Secretary of State for the Home Department v Naveed Iqbal

Where a ground in paragraph 322 of the Immigration Rules states that leave “are to be refused”, refusal is mandatory once that ground is established. Paragraph 322 supplements the grounds for refusal in Parts 2 to 8 and applies to every application for leave to remain or variation of leave. It therefore applies to an application to extend leave as a spouse.

Substantive legitimate expectation requires an unambiguous promise or assurance by a public official on which the affected person has placed trust. Immigration applications governed by legislation and the Rules do not, without more, create such an expectation. A tribunal deciding a family-life claim must analyse the relevant provisions of Appendix FM and section 117B of the Nationality, Immigration and Asylum Act 2002.

The Secretary of State refused Mr Iqbal’s application for indefinite leave to remain as a work permit holder. He did not meet the work-permit requirements and had a recent conviction for selling tobacco to a person under 18.

Following a section 120 notice, Mr Iqbal advanced a claim for an extension of leave as the spouse of a settled person and relied on Article 8. The First-tier Tribunal allowed the appeal, holding that he met paragraph 284 of the Immigration Rules and that paragraph 322(1C) did not apply to the spouse application. It also relied on substantive legitimate expectation.

The central issue was whether paragraph 322(1C) applied to the application for variation of leave and whether the First-tier Tribunal’s alternative family-life analysis was lawful.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the case was remitted to a differently constituted First-tier Tribunal.

2. Paragraph 322 of the Immigration Rules supplements the refusal grounds in Parts 2 to 8. Its opening words, “in addition to”, mean that it operates whenever there is an application for leave to remain or variation of leave, including an application to extend leave as a spouse.

3. The wording “are to be refused” in paragraph 322(1C) is mandatory. It gives the decision maker no discretion once an applicable listed ground is established. This differs from paragraphs 322(2)–(11), which say leave should normally be refused, and paragraph 323, which provides that leave may be curtailed.

4. The respondent’s undisputed conviction engaged paragraph 322(1C)(iv). His application for a variation of leave therefore had to be refused. The First-tier Tribunal erred in holding that paragraph 322(1C) was confined to the abandoned work-permit application.

5. The First-tier Tribunal also erred by finding a substantive legitimate expectation. Applying Mehmood (Legitimate Expectation) [2014] UKUT 00469, the Tribunal held that such an expectation requires an unambiguous promise or assurance by a public official which the person trusts. The statutory and Rules-based framework governing the respondent’s applications supplied no such assurance. The alternative Article 8 analysis was further deficient because it did not examine Appendix FM or section 117B of the Nationality, Immigration and Asylum Act 2002 in detail.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision and remitted the case to a differently constituted First-tier Tribunal.
• First-tier Tribunal: Allowed the respondent’s appeal on the basis that he met paragraph 284 of the Immigration Rules, that paragraph 322(1C) did not apply to his spouse application, and that Article 8 supported the result.