Court of Appeal hands down judgement in immigration appeal concerning the fraudulent representations in applications for leave to remain.

26/04/2024

The Court of Appeal handed down judgement on 25 April in the case Al-Azad v Secretary of State for the Home Department [2024] EWCA Civ 407 finding that an application for leave to remain which contained a fraudulent representation should be automatically refused even though the application had been varied before it was decided.  The case concerned the interpretation rule 322(1A) of the Immigration Rules and will have a wide-ranging impact on how applications which contain fraudulent misrepresentations will be considered by the Secretary of State and Tribunals.

The Appellant had made an application for leave to remain as an entrepreneur using the services of a firm which was later found to have fabricated businesses in order assist its clients in obtaining leave to remain. The Appellant was found to have knowingly participated in the false representation. While an investigation into the firm was taking place, the Appellant varied his application to one based on 10 year’s lawful residence in the UK. He argued that the mandatory refusal powers could not apply to his case because the application which contained the fraud had been replaced by the new application.

Lewis LJ, with whom Baker LJ and Whipple LJ agreed, held that the Secretary of State had been entitled to use the mandatory refusal grounds because the fraudulent application, though varied, remained before the decision-maker:

The original application remains in existence, albeit that the basis upon which leave to remain is sought has changed. It is that application, as varied, which is considered and determined by the Secretary of State. Put simply, the original application does not, as Mr Malik submitted “simply disappear”. It is not replaced by the later application. It is not withdrawn. It remains in existence albeit in varied form. If false representations are made in relation to that application (i.e. that application as originally made and then as varied), rule 322(1A) requires that the variation of leave be refused.

Émilie Pottle was instructed by the Secretary of State. Zane Malik KC and George Mavrantonis appeared for the Appellant.