IA/46702/2014

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The decision



Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46702/2014


THE IMMIGRATION ACTS


Heard at Field House
Promulgated
On 25 October 2016
On 20 January 2017



Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE DAWSON


Between

VINAY RANGANATH GUPTHA JAVVAJI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Saini, instructed by Legal Rights Partnership
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer.


DETERMINATION AND REASONS

1. The appellant, a national of India was last granted leave to remain in the United Kingdom on 17 July 2012, for a period extending until 6 August 2015. In 2014 he left the United Kingdom, his leave remaining in force. On his return on 24 November 2014 his leave was cancelled by an officer citing and relying on paragraph 321A of the Statement of Changes in Immigration Rules, HC 395 (as amended). The appellant appealed, unsuccessfully, and was refused permission to appeal to the Upper Tribunal. The latter decision was successfully challenged by a claim for judicial review, following which he was granted permission.

2. The basis of the officer's action was that the appellant's previous grant of leave was obtained by misrepresentations. But paragraph 321A makes clear by its wording that the grounds for cancellation have to relate to the leave which is being cancelled, that is, the leave which is in force, the present leave, not any previous leave. That view is endorsed in Khaliq, a decision of this Tribunal, and Amanov, a decision of Green J.

3. In the circumstances Mr Dellar did not seek to raise any vigorous opposition to the grounds.

4. We note, however, that our allowing the appeal should not be taken of itself to indicate that the appellant has current leave. As we understand the matter, if the decision under appeal is reversed, his leave has nevertheless expired: we were not invited to determine whether s 3D of the 1971 Act should be read to include cancellation of leave, a concept not apparent on its face.

5. The appellant's appeal is allowed.




C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 11 January 2017