MF (Pakistan) v Secretary of state For the home department

Where limited leave to remain for more than six months is preserved after a person leaves the common travel area, the returning person may be treated as holding leave to enter. An immigration officer may examine whether there has been such a change in circumstances that the leave should be cancelled. That treatment is incidental and supplemental to preserving the leave, rather than an additional restriction. Cancellation is not automatic. The decision-maker must consider whether the change is sufficient to justify cancellation. Failure to commence a sponsored course and the sponsor’s subsequent withdrawal may cumulatively remove the basis on which student leave was granted.

The appellant, a Pakistani national, held limited leave to remain as a student until 31 December 2011. After travelling to Pakistan, he returned to the United Kingdom during the period of leave. An immigration officer cancelled his leave under paragraph 321A of the Immigration Rules after finding that he had not attended the sponsored course, had misled the officer about his attendance, and no longer had the college’s sponsorship.

The First-tier Tribunal dismissed his appeal and found no breach of article 8. The Upper Tribunal upheld that decision. The Court of Appeal considered whether the statutory scheme authorised cancellation on return, whether choosing cancellation rather than variation was procedurally unfair, and whether there had been a material change in circumstances since leave was granted.

1. Appeal dismissed. The Court of Appeal found no basis for interfering with the Upper Tribunal’s conclusion.
2. Under section 3(4) of the Immigration Act 1971, leave normally lapses when its holder goes outside the common travel area, subject to the qualification concerning return without a requirement to obtain leave to enter. Article 13(2)(b) of the Immigration (Leave to Enter and Remain) Order 2000 preserved qualifying leave to remain for more than six months. Article 13(5) treated that leave, on return, as leave to enter granted before arrival.
3. Article 13(5) was incidental and supplemental to Article 13(2)(b), within the power conferred by section 3B of the Immigration Act 1971. It placed returnees with extant leave to remain in the same position as persons arriving with advance leave to enter. The resulting examination power under Schedule 2, paragraph 2A(2)(a), was lawful. Paragraphs 10 and 321A of the Immigration Rules were also validly applicable within the statutory scheme.
4. Cancellation was not an automatic consequence of a change in circumstances. Paragraph 321A required the immigration officer to consider whether there had been such a change that leave should be cancelled. On the facts, it was open to the Secretary of State to consider cancellation rather than variation, and that choice was not procedurally unfair merely because cancellation could have more serious consequences.
5. There had been a manifestly material change since the grant of leave. The appellant had not taken up the course for which leave was granted, had not informed the college of his absence, and the college had withdrawn its sponsorship. Those matters cumulatively removed the basis of the grant.

• Court of Appeal (Civil Division): Appeal from the Upper Tribunal (Immigration and Asylum Chamber), appeal no IA/14054/2011. Appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): On 5 November 2012 Sir Stephen Sedley granted permission to appeal. The Upper Tribunal had resolved the statutory-power, variation/cancellation and material-change grounds in favour of the Secretary of State.
• First-tier Tribunal: The appellant’s appeal against cancellation and removal was dismissed in a determination promulgated on 9 June 2011. The tribunal found a sufficient change of circumstances and no breach of article 8.