UTIAC i) An immigration officer has power to cancel a leave to remain which remains in force under article 13(5) of The Immigration (Leave to Enter) Order 2000 (SI 2000/1161).
ii) The provisions of that article are not unlawful for being ultra vires.
iii) A change of circumstances justifying cancellation exists where the basis for the grant of the leave has disappeared: SSHD v Boahen [2010] EWCA Civ 595 applied.
iv) It is possible that a change first occurring before and continuing after the grant of the leave may be ‘such a change in the circumstances of that person’s case since the leave was given that it should be cancelled’.
v) The powers of curtailment of leave to remain may overlap with the power to cancel leave.
vi) Where either power may be exercised it may be that the duty of fairness requires the leave to be curtailed rather than cancelled.
vii) It is material to whether fairness required curtailment rather than cancellation as to whether the change of circumstance was the responsibility of the claimant or not, and whether he had endeavoured to misrepresent the position during his examination.
viii) The jurisdiction to determine that a decision is not in accordance with the law because of a lack of fairness, is not to be degraded to a general judicial power to depart from the Rules where the judge thinks such a course appropriate, or to turn a mandatory factor into a discretionary one: fairness in this context is essentially procedural.
Judges:
Blake J, P
Citations:
[2012] UKUT 57 (IAC)
Links:
Statutes:
Immigration (Leave to Enter) Order 2000 (SI 2000/1161) 13(5)
Jurisdiction:
England and Wales
Citing:
Cited – Secretary of State for The Home Department v Boahen CA 28-May-2010
The SSHD appealed against an order finding that its officer had acted without power in cancelling a valid visitor’s visa once granted. The officer had decided that the visit was not for the purpose stated.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 05 October 2022; Ref: scu.451468