United Kingdom Asylum and Immigration Tribunal

Bishop (criminal offences) New Zealand [2002] UKIAT 05532
TH/06890/2002

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18/11/2002

Date Determination notified: 29 November 2002

Before

Mr C M G Ockelton (Deputy President)

Mr D K Allen

Mr H J E Latter

Between

Bishop	APPELLANT
and
Entry Clearance Officer, Amsterdam	RESPONDENT

DETERMINATION AND REASONS

1. The Appellant is the Entry Clearance Officer, Amsterdam. He appeals, with leave, against the determination of an Adjudicator, Mr J R A Hanratty RD, allowing the appeal of the Respondent, a citizen of New Zealand, against the Entry Clearance Officer's decision on 17th September 2001 refusing him entry clearance to the United Kingdom for the purpose set out in paragraph 246 of HC 395. The ground of refusal was that, from information available to the Immigration Officer, (that is to say, in the present case, the Entry Clearance Officer) it seemed right to refuse entry clearance 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 association with a person seeking entry clearance, it is undesirable to give him leave to enter". Those words are taken from paragraph 320(19) of the Immigration Rules. Before us today the Entry Clearance Officer is represented by Mr Tam, instructed by the Treasury Solicitor, and the Respondent, whom we shall call the Claimant, is represented by Mr Blake QC, instructed by Mischcon de Reya. We have heard submissions from Mr Tam, and have been greatly assisted by a number of interventions by Mr Blake, whom we have not needed to call upon to reply formally to Mr Tam.
2. The grounds of appeal to the Tribunal argue that the Adjudicator erred in his approach to the issues of human rights raised by this appeal and that, in addition, he erred in the attitude he took to the question whether the Claimant was entitled to admission under the Immigration Rules. It is our view, for reasons which we shall shortly set out, that this case falls to be decided exclusively under the Immigration Rules, and we have not therefore needed to consider the Adjudicator's approach to the questions of human rights.
3. Paragraph 246 of HC 395 is concerned with the conditions to be met by a person seeking entry to the United Kingdom in order to exercise access rights to a child resident here. It is now accepted, on behalf of the Entry Clearance Officer, that, at the date of the decision, the Claimant met all the requirements of paragraph 246. We have to say that we are somewhat surprised on the facts that that concession has been made, but there is no doubt that it has and we proceed on the basis that but for factors tending to refusal of entry clearance on public interest grounds, the Claimant would have been granted the entry clearance and indeed the entry that he sought.
4. We do not need to set out the facts of this appeal in any very great detail. The Adjudicator heard oral evidence not, of course, from the Claimant, but from three other individuals; and he heard extensive submissions over two days. His determination extends to some 29 pages. It is not always entirely clear. It contains a number of typographical errors and, as was pointed out in the hearing before us, the Adjudicator appears to confuse entry clearance with entry, and also to have treated the appeal before him as though it were an appeal against deportation or some other removal, which it was not. Nevertheless, the basic facts of the case are dealt with fully in the determination and the Adjudicator made a number of findings of fact and assessments of credibility, in particular in relation to an Immigration Officer, who had dealings with the Claimant on one of his previous visits to the United Kingdom.
5. As is apparent from the context of this appeal within paragraph 246, the Claimant is a party to a marriage which has broken down. The Claimant's ex-wife is a United Kingdom citizen. They married and spent part of their married life in New Zealand. There are two children. The marriage broke down in New Zealand and the wife returned to the United Kingdom. The Claimant seeks access to the children of the marriage. There have been matrimonial proceedings in New Zealand and there are to be further matrimonial proceedings in the United Kingdom. We do not seek to say anything in this determination which might affect the outcome of those proceedings.
6. Given the Claimant's ability to fulfil the requirements of paragraph 246, it is then necessary to consider whether there is any reason why his prima facie entitlement to entry clearance should be affected by anything in his past, or anything known about him. We have already set out the relevant considerations from paragraph 320(19). It is accepted, on both sides, that the decision to refuse entry clearance under that part of paragraph 320 is discretionary and we understand it also to be accepted by Mr Tam that the Entry Clearance Officer, or more generally, the Government, has the burden of proving the existence of the factors upon which reliance is placed to found the exercise of the discretion in question.
7. Mr Tam has asked us to bear in mind three factors which he says justified the decision to refuse entry clearance in this case. The first is the Claimant's previous behaviour to his wife and to various officials. Mr Tam described that behaviour as "lashing out", both actually and figuratively. The factual basis for that part of Mr Tam's submission is, as we understand it, the following. There may have been two incidents of violence by the Claimant against his wife. One may have been the basis for ex parte applications made in New Zealand. We cannot concern ourselves with that. The other, the only one emerging clearly from the evidence, was an occasion in the course of their matrimonial dispute in which the Claimant hit his wife. He was prosecuted in New Zealand for an assault and was fined NZ$500. In our view, that method of disposal shows something of the seriousness with which the New Zealand court regarded this incident. It was clearly not an incident of great severity, although, of course, we cannot condone it. So far as we are aware, no other allegation of physical assault has been made against the Claimant.
