Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 17
P826/10	OPINION OF LORD WOOLMAN in the Petition of A J A (AP) Petitioner; against THE ADVOCATE GENERAL FOR SCOTLAND, AS REPRESENTING THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller

Respondent: McIlvride; Office of the Solicitor to the Advocate General

28 January 2011

Introduction

[1] The petitioner is a Nigerian citizen. In December 2006 he was granted a visitor's visa to enter the United Kingdom. It entitled him to stay here for six months. He continued to stay in this country after his visa had expired.

[2] During the period that he was an "overstayer", the petitioner formed a relationship with IW. They became engaged and he moved into her house in Cowdenbeath, Fife. Because of their joint concerns about his immigration status, he sought legal advice from a Scottish solicitor. The petitioner was advised to return to Nigeria and make a fresh application to enter the United Kingdom.

[3] The petitioner followed that advice and returned to Nigeria in August 2009. The application which he then made for leave to enter the United Kingdom was refused. That decision dated 13 October 2009 was made by the Entry Clearance Officer in Abuja ("the ECO"). The petitioner lodged an appeal against that decision. A hearing took place in March 2010 in Glasgow before Immigration Judge Reid. She issued a determination in his favour dated 23 March 2010 ("the Tribunal decision").

[4] On 27 May 2010, however, the ECO again refused to grant entry clearance. The petitioner challenged that decision in two separate processes. First, he marked another appeal to the Tribunal. Secondly, he raised the present proceedings for judicial review. The day before the first hearing in this process was due to take place, the position radically changed. The petitioner was informed that his application had been reconsidered and a fresh decision made. That new decision comprised three parts: (a) the decision of 27 May 2010 had been withdrawn; (b) his entry clearance was, however, immediately revoked; and (c) that was because on a re-evaluation of his application, it had been decided that entry clearance ought properly to be refused.

[5] Following that decision, the petitioner recast his pleadings in this process. He now challenges the decision to revoke the Entry Clearance.

The Petitioner's Application

[6] The petitioner's application form for Entry Clearance is dated 29 August 2009. It contains the following details:

(i) his date of birth is 1 June 1975

(ii) his main purpose for coming to the UK - "to be with my fiancée".

(iii) he held a Nigerian passport (A014222342) issued on 26 August 2009

he had formerly held another passport (NGA 8006019MO7 D6298), which was now missing

(iv) if granted admission to the United Kingdom, he would receive financial support from his fiancée and members of his family

(v) he had been in Cyprus for 18 months from 12 February 2005 "for my Master's Degree Studies"

(vi) he had been in the United Kingdom as a visitor since 29 December 2006

(vii) he had received a visa for that visit

(viii) he had not been convicted or charged with any crimes

his fiancée was his sponsor

(ix) he had met her on 7 March 2009 and they began a relationship

they had lived together from May 2009 until 21 August 2009

Legal Framework

[7] Persons who apply for entry clearance as fiancé(e)s are subject to Rule 290 of the 2002 Immigration Rules. It includes the following provisions:

"290. The requirements to be met by a person seeking leave to enter the United Kingdom as a fiancé(e) ... are that:

(i) the applicant is seeking leave to enter the United Kingdom for marriage ... to a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(ii) the parties to the proposed marriage ... have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse ... after the marriage ...; and

(iv) adequate maintenance and accommodation without recourse to public funds will be available for the applicant until the date of the marriage ...; and

(v) there will, after the marriage ..., be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(vi) the parties will be able after the marriage ... to maintain themselves and any dependants adequately without recourse to public funds; ..."

All applicants are also subject to Rule 320, which is an anti-fraud provision. In certain cases, entry clearance must be refused, including:

"(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application."

In a number of other cases where entry clearance "should normally be refused". In particular:

"(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules."

...

"(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter."

The First ECO Decision

[8] The first ECO decision is dated 13 October 2009. It was made on the basis of the petitioner's application form and the enquiries undertaken by the ECO. No interview took place. The ECO stated that:

"In considering your application overall, I am not satisfied, on the balance of probabilities, that you meet the requirements of paragraph 290 of the Immigration Rules."

