4th October 2011
Refusal of entry at port where entry clearance has been obtained
Khaliq (entry clearance; para 321) Pakistan [2011] UKUT 350 (IAC) (09 September 2011)
This Upper Tribunal case was heard on 16th February 2011. The case concerned the provisions of the Immigration (Leave to Enter and Remain) Order 2000. It was ultimately held that:
“A person who has entry clearance that, under the provisions of the Immigration (Leave to Enter and Remain) Order 2000, takes effect as leave to enter, does not on arrival in the United Kingdom “seek” leave to enter, and paragraph 321 therefore does not apply to him. Paragraph 321A does, but only if the circumstances set out in the paragraph can be shown to exist in his case”.
The facts of the case are as follows:
The appellant is a Pakistani national who arrived in the UK on 3rd January 2010 having obtained entry clearance as a student (which was issued on 25th December 2009). The visa was granted to him on the basis of the acceptance letter received from Leeds Professional College offering him a place on an HND course in Business Management. When he arrived in the UK, the Immigration Officer discovered that the appellant spoke virtually no English even though he had on him, a certificate stating that he had obtained an A grade in English Language in a centre in Karachi. The appellant admitted he bought the certificate from somebody. The Immigration Officer decided that the appellant should not be admitted on the basis that he had ‘no proficiency’ in English language. The appellant was refused under paragraph 321A of the Statement of Changes in Immigration Rules, HC 395 on the basis that he has used false representations or material facts were not disclosed for the purpose of obtaining the visa. The appellant had also failed to mention that his brother was an overstayer in the UK and this was held to be a material fact.
The appellant was denied leave to enter and was granted an in-country right of appeal. The appellant appealed to the First Tier Tribunal which was heard in April 2010 by Judge Agnew. The appeal was refused on the basis that the appellant was not a credible witness. The appellant’s representatives argued that the entry clearance officer had not provided any evidence relating to the appellant’s ability to speak English not had there been any suggestion that the appellant needed to make any reference to his brother’s immigration status in the UK.
Relevant legal framework
Reference was made to Paragraph 2A of Schedule 2 of the 1971 Act which refers to a person who has arrived in the UK with leave to enter which is in force but which was given to him before his arrival. It stipulates that
“2A(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…
(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.”
Reference was also made to paragraphs 321 and 321A in the Immigration Rules which stipulate that:
“Para 321 Refusal of leave to enter in relation to a person in possession of an entry clearance:
A person seeking leave to enter the United Kingdom who holds an entry clearance which was duly issued to him and is still current may be refused leave to enter only where the Immigration Officer is satisfied that:
(i) false representations were made or false documents or information were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for entry clearance; or:
(ii) a change of circumstances since it was issued has removed the basis of the holder’s claim to admission, except where the change of circumstances amounts solely to the person becoming over age for entry in one of the categories contained in paragraphs 296-316 of these Rules since the issue of the entry clearance; or:
(iii) refusal is justified on grounds of restricted returnability; on medical grounds; on grounds of criminal record; because the person seeking leave to enter is the subject of a deportation order or because exclusion would be conducive to the public good.
321A. 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
The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:
(1) there has been such a change in the circumstances of that person’s case, since the leave was given, that it should be cancelled; or
(2) false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave;
….”
Conclusion
At the First Tier Tribunal the judge concluded that an application for leave includes leave to enter the UK at Port, not simply at the time the application for a visa is made. The Upper Tribunal held that this conclusion was wrong. There are two processes for applying for entry clearance:
1. Applying for entry clearance and;
2. The applying for leave to enter
Refusal could take place at the second stage (or first stage) however, following the amendments made by the 1999 Act that was no longer the case. Article 4(3) of the Immigration (Leave to Enter and Remain) Order states “shall have effect as leave to enter”, that has “been granted, before arrival”. Therefore, the appellant does not have to apply for leave to enter as he already has this. Therefore, there was no scope for arguing that anything the appellant did on arrival amounted to an ‘application for leave’ to enter within the meaning of paragraph 321A.
The Tribunal did consider that, if it could be shown that the appellant produced the false language document in connection with his application for entry clearance to the entry clearance officer, than paragraph 321A could apply. In this case, the certificate was not produced to the Entry clearance officer or to the College where he was to study. The judge had assumed he had but there was no evidence to prove this. Furthermore, the college at which the appellant is seeking to study is a Highly Trusted Sponsor. The Tribunal held that it was not possible to say that the appellant had made a false representation in relation to his application. The Tribunal also held that the appellant’s brother’s immigration status was irrelevant to the appellant’s compliance with the Immigration Rules.
