Kularatna Neshanthan v Immigration Officer, Heathrow Airport (Terminal 3)

Article 13 of the Immigration (Leave to Enter and Remain) Order 2000/1161 applies to indefinite leave to remain. Where such leave remains in force after travel outside the common travel area under article 13(2)–(4), article 13(5) treats it on arrival as leave to enter granted before arrival. The holder may therefore be examined under Schedule 2 to the Immigration Act 1971, and an immigration officer may cancel the leave on a ground in paragraph 321A of the Immigration Rules.

Section 76 of the Nationality, Immigration and Asylum Act 2002 supplies a separate discretionary power for the Secretary of State to revoke indefinite leave in its specified circumstances. It does not exclude cancellation at the port under article 13 and the Rules.

The appellant, a Sri Lankan national, held indefinite leave to remain granted in February 2014. After returning from Sri Lanka in September 2014, he was examined at Heathrow and his leave was cancelled under paragraph 321A of the Immigration Rules. The respondent considered that an English-language certificate used in an earlier student application had been obtained fraudulently.

The First-tier Tribunal dismissed his appeal. It found that his port interview reliably recorded his admission that he had not taken the TOEIC test, and that a medical certificate relied on to retract that admission was unreliable. Permission to appeal was granted only on whether an immigration officer could cancel indefinite leave to remain at the port. The appellant also sought to renew his challenge to the finding of deception.

1. The appeal was dismissed. The First-tier Tribunal made no error of law in holding that the immigration officer could cancel the appellant’s indefinite leave to remain on arrival.

2. Section 3(4) of the Immigration Act 1971 is not confined to limited leave. Article 13 of the Immigration (Leave to Enter and Remain) Order 2000/1161 consequently applies to indefinite leave. Leave which remains in force under article 13(2)–(4) is, by article 13(5), treated on arrival as leave to enter granted before arrival. The holder may be examined under paragraph 2A of Schedule 2, and the immigration officer may cancel that leave.

3. Paragraph 321A of the Immigration Rules applies to continuing indefinite leave as well as leave derived from entry clearance. Its express reference to settled persons in paragraph 321A(3), and article 13(4)'s express provision for unlimited leave, precluded the appellant’s narrower construction. The returning-resident rule did not preserve leave; it addressed admission for settlement.

4. Section 76 of the Nationality, Immigration and Asylum Act 2002 was an alternative and additional power exercisable by the Secretary of State in the circumstances specified there. It was unavailable on the facts and did not displace cancellation under article 13 and paragraph 321A.

5. The renewed challenge to the deception finding was refused. Even if the Tribunal had power to reconsider the earlier refusal of permission, the grounds were unarguable. A reliable admission that a proxy took the test was clear, compelling and conclusive evidence of deception. It could discharge both the evidential and legal burdens on the balance of probabilities despite alleged shortcomings in generic ETS material.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed. The First-tier Tribunal’s decision involved no error of law.

• First-tier Tribunal: Judge Afako dismissed the appellant’s appeal against the cancellation of his indefinite leave to remain, in a decision promulgated on 1 December 2015.