"I am satisfied, to a higher balance of probabilities, that false representations in the form of deception were made in your visa application. I am therefore refusing your application under paragraph 320(7a) of the immigration rules."

[9] Two main matters were relied upon by the ECO in arriving at that decision. First, he found that the petitioner's statement that he had never been charged with a criminal offence was false. Secondly, he decided that the petitioner had not provided his true identity. The ECO referred to records available to him, which he said showed (a) that the petitioner was awaiting prosecution in the United Kingdom; and (b) that he had given at least two different names and dates of birth to police officers in the United Kingdom. No mention was made of Rule 320(11) or (19).

The Appeal

[10] The petitioner's appeal against the first ECO decision was heard in Glasgow on 5 March 2010. The respondent chose not to be represented at the hearing. Prior to the hearing, each party lodged a bundle of documents. The petitioner's bundle comprised some 220 pages, including witness statements. It was lodged a week before the hearing. No motion to adjourn the hearing was made by the respondent.

The Petitioner's Witness Statement

[11] The petitioner's witness statement contains the following information:

(i) He met Ms W in Aberdeen in March 2009. They fell in love and plan to marry.

(ii) He originally entered the United Kingdom in December 2006 and overstayed the period allowed by his visa.

(iii) He returned to Nigeria to regularise his immigration status after consulting with a solicitor in Scotland.

(iv) His old passport had the wrong date of birth (1 June 1980), because he hoped to have a trial with Olympiakos FC when he undertook further education in Nicosia, Cyprus between 2005 and 2006.

(v) His birth name is A J A, but he is universally known as J. His two first names are often reversed.

(vi) The petitioner was: 'not aware that I am awaiting prosecution for anything in the United Kingdom. Clearly, I am not aware of having been charged with any offence'."

[12] The petitioner's statement continues by providing details about three occasions upon which he came into contact with the police in the United Kingdom. The first two occasions are not relevant for present purposes. His account of what happened on the third occasion is as follows:

"32. There was another occasion when I came into contact with the police but this was as a result of ill health. I was working with a company in Inverness and I decided to travel to London with an evening train to go to the Nigerian Embassy. I had had a very hectic day at work and I was absolutely exhausted the next day I arrived at Charing Cross station and I tried to negotiate my way to Northumberland Street where the Nigerian High Commission is located. I remember feeling ill and I lost my way and at the end of a long period all I can remember is that I found myself in a hospital in Dartford where I was put on medication and I was being observed by a number of medical staff. I can vaguely remember being detained by the police and then regaining consciousness in hospital. When I was in the hospital a nurse said to me that the police said I was very strong and they found it quite difficult to put me in their van.

33. Because I was ill my brother was contacted and he visited me in the hospital and encouraged me to take the medication which I was being offered and after a few days I indicated that I wished to be discharged. As a result of that I was introduced to a patient's advocate who arranged a meeting, that is a case conference at the hospital (I was detained in a mental health institution) to discuss whether or not I should be released.

34. A case conference was arranged where my brother was in attendance. This took place in the hospital where there nurses, doctors, my brother and my self present. The hearing in question took about two hours after which I was cleared to go home.

35. The next Sunday evening I travelled back to Inverness in the company of my brother as he was concerned about my welfare.

36. Some time after I got back to Inverness I did get a letter from Charing Cross Police asking me to contact them to travel back to London. I was very nervous (because of what had happened before) of travelling back to London in case anything happened with my health again.

37. What happened when I was in London was that I took ill and ended up being locked up in a mental health unit. Although I may have been detained by the police I have no recollection of having ever being charged with any offence and as I say the whole incident arose as a result of a then mental health problem."

Other Evidence for the Petitioner

[13] In her witness statement, Miss W confirmed that she and the petitioner are in love and plan to marry. She also stated that she was aware of the false date on the earlier passport and the fact that his two first names were used interchangeably, but he was always known as J. A variety of other documents were lodged to prove that they were a loving couple, including cards they had exchanged, photographs of them together and a receipt for an engagement ring. The petitioner's brother provided a statement confirming the details of the detention in the mental health unit in London.