The Tribunal therefore concluded that paragraph 321A had no application and the appellant’s entry clearance was valid until it s date of expiry. The appeal was allowed.
September 2011
YT v Secretary of State for the Home Department [2011] EWCA Civ 736:
The appellant in this case had applied for entry clearance to the UK in order to join his wife and their daughter. The appellant and his wife were both refugees from Ethiopia. They married in Italy but while the appellant was granted asylum in Italy, his wife was granted asylum in the UK and their daughter was born there. However, because their marriage was a ‘post-flight marriage’ and because the appellant’s wife was not ‘settled’ in the UK but had only five years to remain as a refugee, the appellant did not have the right to join his family in the UK. His appeal was dismissed for these reasons.
The appellant first appealed the decision to deny entry clearance, made by an entry clearance officer. The Immigration Judge agreed with the entry clearance officer that the appellant and his family could re-establish family life in Italy, so as to satisfy Article 8 ECHR (Right to Family Life). The entry clearance officer’s decision to deny entry to the UK was upheld by an Immigration Judge.
The appellant sought reconsideration of the Immigration Judge’s decision. There was a first stage reconsideration. A second stage reconsideration followed. It was the second stage reconsideration which was appealed in the instant proceedings.
The second stage reconsideration accepted that the appellant had proved his identity and that he was married to his wife. The Immigration Judge could not, however, find evidence of a family life in the UK. The appellant’s wife had visited her husband in Italy (although not since the birth of their daughter) and they had married and conceived their daughter in Italy.
Permission to appeal this decision was granted because of concerns (expressed in the Court of Appeal in A (Afghanistan) [2009] EWCA Civ 825) about the Immigration Rules, which allow migrants with limited leave to remain in the UK to be joined by their spouses, but not refugees with five years limited leave to remain in the UK. The question raised was whether this made the Immigration Rules unfair to refugees. However, in that case the Court of Appeal stated explicitly that it was not dealing with post-flight marriages.
Given that the Immigration Rules were not in question, they had been accurately interpreted by the entry clearance officer who denied the appellant entry to the UK. First, the marriage the appellant relied on was a post-flight marriage, which is excluded under the Immigration Rules. Second, the appellant’s wife was not settled in the UK for the purposes of the Rules, having been granted only five years leave to remain in the UK. Thirdly, the appellant’s wife would not have been able to maintain him without using some public funds.
The key issue was that the duty imposed on states to respect and protect family life under Article 8 ECHR, does not extend to the right of a family to choose where to live. Article 8 ‘cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory’ (Gul v Switzerland [1996] 22 EHRR 93; see also Ahmut v Netherlands [1997] 24 EHRR 62 and Sen v Netherlands [2003] 36 EHRR 7).
The sponsor’s savings can be used when assessing adequate maintenance in entry clearance applications under paragraph 281 and 301 of the Immigration Rules
Jahangara Begum & others (maintenance: savings) Bangladesh [2011] UKUT 246 (IAC) (14 June 2011)
This Upper Tribunal case was heard on 18th April 2011 in Bradford. The appellants are appealing against the decision of Immigration Judge Baker made further to a hearing on 2nd December 2010.
The facts of the case are as follows:
The first appellant is the wife of the sponsor (Mr. Islam) and is also the mother of the second, third, fourth and fifth appellants, all of whom are British citizens. The appellants applied to come to the UK as the spouse and children of the sponsor under paragraph 281 and 301 of the Immigration Rules. However, they were refused on the basis of maintenance stating that the sponsor’s earnings were not adequate to support them without recourse to public funds. The appeal was dismissed at the First Tier Tribunal with the Judge commenting that ‘more cogent proof of future earnings and a higher build up of savings in the future’ would assist in a future application to be successful. The appeal was also dismissed on article 8 ECHR grounds. The appellants sought permission to appeal on the grounds that the Immigration Judge’s treatment of the sponsor’s savings was ‘irrational’. The Judge had calculated the sponsor’s income as £256.34 per week although a minimum of £381.50 per week was required. However, the sponsor had savings of £20,000 which if divided up for the relevant period of time, would make up for the shortfall in maintenance. The relevant period of time was calculated as 27 months (the maximum leave granted) which equates to 117 weeks. The sponsor’s savings is sufficient to support the appellants for a period of 159 weeks, more than required.
