting in the Administrative Court, quashed the cancellation of the visa but declined to quash the refusal of leave to enter.