Al-Azad v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant applied on 17 January 2013 to vary his existing limited leave to remain in the United Kingdom, seeking leave as a Tier 1 (Entrepreneur) Migrant. While this application remained undecided, on 21 December 2018, the Appellant applied for indefinite leave to remain based on 10 years' continuous lawful residence. The Respondent refused the indefinite leave application, citing false representations made in the 2013 Entrepreneur application and relying on paragraph 322(1A) of the Immigration Rules, which mandates refusal in such cases, and alternatively on paragraph 322(5), which permits discretionary refusal based on conduct.

The Appellant appealed to the First-tier Tribunal (FTT), arguing that the false representations related only to the 2013 application and not the 2018 indefinite leave application, and thus paragraph 322(1A) did not mandate refusal of the latter. He also challenged the Respondent’s application of paragraph 322(5). The FTT dismissed the appeal, and the Upper Tribunal upheld that decision. The Appellant was granted permission to appeal to this Court on two grounds: the interpretation of paragraph 322(1A) and the alleged failure to conduct the required two-stage balancing exercise under paragraph 322(5).

Legal Issues Presented

1. Whether paragraph 322(1A) of the Immigration Rules applies to an application that has been varied by a subsequent application, such that false representations made in an original application mandate refusal of the varied application.
2. Whether the First-tier Tribunal erred in law by failing to conduct the two-stage balancing exercise required under paragraph 322(5) of the Immigration Rules when considering discretionary refusal.

Arguments of the Parties

Appellant's Arguments

• Paragraph 322(1A) applies only where false representations are made in relation to the specific application under consideration, not to previous or original applications.
• The later application for indefinite leave to remain replaced the earlier Tier 1 (Entrepreneur) application, which ceased to exist and thus did not require determination.
• Paragraph 322(1A) should not mandate refusal where false representations relate to a previous application; instead, the current application should be subject to discretionary refusal under paragraph 322(5).
• The FTT failed to conduct the proper two-stage balancing exercise under paragraph 322(5), neglecting relevant positive factors such as length of lawful residence and community involvement.

Respondent's Arguments

• The later application is legally a variation of the original application; thus, paragraph 322(1A) applies to the application as varied and mandates refusal if false representations were made at any stage.
• The FTT conducted the required two-stage balancing exercise adequately, considering both the misconduct and positive factors.
• The appeal is academic as the Appellant did not contest the finding that he failed to meet paragraph 276B(ii)(c) requirements, which independently disqualifies him from indefinite leave.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78	Interpretation of section 3C of the Immigration Act 1971 regarding extension and variation of leave applications.	Used to establish that a later application varies but does not replace an earlier application, which remains in existence and must be determined.
Khan v Secretary of State for the Home Department [2016] EWCA Civ 56	Requirement that variations to applications comply with rules as if they were new applications.	Supported the view that a variation is treated "as if" a new application but does not constitute a separate, free-standing application.
Mahad v Entry Clearance Officer [2009] UKSC 16	Principles of interpreting Immigration Rules sensibly and in context as administrative policy statements.	Guided the Court’s approach to construing paragraph 322(1A) in the context of the Immigration Rules as a whole.
R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673	Requirement for a two-stage balancing exercise under paragraph 322(5) of the Immigration Rules.	Referenced to assess whether the FTT properly conducted the balancing exercise regarding discretionary refusal.
Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157	Clarification of the balancing exercise under paragraph 322(5).	Used to confirm the adequacy of the FTT’s reasoning on discretionary refusal.
Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568	Guidance on treatment of false representations in previous applications affecting current applications.	Considered by Appellant but distinguished as not addressing whether later applications replace earlier ones.

Court's Reasoning and Analysis

The Court began by examining the statutory and regulatory framework, including section 3C of the Immigration Act 1971 and relevant Immigration Rules, to determine the legal status of multiple applications to vary leave. It concluded that where an applicant submits a subsequent application before a prior application is decided, the later application is treated as a variation of the earlier application rather than a new, separate application. The original application remains extant and must be decided as varied.

The Court analyzed paragraph 322(1A) of the Immigration Rules, which mandates refusal where false representations have been made "in relation to the application." Given that the later application is a variation of the original, the Court held that false representations made at any stage of the application process mandate refusal of the varied application. This interpretation was supported by the language of the rules, the statutory scheme, and relevant case law, including the Court of Appeal’s decisions in JH (Zimbabwe) and Khan.

The Court rejected the Appellant’s argument that the later application replaced the earlier one and that paragraph 322(1A) only applied to false representations made in the later application. It found that the Appellant’s interpretation was inconsistent with the statutory and regulatory framework and the function of the rules.

Regarding paragraph 322(5), which allows discretionary refusal based on conduct, the Court acknowledged that a two-stage balancing exercise is required. However, it found that the FTT had conducted this exercise adequately, considering the seriousness of the misconduct alongside positive factors such as lawful residence and community involvement. The Court noted no evidence of relevant mental health issues affecting the balancing.

The Court also noted that the appeal was academic in part because the Appellant did not contest the finding under paragraph 276B(ii)(c) that independently warranted refusal of indefinite leave.

Holding and Implications

The Court DISMISSED the appeal.

The holding confirms that where an application to vary leave to remain is subsequently varied by another application, the original application remains extant and is considered as varied. False representations made at any stage mandate refusal under paragraph 322(1A) of the Immigration Rules. Additionally, the Court affirmed that the First-tier Tribunal’s application of the discretionary refusal ground under paragraph 322(5) was proper and involved the required balancing exercise.

This decision clarifies the interpretation of multiple and varied applications under the Immigration Rules, emphasizing the mandatory refusal of leave where false representations have been made at any stage of the application process. The ruling has direct consequences for applicants seeking to vary leave multiple times and underscores the importance of honesty throughout the immigration application process. No new precedent beyond the application of established principles was set.