The decision

CA (Date of decision – Evidence) Nigeria [2004] UKIAT 00243


Date of Hearing: 25 May 2004
Date Determination notified:
1 September 2004


Mr C M G Ockelton (Deputy President)
Mr K Drabu (Vice President)
Mr C P Mather (Vice President)




Immigration Officer, Heathrow

For the Appellant: Miss M Bhamra, instructed by Chase Christopher
Roberts & Co
For the Respondent: Mr J McGirr, Home Office Presenting Offficer

Paragraph 321A(5) of HC 395 imports a discretion and section 84(1)(f) of the 2002 Act therefore applies to it. Section 85(5) of the 2002 Act entitles and requires the Adjudicator to consider evidence arising after the date of the decision in assessing the position at the date of the decision.


1. The Appellant is a citizen of Nigeria who has been in this country as a student. He was granted entry clearance as a student on 12 September 2002. That entry clearance took effect under section 3A(3) of the 1971 Act and Part II of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) as leave to enter the United Kingdom.

2. On the Appellant’s last arrival in the United Kingdom, on 10 June 2003, it duly took effect as leave to enter. When he passed through customs his luggage was examined and it was found to contain a number of Nigerian passports, one of which was forged. This was reported to the Immigration Officer, who, with the authority of a Chief Immigration Officer, decided to cancel the Appellant’s leave to enter. That decision was expressly taken by reference only to the forged passport, not the other passports which the Appellant was carrying. The notice of decision is dated 11 July 2003 and is headed “Notice of Refusal of Leave to Enter”. The substantive part of it is in the following terms:

“On 12 September 2002 you were given entry clearance which has effect as leave to enter the United Kingdom on 10 June 2003. However, you were subsequently found in possession of a forged passport and from the information available to me, it seems right to cancel your leave on the ground that your exclusion from the United Kingdom is conducive to the public good.

I therefore cancel your continuing leave. If your leave was conferred by an entry clearance, this will also have the effect of cancelling your entry clearance.”

3. Despite the rather odd circumstance that the title of the notice refers to refusal of leave to enter, which is not mentioned again, this notice does appear to be in proper form. The statutory provisions are in paragraph 2A of Schedule 2 to the 1971 Act:

“Examination of persons who arrive with continuing leave
2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.
(2) He may be examined by an immigration officer for the purpose of establishing-
(a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled;
(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or
(c) whether there are medical grounds on which that leave should be cancelled.
(3) He may also be examined by an immigration officer for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled.

(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.
(9) Cancellation of a person’s leave under subparagraph (8) is to be treated for the purposes of this act and [Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals)] as if he had been refused leave to enter at a time when he had a current entry clearance.

4. The effect of the decision is the subject of provision in Article 6(1) of SI 2000/1161:

“(1) Where an immigration officer exercises his power to cancel leave to enter under paragraph 2A(8) of Schedule 2 to the Act … in respect of an entry clearance which has effect as leave to enter, the entry clearance shall cease to have effect.”

5. The Appellant exercised the in-country right of appeal which he has by virtue of paragraph 2A(9) of the 1971 Act and his appeal was heard by an Adjudicator on 16 February 2004. In the meantime, the Appellant had been charged with an offence under the Forgery and Counterfeiting Act 1981 and had been acquitted by a jury. The Adjudicator dismissed the Appellant’s appeal on the ground that at the date of the Immigration Officer’s decision, he was entitled, regardless of any subsequent acquittal, to the take the view that the Appellant’s exclusion was conducive to the public good and that the Adjudicator was only concerned to consider whether the Immigration Officer’s decision was within the range of reasonable options open to him on that date. As Mr McGirr readily acknowledges, the Adjudicator made a number of errors in his reasoning and thus in his conclusion.

6. First, this appeal is not under the 1999 Act, as the Adjudicator thought. It is under the 2002 Act. The relevant sections of the Act are:

“82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part ‘immigration decision’ means-
(a) refusal of leave to enter the United Kingdom,

84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

85 Matters to be considered

(4) On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10-
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.”

7. The effect of the Adjudicator’s error about the statutory regime was that he thought that he was dealing with a case to which the predecessor of s 85(5) applied. That was why he refused to take into account the subsequent acquittal. Even if he had been right about the Act, however, he would have been wrong about the process. In assessing the circumstances at any particular date in the past, it is right to look at evidence subsequent to that date, provided that the evidence is relevant to assessing what the circumstances were on that date. This is a rule of common sense, as well as being a very well established rule of law – so well established that no authority is necessary, although perhaps R v IAT ex parte Kotecha [1982] Imm AR 88 will serve. Even if the Adjudicator had been right in considering that s 77 of the 1999 Act applied to this appeal, he should have taken into account the acquittal as showing that, whatever the Immigration Officer’s suspicions, the Appellant was not at the date of the decision properly to be regarded as a criminal. The same would apply in a case to which s 85(5) of the 2002 Act applies. But although the actual decision in this case is cancellation of continuing leave, which has the effect of cancelling entry clearance, the appeal is against refusal of leave to enter, to which s 85(5) does not apply. There is therefore in this case no restriction on the evidence which the Appellant could adduce.

8. The Adjudicator’s third error was to consider this case as though it were a proportionality case, governed by decisions such as Edore v SSHD [2003] EWCA Civ 716 and M (Croatia) [2004] UKIAT 00024*, which he cites. As we attempted to explain in Noruwa [2001] UKIAT 00016*, there is a considerable difference between proportionality cases and cases where the Adjudicator is entitled to substitute his own discretion. That difference appears very clearly in s 84(1)(f), which we have set out above.

9. Paragraph 321A of the Immigration Rules, which governs the cancellation of continuing leave to enter, is not lucidly drafted. Unlike paragraph 320, to which it apparently makes reference, there is no clear dichotomy within it between mandatory decisions and discretionary decisions. The opening words of the paragraph itself do not give any indication. The title of the paragraph is “Grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom”. That, by comparison with the first subtitle in paragraph 320 (as compared with the second subtitle) might be taken to imply that all the grounds within paragraph 321A are matters of mandatory refusal. That may be what the Adjudicator thought, although he does not refer in his determination to the title of the paragraph. If he did think that, we disagree with him. The relevant subparagraph in this case is the following:

“(5) where from information available to the Immigration Officer or the Secretary of State, it seems right to cancel leave on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of that person it is undesirable for him to have leave to enter the United Kingdom.”

10. Those words are, mutatis mutandis, the same as those in paragraph 320(19), which governs discretionary refusal of entry clearance or leave to enter. Further, the words of the subparagraph themselves clearly envisage a discretionary judgment by the Immigration Officer, who is to do what “seems right” to him. We therefore hold that on its true construction paragraph 321A(5) is one to which s 84(1)(f) applies. The Adjudicator is therefore entitled to substitute his discretion for that of the Immigration Officer.

11. The basis of the decision was the possession of the forged passport. Following the Appellant’s acquittal, it cannot be said that he is to be suspected of crime. Looking at the matter as a whole, and with the agreement of Mr McGirr on behalf of the Secretary of State, we find that the Adjudicator erred in law in his determination of the appeal and that he ought to have allowed the appeal on the basis that, given the acquittal, the discretion should have been exercised differently. We therefore allow the Appellant’s appeal to the Tribunal and direct that his entry clearance and continuing leave to enter be restored to force.