In the case of KA and Others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065, it was accepted that savings could be considered in the calculations when assessing available funds and maintenance. The case of Mahad (Ethiopia) v ECO [2009] UKSC 16 held that third party support would be acceptable in order to satisfy the maintenance requirements. The third party needs to demonstrate that the funds are adequate for the period for which the applicant seeks to remain and not in perpetuity. It was argued that, is the sponsor can provide for the appellants from his own savings, this support should not be disallowed when it is clearly allowed from third parties in order to satisfy the maintenance requirements. Permission to appeal was subsequently granted.
Conclusion
The Upper Tribunal held that the First Tier tribunal decision was erroneous and that the Judge had given inadequate reasons for failing to accept that the savings could meet the requirements. The Tribunal acknowledged that in the case of KA and Others, it was decided that “The requirement of adequacy under the Immigration Rules is objective and the level of income and other benefits that would be available if the family were drawing income support was held to be the yardstick”.
Consequently, the Immigration Judge was not entitled ‘to reach his own decision on adequacy without reference to any particular benchmark’.
The decision was set aside and a new decision allowing the appeals was made.
July 2011
Rule 13 bundle- entry clearance officers not complying with Tribunal directions
Cvetkovs (visa – no file produced – directions) Latvia [2011] UKUT 212 (IAC)
This Upper Tribunal case was heard on 17th May 2011 on an appeal from the First-tier tribunal. The case concerned the refusal of a visit visa to visit a family member residence in the United Kingdom.
It was held that, where a visit visa application is refused on the basis of only limited documents being produced and translated and the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, it may be assumed that the appeal is unopposed. Further a challenge by the respondent in such an instance is unlikely to succeed on an application for permission to appeal to the Upper Tribunal.
Facts of the Case
The appellant was a stateless person, resident in Latvia. He applied for a visit visa for the UK to visit his sister who was resident in the United Kingdom. The respondent refused the appellant’s application on the basis that he had not provided satisfactory evidence of his personal and financial circumstances in Latvia. The appellant appealed against the decision and the appeal was allowed on the basis that he was a genuine visitor who intended to leave the United Kingdom at the end of the period of the visit and who would be maintained and accommodated without recourse to public funds and employment. The respondent appealed against the decision of the First-tier Tribunal.
Determination of the Case
The judge of the First-tier Tribunal had not been provided with a respondent’s bundle and knew little with regard to the purposes of the appellant’s visit from the documents and other data that may have been contained in the application form.
The respondent’s failure to provide the relevant documentation constituted a clear breach of rule 13 of The Asylum and Immigration Tribunal (Procedural) Rules 2005. Any material submitted by the applicant needed to be provided under rule 13(1)(b) as would any other document referred to in the decision pursuant to 13(1)(c). The importance of doing so has become increasingly significant as a result of the coming into force of s.85A of the Nationality Immigration and Asylum Act 2002 which has the effect of reducing the opportunity to supply documents that were not before the decision maker at the material time.
Moreover, it was not open to the respondent to complain of the insufficiency of the judge’s reasoning on the material before him where the respondent’s own default has prevented the judge from having the documents he was entitled to have before him.
Where the Visa Officer has not provided the documents that they are required to provide, it is open to the judge to issue directions that the appeal will be decided on the basis that the Visa officer no longer opposes the appeal. Thus an appeal can be decided on the papers and in the absence of evidence of some mandatory reason for refusal; it is likely the appeal will be successful.
In such cases judges of the First-Tier Tribunal and Upper Tribunal considering applications for permission to appeal from the respondent on the grounds that there was insufficient evidence or reasoning by the First Tier judge should generally refuse them. It is for the respondent to provide the information that can be independently assessed.
It was concluded that the Visa Officer should reconsider the matter in light of the findings of the judge in the First-tier Tribunal. The appeal was subsequently dismissed.
June 2011
Directions issued by Immigration Judge in Entry Clearance appeals
SP (allowed appeal directions) South Africa [2011] UKUT 188 (IAC) (17 March 2011)
This Upper Tribunal case was heard on 15th February 2011 at Field House. The case concerned an entry clearance matter and sections of the Nationality, Immigration and Asylum Act 2002.
