Mirza Muhammed Fiaz v The Secretary of State for the Home Department

Leave to remain which continues in force after departure may be cancelled on return where a material change has removed the factual basis on which it was granted. A change may first arise before grant and continue afterwards, provided it affects the position when leave is granted and thereafter.

Article 13(5) of the Immigration (Leave to Enter) Order 2000 lawfully treats such leave to remain as leave to enter for examination and cancellation purposes. Although curtailment and cancellation may overlap, common-law fairness is principally procedural. It does not create a general discretion to preserve leave where its original purpose has failed.

The appellant, a Pakistani national, had obtained leave to remain until December 2011 to study at St John’s College. After leaving the United Kingdom and returning, he told an immigration officer that he was still studying. Enquiries showed that he had not resumed his studies after obtaining leave and that the college would not retain his place. An immigration officer cancelled his leave.

The First-tier Tribunal dismissed his appeal. Its decision was set aside for material errors concerning the burden of proof and the timing of the asserted change of circumstances. The Upper Tribunal re-made the appeal. It considered whether there had been a qualifying change of circumstances, whether cancellation of continuing leave to remain was lawful, and whether fairness required curtailment rather than cancellation.

1. Appeal dismissed. The First-tier Tribunal’s decision was set aside for the previously identified errors of law, but the Upper Tribunal re-made the decision by dismissing the appeal.

2. Under rule 321A, the appellant’s voluntary failure after 9 February 2011 to notify the college of his restored leave and seek to resume study changed his suspension from involuntary to voluntary. The college’s subsequent refusal to retain or readmit him was a further material change. Either matter, and certainly both together, removed the entire basis on which leave had been granted: paras [16]–[20]. Applying SSHD v Boahen [2010] EWCA Civ 595, the relevant question was whether the factual basis of the authorised immigration purpose had been undermined.

3. A change which began before grant but continued after it can satisfy rule 321A where leave was granted for a particular purpose and that purpose had already disappeared by grant and remained absent. The rule must be read sensibly in its language and context: para [19].

4. Article 13(5) of the Immigration (Leave to Enter) Order 2000 validly treats continuing leave to remain as leave to enter on arrival for the purposes of Schedule 2 to the Immigration Act 1971. The ancillary cancellation power was a lawful incident of the new class of non-lapsing leave, not an unauthorised novel power: paras [22]–[29].

5. Curtailment and cancellation can overlap. Fairness may sometimes require curtailment, but it did not do so here. The purpose of leave had wholly collapsed through matters for which the appellant was responsible, and he had attempted to mislead the immigration officer. Fairness in this context is procedural; it cannot convert a mandatory cancellation ground into a general discretion to depart from the Rules: paras [30]–[34].

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for material errors of law. The Upper Tribunal re-made the decision and dismissed the appeal.
• First-tier Tribunal: Judge McIntosh dismissed the appeal on 9 June 2011.