ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mr Justice Hamblen
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
LORD JUSTICE CHRISTOPHER CLARKE
| The Queen on the application of Sandip Narpatsinh Sayaniya
|- and -
|Upper Tribunal (Immigration and Asylum Chamber)
- and -
Secretary of State for the Home Department
The Respondent did not appear and was not represented
Andrew Sharland (instructed by Government Legal Department) for the Interested Party
Hearing date: 26 January 2016
Crown Copyright ©
Lord Justice Beatson:
"Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the applicant or in order to obtain documents from the Secretary of State or a third party required in support of the application …
Leave to remain or variation of leave to enter or remain in the United Kingdom are to be refused" (emphasis added).
The factual background:
The appeal to the Tribunal and the judicial review proceedings:
(i) Rules and Discretion
(ii) The applicability of the "non-fettering" principle to rules as to the practice to be followed in the administration of the Immigration Act 1971
"In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts "where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority." (emphasis in original)
He concluded (at ) that in that case the statutory context empowered the Authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the Act, and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality. I respectfully agree with this approach. It is also consistent with the approach in R (Elias) v Secretary of State for Defence to qualifying criteria formulated by the Secretary of State under a non-statutory ex gratia compensation scheme: see  EWHC 1435 (Admin),  IRLR 788 per Elias J at  –  and  EWCA Civ 1293,  1 WLR 3213 per Mummery LJ at , with whom Arden and Longmore LJJ agreed.
(ii) The effect of the power of the Secretary of State to grant discretionary leave to remain "outside the rules"
"[A] policy which has the safety net of a residual discretion cannot be described as a policy which binds the decision-maker to refuse to listen provided that the residual discretion is meaningful and not just an empty gesture."
He also stated that he was satisfied that the residual discretion:
"is not just false air and lives on in a meaningful and active way, and therefore while the paragraphs can properly be described as tendentious they do not amount to an illegitimate and impermissible fetter on the discretion of the Secretary of State".
Lord Justice Christopher Clarke
Lady Justice Arden