The Immigration Judge's Decision

[14] The Immigration Judge issued her determination allowing the appeal on 23 March 2010. She stated "I listened carefully to the evidence of Miss W, whom I found to be a helpful and credible witness." The Immigration Judge concluded:

"11. The Respondent failed to address paragraph 290 in any detail. However on the basis of my findings of credibility and fact I am satisfied that the Appellant meets all the requirements of paragraph 290.

12. As regards paragraph 320(7A) the Respondent failed to produce any of the Records upon which he claims to have based his decision. There is no evidence from the Respondent as to the claimed prosecution against the Appellant. There is no evidence to support the assertion that the Appellant had not provided details of his true identity. The entry clearance guidance ... specifically states that it is for the Respondent to prove that the Applicant has used falsehood. The respondent has singularly failed to discharge that burden.

13. On the contrary the Appellant provided a credible and satisfactory explanation of the three contacts he had with the police whilst in the UK. None of these led to a prosecution and he has no knowledge of a pending prosecution. Ms W knew about the contacts and was supportive of her fiancé's position.

14. The Appellant was candid in his disclosure that he had previously used another date of birth when travelling to Cyprus to study as he had ambitions to play football at a professional level and had to meet the age requirements.

15. He credibly explained the variation in the use of his names.

16. To the Appellant's credit he returned to Nigeria to apply to obtain a new passport and to apply for entry clearance to the UK as a fiancé. In my view if he had anything to hide he would have avoided doing so. He and his fiancée have been separated now for some seven months as a result of his willing compliance with the entry clearance procedure.

17. Having considered the matter de novo, as I am obliged to do, I am not satisfied that the Respondent was fully justified on the evidence before him in arriving at the decision to refuse the application. I find that the Appellant does meet the requirements of the Immigration Rules and I therefore allow the appeal."

The respondent did not mark an appeal against the Tribunal decision.

The Second ECO Decision

[15] After the appeal, the petitioner renewed his application for entry clearance. The ECO arranged to interview him in Abuja on 27 May 2010. On the same day that the interview took place, the ECO issued a second decision. Entry clearance was again refused to the petitioner.

[16] Although this decision has been withdrawn, it is instructive to consider the reasons given for refusal:

"Due to the evidence you have submitted in this interview I have refused your application for the following reasons.

Within your application you state that you have never been charged with a criminal offence [for] which you have not yet been tried in court .... However, official records show that you are awaiting prosecution for an offence. I am also not satisfied you have provided your true identity as these records show that you gave at least 2 different names and dates of birth to police officers in the UK." ...

"You also have stated during your interview that you failed to comply with your visa requirements and overstayed in the UK. You have admitted to living and working in the UK between 2007 and 2009, you informed me that your intention was to study for an MBA in the UK and was working in order to gain money to do so. Therefore, I am satisfied that you deliberately breached the requirements for your entry clearance. You failed to admit this in your application form. I am satisfied that this conduct is consistent with that described in Entry Clearance Guidance chapter 26.18 ... as having contrived in a significant way to frustrate the intentions of the Immigration Rules. ... Therefore I have refused this application under section 320(11) of [the Immigration Rules]. ...

In light of the above, I have refused your application under paragraph 320(7A) ...

The use of misrepresentation and concealment of material fact undermines your credibility to the extent that I am not satisfied that you are being truthful about the purpose and duration of your proposed settlement to the UK. Therefore, I have refused your application under paragraph 290 (i)...

Your fingerprints have been checked against records held in the United Kingdom. A positive match has confirmed that you are awaiting trial in connection with an offence committed. I am therefore satisfied that your exclusion to the United Kingdom is conducive to the public good. I have considered the circumstances of your application. However, on balance I am not satisfied that they are of a sufficiently compelling nature to override my belief that your exclusion to the United Kingdom is conducive to the public good, for me to exercise the powers of discretion granted to me by section 320(19) of the Immigration Rules."

