Sayaniya, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors

Immigration Rules made under the statutory scheme of the Immigration Act 1971 do not become ultra vires merely because they prescribe mandatory grounds for refusing leave. Their statutory context and parliamentary scrutiny distinguish them from ordinary administrative policies to which the principle against fettering discretion applies in its conventional form.

A mandatory refusal rule remains lawful where the Secretary of State retains a meaningful discretion to grant leave outside the Rules. There is no principled distinction for this purpose between mandatory positive eligibility requirements and mandatory grounds of disqualification.

The appellant applied for further leave to remain as a Tier 4 student but failed to disclose a recent driving conviction. The Secretary of State refused his application under paragraph 322(1A) of the Immigration Rules, which requires refusal where material facts have not been disclosed.

The First-tier Tribunal rejected the appellant’s explanation for the non-disclosure and dismissed his appeal. The Upper Tribunal refused permission to appeal. Hamblen J then refused permission to seek judicial review.

On appeal from that refusal, the sole issue was whether paragraph 322(1A) was ultra vires because its mandatory language unlawfully fettered the broad discretion conferred on the Secretary of State by section 3(1) of the Immigration Act 1971.

1. Appeal dismissed. Paragraph 322(1A) of the Immigration Rules was not ultra vires. The Rules are made under an express statutory scheme in the Immigration Act 1971. The conventional principle against fettering discretion therefore does not apply to them in the same manner as it applies to policies made in materially different statutory contexts.

2. Sections 1(4) and 3(2) contemplate rules governing the administration of immigration control and require those rules and their amendments to be laid before Parliament. Although Immigration Rules are neither statutes nor statutory instruments, they are more than ordinary policy and have acquired a status akin to law for particular purposes. Their mandatory character alone does not make them unlawful.

3. The court rejected a distinction between mandatory conditions which state when leave must be granted and mandatory grounds which state when leave must be refused. A prohibition against false representations or non-disclosure could lawfully be restated as a positive condition in every immigration category. Its validity could not sensibly depend upon that drafting choice.

4. The power to formulate Immigration Rules remains executive and is subject to appropriate public law controls. A rule or its operation may therefore be challenged for error of law, irrationality or disproportionality. Those controls do not, however, establish that every mandatory rule unlawfully abdicates the statutory discretion.

5. In any event, the Secretary of State retained a residual discretion to grant leave outside the Rules. A mandatory rule does not impermissibly fetter discretion where that safety net is meaningful rather than illusory. Although the practical operation of the outside-the-Rules discretion was unclear where an application was decided after existing leave and the relevant grace period had expired, the appellant had not sought reconsideration on that basis. The court would not assume that the Secretary of State would unlawfully regard herself as precluded from considering an appropriate application outside the Rules. Any such refusal could be challenged.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the refusal of permission to seek judicial review: [2016] EWCA Civ 85 .
2. High Court, Administrative Court: Hamblen J refused permission to apply for judicial review on the papers.
3. Upper Tribunal: Refused permission to appeal from the First-tier Tribunal.
4. First-tier Tribunal: Rejected the appellant’s explanation for failing to disclose his conviction and dismissed his immigration and article 8 appeal.