Sultana and Others (Rules: Waiver/Further Enquiry; Discretion): UTIAC 12 Nov 2014

(1) Paragraph [D] of Appendix FM-SE is an example, within the context of the requirement to supply specified evidence, of the increasing influence of discretionary powers of waiver and further enquiry in the Immigration Rules.
(2) Where applicants wish to invoke any discretion of this kind, they should do so when making the relevant application, highlighting the specific provision of the Rules invoked and the grounds upon which the exercise of discretion is requested.
(3) Where any request of this kind is made and refused, a brief explanation should be provided by the decision maker.
(4) A refusal to exercise a discretionary power as described in (1) above may render an immigration decision not in accordance with the law, under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002.
(5) Powers of waiver are dispensing provisions, designed to ensure that applications suffering from certain minor defects or omissions can be readily remedied.
(6) The hierarchical distinction between the Immigration Rules and Immigration Directorate Instructions (‘IDIs’) must be observed at all times.
(7) A failure to recognise, or give effect to, an IDI may render an immigration decision not in accordance with the law.


[2014] UKUT 540 (IAC)




England and Wales


Updated: 04 July 2022; Ref: scu.543192