MN Wohhab Al-Azad v Secretary of State for the Home Department

Where a pending application to vary leave is later varied, the original application remains in existence in varied form. Paragraph 322(1A) therefore applies to false representations made at any stage of that application process and requires refusal, even where the later variation changes the basis or duration of leave sought. Under paragraph 322(5), misconduct must be weighed against positive factors, although brief reasons may suffice where the decision is read in context and shows that the balancing exercise was undertaken.

The appellant applied in 2013 to vary his limited leave as a Tier 1 (Entrepreneur) Migrant. While that application remained outstanding, he varied it in 2018 by seeking indefinite leave to remain on the basis of long residence. The Secretary of State refused the application under paragraph 322(1A), alternatively paragraph 322(5), and concluded that the requirements of paragraph 276B(ii)(c) were not met. The First-tier Tribunal dismissed the appeal and the Upper Tribunal dismissed an appeal against that decision. The Court of Appeal considered whether the later application replaced the earlier application and whether the First-tier Tribunal had adequately balanced the appellant’s misconduct against positive factors.

Lord Justice Lewis gave the leading judgment. Lady Justice Whipple and Lord Justice Baker agreed. The appeal was dismissed.

1. Application as varied. Under sections 3(1) and 3(3) of the Immigration Act 1971, limited leave may be varied, including by granting indefinite leave. Paragraphs 34BB(1) and (2) of the Immigration Rules provide that a later application made while an earlier application remains outstanding is treated as a variation of the earlier application. Paragraph 34E similarly treats a later request as a variation, although it must satisfy the rules as if it were a new application for the relevant purpose.
2. Section 3C and paragraph 322(1A). Section 3C of the Immigration Act 1971 contemplates one application for variation, which may subsequently be varied but remains in existence until determined or withdrawn. The approach was supported by JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 and Khan v Secretary of State for the Home Department [2016] EWCA Civ 56. The construction approach in Mahad v Entry Clearance Officer [2009] UKSC 16 was applied. The 2018 application therefore remained the 2013 application as varied. False representations made during that process engaged paragraph 322(1A), making refusal mandatory.
3. Paragraph 322(5). Although it was unnecessary to decide the alternative ground, the court accepted that the decision-maker must weigh the misconduct against positive factors indicating that leave should not be refused. The misconduct was not said to be so extreme that the outcome was inevitable. In context, the First-tier Tribunal knew when the misconduct occurred, appreciated the appellant’s long lawful residence and considered his community involvement. It was entitled to conclude that his knowing involvement in false representations was not outweighed by those factors.
4. Respondent’s notice. It was unnecessary to determine the unchallenged finding concerning paragraph 276B(ii)(c), or the application to amend, because mandatory refusal under paragraph 322(1A) independently disposed of the appeal.

1. Court of Appeal (Civil Division): Appeal dismissed under [2024] EWCA Civ 407.
2. Upper Tribunal (Immigration and Asylum Chamber): Appeal against the First-tier Tribunal decision dismissed.
3. First-tier Tribunal: Appeal against the Secretary of State’s refusal dismissed.