[17] It will be noted that this decision revisits two of the matters considered by the Immigration Judge and relies on Rule 320(11) and (19) as additional grounds of refusal.

Withdrawal of the Second ECO Decision

[18] The petition for Judicial Review was lodged in court on 5 August 2010. First Orders were granted and the petition was served on the respondent on 12 August 2010. Shortly afterwards, a first hearing was fixed for 12 November 2010. As originally framed, the petition was directed against the second ECO decision. An order was sought to declare that the ECO had acted unreasonably and for an order that the Tribunal decision be implemented.

[19] The respondent first communicated with the petitioner's solicitors about the case by an email sent on the afternoon of 10 November 2010. The email stated "I am in the process of obtaining advice from counsel in relation to the petitioner but can confirm that it will be defended. I hope to be in a position to intimate answers either later today or tomorrow."

[20] The next day, the petitioner received the following email:

"Dear Mr A

further to our telephone conversation and with regards to the aforementioned application, please find attached the amended refusal notice.

I overturned the original decisions and issued the visa in the spirit of the Immigration Judge's determination. However, as I was not satisfied that all points of the case had been considered and that material facts were not declared to the Immigration Judge, I was obliged to conduct a further review. As a direct result an Entry Clearance Officer has re-refused the application and full details are provided in the attached notice."

[21] The email was sent by Mr Tommy McGuinness, who is the "Second Secretary - Visa Services" at the British High Commission in Abuja. As such, he is the Entry Clearance Manager there.

The Third ECO Decision

[22] Shortly afterwards, the petitioner received the third ECO decision, which is dated 9 November 2010. As outlined above, its terms are somewhat unusual. After stating: "I have today issued your visa" in accordance with the Tribunal decision, it continues:

"However, I have gone on to consider evidence which was not available to the Immigration Judge at the time of the hearing and as a result of this information I have cancelled your visa under the powers available to me under paragraph 30(A) of the Rules."

[23] Rule 30A states that an entry clearance may be revoked if the Entry Clearance Officer is satisfied that:

"(i) whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the entry clearance; or

(ii) a change of circumstances since the entry clearance was issued has removed the basis of the holder's claim to be admitted to the United Kingdom, except where the change of circumstances amounts solely to his exceeding the 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) the holder's exclusion from the United Kingdom would be conducive to the public good."

[24] No reasons are given for this part of the decision. I infer that it is the same reasoning that underpins the third part, which is in the following terms:

"I have fully reviewed and considered the totality of the evidence and am satisfied that there has been material deception on your part which ... the Immigration Judge (IJ) was not fully aware of when making her decision to allow your appeal. As such, I am satisfied that you have knowingly made false representations and failed to disclose material facts, either in writing or orally, for the purpose of obtaining the entry clearance."

[25] The ECO refers to several matters: (a) the petitioner's passports, (b) his visa applications, (c) his addresses within the United Kingdom, (d) his travel to the Nigerian High Commission in London, (e) his pending prosecution for an assault on a police officer in the United Kingdom, and (f) the circumstances and location of his first meeting with Miss W.

[26] The decision concludes as follows:

"Whilst I have complied with the ruling of the IJ Reid, on the evidence I now have I cannot be satisfied she was made aware of the discrepancies in your statements, the multiplicity of accounts and the obvious credibility issues surrounding your version of events. As such, I cannot be satisfied that you intend to marry Ms W or that you intend to live permanently with her after marriage and I refuse your application in accordance with paragraph 290(i) (iii) and (vii) of the Immigration Rules."

The Test

[27] The Guide for Entry Clearance Officers published by the respondent states:

"27.11 - Action on receipt of an allowed appeal determination

... In considering whether to grant EC the ECO should proceed on the basis of any facts found to have been established by the AIT. ...

27.11.2 - No Directions given
... Where the ECO has received a copy of the determination from the Home Office, appellants should be dealt with speedily and visas issued as soon as practicably possible.

