Abbas Khaliq v An Immigration Officer, Gatwick

Entry clearance which takes effect as leave to enter under the Immigration (Leave to Enter and Remain) Order 2000 means that its holder does not, on arrival, seek leave to enter. The holder is instead examined as a person who already has leave.

Accordingly, paragraph 321 does not apply. Paragraph 321A may permit cancellation only where its specified grounds are established in connection with the application for entry clearance, which is the relevant application for leave. False statements or documents discovered solely during examination at the port cannot of themselves satisfy paragraph 321A(2).

The appellant, a Pakistani national, arrived with student entry clearance obtained through an acceptance letter from a college. At Gatwick he admitted that he had bought an English-language certificate and demonstrated very limited English. The Immigration Officer cancelled his visa and refused entry under paragraph 321A of the Immigration Rules.

The First-tier Tribunal dismissed his appeal. It found that he had made false representations at the port and reasoned that his arrival involved an application for leave to enter. The appellant appealed to the Upper Tribunal, contending that there was no evidential basis for finding dishonesty in obtaining entry clearance and that the relevant application was not made at the port.

1. Appeal allowed. The First-tier Tribunal erred in treating the appellant's arrival and examination at Gatwick as an application for leave to enter.

2. Under regulation 4(3) of the Immigration (Leave to Enter and Remain) Order 2000, qualifying entry clearance takes effect as leave to enter granted before arrival. Section 3A and Schedule 2 to the Immigration Act 1971 confirm that the holder is examined as a person with extant leave. He therefore does not seek leave at the port. Paragraph 321 of the Immigration Rules does not govern such a person.

3. Paragraph 321A was the potentially applicable cancellation provision. Its reference to false representations, false documents or non-disclosure in relation to an application for leave concerned this appellant's application for entry clearance. Conduct during his port examination could not itself amount to an application for leave or establish that ground.

4. There was no evidence that the appellant had supplied the false English certificate to the Entry Clearance Officer. Nor was there evidence that he gave it to the college in order to obtain the acceptance letter, although that might have engaged paragraph 321A because the letter was essential to the entry-clearance application. The finding that he must have done so was unsupported by evidence.

5. The alleged failure to disclose his brother's overstaying status was not pursued. The Tribunal considered it difficult to see how that status could be material to the appellant's compliance with the Immigration Rules. Paragraph 321A therefore did not apply. The entry clearance remained valid and effective as leave to enter until expiry, subject to its endorsed conditions.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal and held that the entry clearance remained effective as leave to enter.
• First-tier Tribunal: Immigration Judge Agnew dismissed the appellant's appeal against the Immigration Officer's cancellation of entry clearance and refusal of leave to enter.