8. There have been other incidents, in particular two occasions in which the Claimant had less than happy dealings with United Kingdom Immigration Officials and, in particular with a Mr Woollard. Mr Woollard gave evidence before the Adjudicator. The Adjudicator thought that Mr Woollard had taken an aggressive stance to the Claimant and that Mr Woollard had failed to appreciate fully the nature of the Claimant's anxieties in his dealings with the United Kingdom Immigration Service. We do not go any more deeply into the Claimant's dealings with Mr Woollard. The Adjudicator made his findings of fact. It appears that following his face-to-face contact with Mr Woollard, the Claimant telephoned the United Kingdom Immigration Service from New Zealand pretending to be a lawyer, and specifically, and individually, telephoned Mr Woollard and made various inchoate threats. Again, we do not condone that, but, on the basis of the Claimant's conduct as a whole, we find that it has not been established that the Claimant is actually a danger to his wife or to Mr Woollard or to anybody else at the present time.
9. In this context, we must mention that the Claimant's dealings with Mr Woollard related to an arrival in this country when he was found in possession of a dagger. The Claimant produced an innocent explanation for his possession of the dagger. That explanation was accepted by the Adjudicator and it does not seem to us that anything more needs to be said about that incident. It is not a matter which the Entry Clearance Officer is now entitled to take into account against the Claimant.
10. Mr Tam's second principal basis for supporting the Entry Clearance Officer's decision was that there was what he called a thread of deceit in the Claimant's dealings with the immigration authorities. It is right to say that the Claimant's immigration history is not entirely commendable. It appears that he had indefinite leave to remain as a foreign spouse from some time in the late 1980s. His subsequent movements into and away from the United Kingdom appear to be not properly attested. There is some doubt about whether he was making many visits as a claimed returning resident, although without intention to reside, or whether in fact he was coming and going as a business visitor, or whether perhaps nobody was very concerned about the travels of a New Zealander into and out of the United Kingdom at all.
11. The Claimant has acknowledged that at one stage he arranged his arrival in the United Kingdom through the Republic of Eire, specifically in order to avoid being detected on the United Kingdom Immigration Service computer. There was also an incident in which the Claimant appears to have been, to say the least, less than frank, in obtaining a new passport in Bangkok in order, again, to conceal some of his previous immigration history, including refusals by the United Kingdom authorities. Those two matters amount, we are satisfied, to deceit. However, to call the Claimant's immigration history "one which is infected by a thread of deceit" is, we think, rather overstating the position.
12. Paragraph 320 makes specific provision for discretionary refusal if leave to enter or remain in the United Kingdom has previously been obtained by deception. We cannot see that there is any trace of that in this Claimant's history. That is not to say that substantial deceptions other than effective in obtaining leave to enter or remain could not count towards a refusal under paragraph 320(19). Here, however, there is no suggestion of deception in connection with the present application. One of the alleged deceptions appears to have been a deception practiced on the New Zealand Government on which there is no evidence before us other than that deriving from the Claimant himself, and the other actual deception was admittedly one against the United Kingdom authorities, but it relates to one of what we think it would be right to describe as countless international movements by the Claimant during the course of his business life. Again, we do not condone it but it does not seem to us that the established deceit in the Claimant's immigration history is one which justifies his exclusion now.
13. The third matter to which Mr Tam referred is the Claimant's own attitude to those occasions when he has acted in ways which justify criticism. He has a criminal conviction for assault. There is another criminal conviction which is spent. He has been guilty of deception of the immigration authorities. There have been other incidents in which he has had less than happy relationships with the authorities. Mr Tam points out that when asked at a later stage about these events, he shows an unwillingness to take responsibility for his actions. He tries to blame somebody else, typically a United Kingdom Government official, and he is inclined to tell half truths and to put the best possible "spin" on his history. It may well be that all those comments are well merited. It does not appear to us that they amount to reasons of character or conduct which would make it undesirable for the Claimant to have entry clearance and, indeed, entry to the United Kingdom.
14. For those reasons, we place no weight at all on the matters referred to in Mr Tam's third submission, the Claimant's unwillingness to take responsibility for his history. His wish to throw a good light on the difficult incidents in his past, we do not think is a matter which should be taken into account at all under paragraph 320(19).
15. The Claimant's previous behaviour, both to his wife and to Mr Woollard, are matters which have to be taken into account as is his admitted history of deception of immigration authorities. But even taking those two matters together, we find that they are not sufficient to show that his exclusion from the United Kingdom is now, or was at the date of the decision in this appeal, conducive to the public good. It follows that on the facts of this case as found by the Adjudicator and as explained to us by Mr Tam, we are not satisfied that the exercise of discretion by the Entry Clearance Officer was appropriate and we therefore dismiss the Entry Clearance Officer's appeal against the Adjudicator's determination.
16. The Adjudicator directed that entry clearance under paragraph 346 be granted. We repeat that direction. We note that entry under such circumstances will normally be for twelve months. No doubt those who advise the Claimant will ensure that within that period, so far as possible, the questions which arise in connection with access rights to the children are sorted out one way or the other.