27.13 - Refusing those who have had appeals allowed.

Posts should not seek, as a matter of course, to re-refuse those whose appeals have been allowed. The criteria for re-refusing an entry clearance are restricted to either a significant and material change in circumstances since the refusal decision or a material deception of which the Immigration Judge would not have been aware. An ECM must endorse any re-refusal."

[28] Parties agree that the test to be applied in this case derives from that last passage. Has the ECO established on the balance of probabilities that there has been a significant and material change in circumstances since the refusal decision, or a material deception of which the Immigration Judge would not have been aware?

Submissions

[29] The petitioner contends that the decision to revoke the entry clearance was unlawful and unreasonable because: (a) the material facts were placed in front of the Immigration Judge; (b) that was the correct point for the respondent to challenge them; and (c) it would undermine the rule of law to allow an ECO to subvert the Immigration Judge's decision.

[30] The respondent submits that despite the appeal, the ECO still had to consider all the relevant circumstances at the time of the third decision. He was not precluded from considering any fresh evidence, just because exhaustive enquiries might have led to that evidence being placed before the Immigration Judge. Finally, the enquiries that had been undertaken after the tribunal determination disclosed that the petitioner had given false information, principally in relation to his passports.

Discussion

[31] When an Immigration Judge has ruled in the applicant's favour, an ECO will only be entitled to re-refuse an application in a very limited class of cases. Where the re-refusal relates to matters which were put in issue at the Tribunal, in my view there must be cogent and compelling reasons for affirming the ECO's decision.

[32] The general position is set out by Rose J. (as he then was) in R v Secretary of State for the Home Dept ex parte Yousuf [1989] Imm AR 554, at page 558:

"... if an entry clearance officer or those acting on his behalf feel that an adjudicator [now Immigration Judge] overruling the decision of an entry clearance officer has reached a wrong decision, the proper course is to pursue an appeal in accordance with the rules to the Immigration Appeal Tribunal. It would be wholly improper for an attempt to be made to circumvent the adjudicator's decision with a view to denying entry on a different basis."

[33] To hold otherwise would have major repercussions. It would undermine the immigration system. If the Secretary of State were free to ignore an unappealed decision of an Immigration Judge, that would damage the rule of law: R v Secretary of State for the Home Department ex parte Mersin [2000] INLR 511, 518G. Such a ruling is binding on the parties: R (Boafo) v Secretary of State for the Home Department [2002] 1 WLR 1919, at para. 26; and R (Saribal) v Secretary of State for the Home Department 2002 INLR 596, at para.17.

[34] Mr McIlvride relied on the fact that in ex parte Yousuf itself, Rose J. held that the entry clearance officer was entitled to arrive at a new view. It is correct that the judgment was referred to without disapproval in R (Boafo) v Secretary of State for of State for the Home Dept [2002] 1WLR 1919. However, Auld LJ emphasised that it was not authority for the general proposition that the Secretary of State is unfettered by the determination of the Immigration Tribunal (at para. 29).

[35] In my view, two questions need to be asked. Was there new evidence? If so, was it false?

Was there New Evidence?

(i) The Passports held by the Petitioner

[36] The petitioner raised the question of the validity of his passport in his witness statement lodged prior to the Tribunal hearing. On his account, he left Nigeria in 2005 to study in Cyprus. While he was there, he had hopes of joining Olympiakos Nicosia FC as a professional footballer. In order to improve his chances of being offered a contract, he obtained a Nigerian passport with a false date of birth. It showed him as being five years younger than his actual age.

[37] That explanation was before the Immigration Judge and she accepted it. It is said by the respondent that the petitioner has held two other Nigerian passports (A4141528 and C651656). That is information which he is said to have given to the Cypriot authorities in 2006, but no evidence to that effect was placed before the Tribunal, nor has the petitioner had an opportunity to comment on the matter.