Facts of the case
The appellant is a South African national born on 21st March 2001. Her paternal grandparents applied for her to join them in the United Kingdom for the purposes of settlement. She was refused entry clearance by the entry clearance officer (herein after referred to as the ECO) on the basis that she did not satisfy all of the requirements under paragraph 297 of the Immigration Rules. In particular, the ECO refused her application on paragraph 297(f) in that they did not accept that the appellant’s mother was incapable of or unwilling to provide her with parental care. Nor were they satisfied that her mother was happy for the appellant to settle in the UK with her grandparents. The ECO rejected the application stating that there were not sufficiently serious and compelling circumstances that warranted granting her entry clearance. The appellant’s article 8 rights (right to a private and family life under the ECHR) were also considered however, the ECO held that there was not interference with this right.
The decision was appealed against. The Immigration Judge at the First Tier Tribunal found the sponsor grandfather to be a credible witness. He concluded that the case had been made out, including the requirements under paragraph 297(f). The appeal was allowed at this instance.
The respondent ECO applied for permission to appeal against the decision on the basis that the Immigration Judge’s reasoning had not been properly explained and that he had erred by directing the ECO to issue entry clearance. Reference was made to the decision in the case of EA (Ghana) [2005] UKAIT 00108. It was considered that the issuing of such directions could pose difficulties when considering the time passed between the making of the entry clearance application and the hearing taking place; significant changes may take place during that time and the circumstances of the applicant could be much different.
In the case, the circumstances had not changed and the Tribunal indicated that the Secretary of State’s appeal would be dismissed and that the initial Immigration Judge’s decision would be maintained for the reasons as outlined below.
Conclusions
Reference was made to Section 87 of the Nationality, Immigration and Asylum Act 2002 which makes provisions in respect of directions after a successful appeal. This section permits the Tribunal to give a direction for the purpose of giving effect to its decision and is a broader power than the provisions contained within paragraph 21 (5) of Schedule 4 of the Immigration and Asylum Act 1999 where the direction needs to be ‘necessary’.
In this case, the circumstances of the appellant had not changed. It was held that in entry clearance matters, directions could be given only where the Immigration Judge was satisfied that the appellant would be able to continue meeting the requirements in the foreseeable future. In particular, the tribunal held that, where a presenting officer is present, he or she should be consulted to see if he or she sees any difficulties arising from the direction to be issued by the Judge.
The Tribunal decided that the Immigration Judge’s direction be endorsed and subsequently dismissed the ECO’s appeal.
May 2011
KG (Gurkhas; overage dependants; policy) Nepal [2011] UKUT 117 (IAC) (28 March 2011): KG was the 35 year old daughter of a former Gurkha soldier who lived in the UK with his four other children. KG applied for entry clearance to join her family in the UK, on the basis that she was a dependent of a former member of HM armed forces. Her application and subsequent appeal was rejected by entry clearance officers on the basis that ‘exceptional circumstances’ were required to admit an overage dependent.
In Limbu & ors [2008] EWHC 2261 (Admin), it was held that the Entry Clearance Guidance for Gurkhas was unlawful. The guidance was for decisions about whether to admit Gurkhas who wanted to settle in the UK after their discharge from HM armed forces. There was a limited discretion for Entry Clearance Officers to grant admission to Gurkhas, but the instructions they were following were found to be unlawful. As such the Home Office revised the policy. Under the new policy for the Gurkhas there were instructions about allowing entry to dependents of Gurkhas who were over 18 years of age.
Both under the old and new policies, when decisions were taken about KG’s application, the officials involved fail to take account of their discretion to allow KG entry to the UK.
On the facts before him at a previous appeal, the immigration judge had gone further than making what would be the usual ruling in such cases and directing the Entry Clearance Officers to re-make their decision in a lawful manner. The judge determined that there could be only one rational outcome for the overage dependent in this case. KG was living alone in Nepal, she was reliant on her father for financial support, and she was finding it difficult because of disability to take care of herself. The judge therefore directed that KG be granted entry to the UK, citing AG & ors Kosovo [2007] UKAIT 82 and IA Mauritius [2006] UKAIT 82 as authority for his unusual decision.
