Shyti v Secretary of State For The Home Department
[2023] EWCA Civ 770
MN Wohhab Al-Azad v Secretary of State for the Home Department
25 April 2024
[2024] EWCA Civ 407
Court of Appeal
Someone applied to stay in the UK in 2013, then again in 2018. The government found lies in the 2013 application. The court decided that even though the person changed their request in 2018, the lies in 2013 meant they couldn't stay, and the 2018 application was rejected. The court also confirmed that the decision-makers should carefully consider good and bad things about a person before refusing them permission to stay.
Key Facts
- •MN Wohhab Al-Azad applied to vary his leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant in 2013.
- •While this application was pending, he applied for indefinite leave to remain based on 10 years' continuous lawful residence in 2018.
- •The Home Office investigated the 2013 application as part of Operation Meeker, suspecting fraudulent activity.
- •The Home Office refused Al-Azad's 2018 application, citing false representations in the 2013 application under paragraph 322(1A) and 322(5) of the Immigration Rules.
- •Al-Azad appealed, arguing the false representations were unrelated to the 2018 application.
Legal Principles
Interpretation of paragraph 322(1A) of the Immigration Rules regarding false representations in varied applications.
Immigration Rules, Section 3C of the Immigration Act 1971, Case law (JH (Zimbabwe), Khan)
Two-stage balancing exercise under paragraph 322(5) of the Immigration Rules, weighing misconduct against positive factors.
Case law (Balajigari, Yaseen)
The principle of treating subsequent applications to vary leave as variations of the original application, not as separate applications.
Immigration Rules (paragraphs 34BB, 34E), Section 3C of the Immigration Act 1971
Outcomes
Appeal dismissed.
The Court of Appeal held that a subsequent application to vary leave is a variation of the original application. False representations made in the original application, even if the basis for the leave sought changed, trigger a mandatory refusal under paragraph 322(1A). The two-stage balancing exercise under paragraph 322(5) was deemed adequately performed by the FTT.
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