[38] I also note that although the ECO queries the validity of the petitioner's passport (and therefore his true identity), the ECO was willing to issue a visa in respect of that passport. It is not suggested that the Nigerian authorities deny that it is a valid travel document which sufficiently establishes the Petitioner's identity.

(ii) The Prosecution of the Petitioner

[39] The ECO refers to an expert report that identifies the petitioner as being the person who applied for a visa in Nicosia on 29 December 2006 and who was arrested for a serious assault on a police constable on 7 September 2008. It is asserted that prosecution is still pending for that offence.

[40] Again that is a matter which the Immigration Judge considered and rejected. She stated in her determination "There is no evidence from the Respondent as to the claimed prosecution against the Appellant." I note that no additional evidence has been produced.

(iii) Miscellaneous Matters

[41] There are a number of other matters mentioned in the third ECO decision. However, they were not relied upon by counsel for the respondent as justifying refusal. Accordingly, I shall not consider them further. I should, however, add that at the resumed hearing on 17 December 2010, the petitioner lodged a fax confirming that he received in-patient treatment at Kent NHS. Mr Caskie submitted that if any question had been asked at the relevant time, this information could have been furnished to the ECO.

[42] On behalf of the respondent, Mr McIlvride raised another issue. He stated that the petitioner's bundle did not reach the ECO in Abuja before the appeal hearing in March 2010. In my view, that is irrelevant. As I understand matters, the normal practice is for such a bundle to be sent to the Home Office Presenting Officers at their office within the United Kingdom. If it is important for the original ECO to see an appellant's documents before an appeal, then appropriate arrangements must be made by the respondent.

Summary

[43] In my view, the question of the passports and the prosecution cannot be characterised as new evidence. I say that because they were matters raised prior to the appeal hearing and the respondent chose not (i) to seek an adjournment; (ii) to be represented at the appeal, or (iii) to appeal the Tribunal decision.

Was the information provided by the Petitioner "False"?

[44] The next question is whether the information supplied by the petitioner was "false". The meaning of that term in connection with immigration appeals was considered in AA (Nigeria) v Secretary of State for Home Dept [2010] EWCA Civ 773. Rix LJ began his discussion by stating:

"7. It is a remarkable feature of a language as rich as English that the word 'false' has two meanings. Thus its first meaning (the Concise Oxford Dictionary) is 'wrong, incorrect' and its second meaning is 'lying, deceitful, treacherous, unfaithful to; deceptive; spurious, sham, artificial...'. So it can be used to denote something which is merely not in accordance with the true facts, or it can be used to denote something which is also dishonest (or at least the product of artifice)."

[45] After a detailed analysis, Rix LJ concluded at paragraph 76:

"... Dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a 'false representation' a ground for mandatory refusal."

[46] Applying that approach to the present case, in my view the petitioner did not provide inaccurate or deceptive information to the Tribunal. With regard to passports, he set out the position. In respect of the alleged offence of assaulting a police officer, the precise question asked in the Visa Application Form is "6.10 Have you ever been charged in any country with a criminal offence for which you have not yet been tried in court (including traffic offences)." The answer provided by the Petitioner was "No". That is neither dishonest nor deceptive. The ECO does not assert that the Petitioner was charged with an offence.

Summary

[47] It follows that I also answer the second question in the negative.

The Appeal

[48] I gave my decision in this matter on 18 January 2011. That was done to avoid the need for the appeal hearing fixed for 21 January 2011 to proceed. I did not accept Mr McIlvride's submission that the dispute would be better focussed by way of appeal for three reasons. First, the petitioner has no right of appeal against the decision to revoke the entry clearance. Secondly, I question the competency of the Tribunal being asked to revisit matters of fact which have already been determined. In order to be successful, the respondent would have to persuade another Immigration Judge to make findings of credibility at odds with those of Immigration Judge Reid. Thirdly, there was no guarantee that the hearing would proceed, because as the Second ECO decision no longer stood, the appeal would be deemed to have been withdrawn: Rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Conclusion

[49] In my view the ECO acted unreasonably in arriving at the third ECO decision and I shall reduce the decision to revoke.