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15 APR 2013

R (on the application of Thebo) v Entry Clearance Officer Islamabad (Pakistan) [2013] EWHC 146 (Admin); (2013) PLLR 038

Immigration - Leave to remain - Discretion - Dishonesty

The Defendant had correctly determined that the Claimant's application for leave to remain was shot through with dishonesty and such a finding was not held to be unlawful.

5 February 2013

Administrative Court

Mostyn J

(1)        The Claimant was a Pakistani paediatrician whose applications for entry clearance were refused on 22 July 2010 and 9 March 2011 pursuant to paragraphs 320(7A) and (7B) of the Immigration Rules. The two questions to be answered in this claim for judicial review were:

(a)        Were paragraphs 320(7A) and (7B) of the Immigration Rules unlawful, therefore meaning that the decisions of the Entry Clearance Officer were unlawful?

(b)        In her application for entry clearance, was the Claimant dishonest? If the Claimant was not found to be dishonest, then the relevant decisions could not stand.

(2)        The repeated refusals for entry clearance were made on the basis of the Entry Clearance Officer finding that the Claimant had made dishonest representations in her application.

(3)        The Claimant alleged that paragraph 320(7A)(7B) fettered the statutory discretion to grant a person leave to remain.

(4)        HELD: The Court held that there was a residual discretion applicable to the policy to grant leave to remain. This meant that the relevant paragraphs challenged could not amount to ‘an illegitimate and impermissible fetter' on the discretion of the decision maker. The Defendant having discretion to refuse entry in certain circumstances was also not held to be irrational or unlawful.

(5)        The Court agreed with the Defendant that a decision under paragraph 320(7A) required a finding of dishonesty, whilst innocent misrepresentations would not trigger the rule. In determining the issue of dishonesty, the Court highlighted that in making her application for entry clearance, the Claimant was under a clear duty to be truthful and the consequences of not being so were made clear. 

(6)        The Court held that the representations made in the application were both deliberately false and extensively dishonesty by way of non-disclosure. The application was described as being ‘shot through with dishonesty almost from start to finish'. As such, the decision maker had reached the correct conclusion. The application for judicial review was therefore dismissed.

Application dismissed

Key Paragraphs

[30] - Not unlawful fetter on discretion

[30] - Discretion not unlawful.

[40] - Duty of candour.

[48] - Dishonesty not misrepresentation.

[50] - Shot through with dishonesty.

[51] - Conclusion.

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