UK Immigration & Nationality Lawyers

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Upper Tribunal confirms common law duty to act fairly to be read into the Immigration Rules

In the case of Naved v SSHD [2012] UKUT 14 (IAC), the Upper Tribunal has confirmed that the Secretary of State is bound by a common law duty to act fairly.  A decision not compatible with this principle is not “in accordance with the law”.

The decision in Naved v SSHD follows and further develops previous case law on fairness in immigration decisions in the context of student visa applications.

The new provisions of s. 85A of the 2002 Act restrict the jurisdiction of immigration judges to have regard to documents other than those in the contemplation of the original decision maker. In this case, the question before the court was whether the appellant was entitled to claim “established presence” in the UK contrary to the decision of the Secretary of State based on erroneous information received by the decision-maker from the appellant’s college.  The Secretary of State was criticised for making a decision without seeking further evidence from the applicant or giving him an opportunity to address the reason for refusal.

Where the duty to act fairly has not been complied with, the immigration judge can take this as the ground to allow the appeal.

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