An immigration officer at the port of entry had discretionary power to cancel a visa granted overseas on the ground that the purpose of the visit was not same as stated in the visa granted and to refuse leave to enter the UK.

The Court of Appeal so stated in allowing the appeal of the Secretary of State from the decision of Collin J, dated 5 June 2009 [2009] EWHC 1407 (Admin), granting the applicant, Daniel Owusu Boahen, judicial review by way of an order quashing the decision of the immigration officer, served on the applicant, a Ghanaian national, on 4 November 2008, cancelling a multiple entry visa granted to him on 13 January 2008 in Ghana. Collins J, however, declined to revoke the immigration officer’s decision to refuse the applicant leave to enter under para 320(5) of the Immigration Rules (HC 395).

Para 320(5) of the Immigration Rules provides: “320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2 to 8 of these Rules, and subject to para 321 below, the following grounds for the refusal of entry clearance or leave to enter apply: Grounds on which entry clearance or leave to enter the United Kingdom is to be refused… (5) Failure in the case of a visa national, to produce to the immigration officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought…"

PITCHFORD J said that the grant of a visa giving entry clearance did not automatically grant leave to enter; whether deemed leave to enter was given depended upon whether the visa complied with article 3 of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161). The question of construction was whether, notwithstanding the absence of an express power to refuse leave in the 2000 Order and Sch 2 to the Immigration Act 1971, para 320(5) of HC 395 was intended to apply to those who had existing leave to enter for a purpose different from the purpose for which they had arrived in the UK. The power given by para 2A(2) and (8) of Schedule 2 to the 1971 Act was reproduced in para 321 of the Immigration Rules. Consistency would have required the power given by para 2A(2A) and (8) also to be reflected in the Immigration Rules but, strangely, it was not. That could not have been the draftsman's intention because para 320 of the Rules applied only to refusal of leave to enter and para 2A(2A) and (8) applied only to cancellation. There could, however, be no doubt that, despite its absence from the Immigration Rules, the latter power existed under the terms of the Order and the Schedule.

On arrival the applicant had been seeking neither entry clearance nor leave to enter. He had been relying on his existing entry clearance with its deemed leave to enter. The power of the immigration officer to examine him was confined (under para 2A(2) and (2A)) to the purpose of ascertaining whether there were grounds for cancellation of his leave to enter. It was only if the applicant’s existing leave to enter was cancelled that he could properly be regarded as a person who was seeking leave to enter for a purpose other than that authorised by his visa. In his case, the power provided was not refusal but cancellation of the existing leave to enter under para 2A(2A) and (8) of Sch 2. The immigration officer's refusal of leave to enter under para 320(5) depended for its validity upon the lawfulness of the cancellation under para 321A(1) of the Rules.

Faced with the applicant's presentation on arrival, the first question for the immigration officer, on examination of the applicant, was whether he had arrived for the purpose authorised by his leave. If he concluded that the applicant had arrived for a different purpose, the immigration officer had the following decisions to make: (1) whether the applicant's deemed leave to enter as a visitor under the visa should be cancelled either under para 2A(2A) or 2A(2)(a) (and/or para 321A(1) of the Rules) and (8) of Sch 2; and, if so (2) whether the applicant, as a visa national, should be refused leave to enter under para 320(5) on the ground that he was unable to produce a passport containing a visa which authorised his entry for the purpose of work. The importance of identifying the true ground for the decision to cancel lied in the fact that an immigration officer should be taken to have justified the exercise of a power of cancellation on the grounds stated in the notice. If the stated ground was unsustainable then the decision was unlawful despite the existence of an alternative ground on which the same decision could have been reached. The immigration officer was required to make a judgment under paragraph 2A(2) of Sch 2 and para 321A(1) whether that fact was such a change of circumstances that, in the interests of proper immigration control, his leave should be cancelled. It could not have been the purpose of the legislation to require the immigration officer to be satisfied that the intention of the visa holder was never again during the period of validity to make a visit for the visa purpose. In his Lordship’s view, the margin for judgment by the immigration officer was more generous than this and embraced considerations such as those described.

THOMAS and MUMMERY LJJ agreed.