In the end, these public law principles about fair decisions were not needed. The case was decided on human rights grounds (Article 8 ECHR; right to family life).
Applying Lord Bingham in Razgar [2004] UKHL 27, it was held that there was a family life between KG and her parent which went beyond normal emotional ties. KG’s disability meant she relied on her parents to care for her. As such, the denial of entry clearance interfered with the family life of KG and her parent, to the extent that her Article 8 rights were engaged.
Additionally, there was some perceptible sense of a ‘historical wrong’ to be accounted for, in that the Gurkhas had not been allowed to settle in the UK at a time when KG was a minor and would have been classed as a dependent automatically (JB (India) [2009] EWCA Civ 234).
For these reasons, the public interest in firm, fair immigration control was less strong than usual. KG was granted entry clearance in recognition of her right to family life.
Entry Clearance _ Tax credits _ Public funds
GS (public funds - tax credits) India [2010] UKUT 419 (IAC)
This case considered whether tax credits would be considered as recourse to public funds. It was held that paragraph 6C of the Immigration Rules specifies that an applicant for entry clearance whose arrival would cause an increase in tax credit which the sponsor was already receiving would amount to recourse to public funds. However, where the applicant is joining a spouse who is working and raising children, that spouse’s working tax credit would be reduced as he or she would no longer be receiving the lone parent supplement.
In this case, the appellants application for entry clearance as a spouse under paragraph 281 of the immigration rules, was refused on the basis that there would be additional recourse to public funds. The appellants spouse had two children from a previous marriage which she was raising and a low income job. She was in receipt of working tax credit and child tax credit. The Tribunal had regard to the Tax Credit (Immigration) Regulations 2003 in particular, Reg 3 (1) which states that persons subject to immigration control is not entitled to child tax credit or working tax credit. However, there were also a number of exceptions to this.
Ultimately, the Tribunal determined that the appellants spouse was earning an income (inclusive of tax credits) which was well above the threshold or benchmark of adequacy for the purposes of the immigration rules. The Judge held that it would not be possible to calculate whether or not the spouse’s tax credits would increase until the appellant arrived in the UK and became a part of the household. The child tax credit being paid to the spouse for her children was unlikely to increase upon the appellant’s arrival.
It appeared unlikely that tax credits would increase and in fact, more likely that they would decrease for the appellant’s spouse as she would lose the lone parent supplement being paid. Therefore, the appeal was allowed.
December 2010
Immigration_ Validity and recognition of marriage _ Paragraph 281(iii) of the Immigration Rules_ Lack of mental capacity of the sponsor_ Article 8_ Contact between the Sponsor and the Applicant:
ZB & HB (Validity and recognition of marriage) Pakistan [2009] UKAIT 00040 (11 September 2009)
The Court of Appeal held that :
A marriage that is otherwise valid is not rendered void by demonstration of the incapacity of one of the parties at the time of the ceremony; but a marriage that is valid may, in special circumstances (which may or may not relate to capacity) not be entitled to recognition as such.
01.10.1009
Immigration Rules :Whether requirement of self-sufficiency discriminating against disabled_Indefinite Leave to Remain as the spouse of a person who is present and settled in the United Kingdom _ Paragraph 281(v) of the Immigration Rules:
AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 (01 July 2009)
The Court of Appeal held that the requirement of paragraph 281(v) of HC 395 (the maintenance requirement) for a disabled British citizen did not amount to disporportionate discrimination against disabled sponsors under art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Date: 24/08/2009
Immigration _ Article 8 _ Indefinite Leave to Remain as the parent of a person who is present and settled in the United Kingdom _ Paragraph 317 and 322(7) of the Immigration Rules:
ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834 (30 July 2009)
The Court of Appeal emphasises the importance of Article 8, in particular where the focus is on the parent.
Lord Justice Aikens said:
“I accept that, when considering family life for Article 8 purposes, where a court or tribunal is analysing the relationship of a parent and adult children, something more than normal emotional ties between them has to be shown. But where, as here, the focus is on the parent, the issue must be: how dependent is the older relative on the younger ones in the UK and does that dependency create something more than the normal emotional ties? Although this court is not finding facts, it is indisputable that the appellant is an insulin dependent diabetic who needs to be cared for and who is either wholly or largely financially dependent on her family in the UK.”
Date: 01/08/2009