Upper Tribunal 
(Immigration and Asylum Chamber)  
     
PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC)

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated	
On   8 November 2010  		
	…………………………………	

Before

MR JUSTICE KENNETH PARKER
SENIOR IMMIGRATION JUDGE SPENCER

Between

PS
Appellant
And

ENTRY CLEARANCE OFFICER – NEW DELHI

Respondent

Representation:

For the Appellant:        Mr Ahmed, Counsel, instructed by R Legal Solicitors      
For the Respondent:     Mr C. Avery, Home Office Presenting Officer 

In exercising discretion under paragraph 320(11) of HC 395, as amended, to refuse an application for entry clearance in a case where the automatic prohibition on the grant of entry clearance in paragraph 320(7B) is disapplied by paragraph 320(7C), the decision maker must exercise great care in assessing the aggravating circumstances said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance.

DETERMINATION AND REASONS

1.	This is an appeal by Mr PS against the decision dated 22 July 2009 of the Asylum and Immigration Tribunal (“the Tribunal”) refusing the appeal of Mr S against the decision of the Entry Clearance Officer dated 9 February 2009 refusing entry clearance both under paragraph 320(11) of HC395 and under paragraph 281 of HC395 as amended, in particular paragraph 281(iv) and (v).

2.	The facts, briefly, are as follows.  It appears that Mr S entered the United Kingdom clandestinely in 2000 and claimed asylum, which was interpreted by the respondent as seeking to remain in the United Kingdom indefinitely.  His application was refused. He married SKR, a British citizen.  Mr S had no leave to enter or remain in the United Kingdom (but it appears that he sought to remain in the United Kingdom indefinitely).  However, he returned to India in September 2008 with a view to making an application from outside the United Kingdom to join his wife in the United Kingdom.  In other words, he sought to regularise his immigration status in the United Kingdom.  

3.	SR, Mr S’s wife, lives with her cousin RK and her cousin JSK at an address in Ipswich.  She now works as a manageress at a shop, earning about £840 per month.  She is provided by her cousin with free food and accommodation and the accommodation comprises an apartment above the shop which has three double bedrooms and one single bedroom.  She occupies one double bedroom on her own and her cousin and his wife and children occupy the other two double bedrooms.  The single room is currently unoccupied.

4.	The Tribunal found that at the date of the decision SR had sufficient maintenance available and that there was also satisfactory accommodation available for Mr S.  The Tribunal therefore found that Mr S satisfied the criteria under rule 281 (iv) and (v).   However, the Tribunal upheld the Entry Clearance Officer’s exercise of discretion under paragraph 320(11). 

5.	On 26 August 2009 Senior Immigration Judge Chalkley refused reconsideration, but on 21 January 2010 Collins J in The High Court ordered reconsideration on the basis that there were grounds, indeed strong grounds, for concluding that the Tribunal had made a material error of law.

The Relevant Rules

6.	HC395 at paragraph 320 lays down grounds on which entry clearance or leave to enter is to be refused.  As from 1 April 2008 paragraph 320(7B) was added to the immigration rules and provides, so far as is material to this appeal that entry clearance or leave to enter should be refused where the applicant has previously breached the UK’s immigration laws by (a) overstaying, (b) breaching a condition attached to his leave, (c) being an illegal entrant, (d) using deception in an application for entry clearance, leave to enter or remain, whether successful or not, unless the applicant…. (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State more than 12 months ago.  

7.	As from 30 June 2008 paragraph 320(7C) was added, disapplying paragraph 320(7B), which was made subject to it, where the applicant was applying (as in this case) as (i) a spouse, civil partner or unmarried or same sex partner under paragraph 281 or 295(a).  

8.	HC395 paragraph 320(11) provides that entry clearance or leave to enter should normally be refused:

“where the applicant previously contrived in a significant way to frustrate the intention of the 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.”

9.	These rules produce a somewhat complicated and uncertain system.  On the one hand, the automatic prohibitions on the grant of entry clearance or leave to enter are disapplied in certain specific cases and in relation to certain types of application as explained above.  Nonetheless paragraph 320(11) then offers the opportunity for a discretionary bar to be applied in somewhat uncertain circumstances.  The uncertainty is sought to be reduced by the promulgation of guidance under paragraph 320(11).  The guidance provides that a refusal of entry clearance or leave to enter under paragraph 320(11) may be given on a discretionary basis where an applicant has been an immigration offender or in breach of the UK immigration or other law and where there are aggravating circumstances.  The guidance then sets out a non-exhaustive list of aggravating circumstances which include absconding.

10.	The guidance is to be found in Entry Clearance Guidance under the heading “Refusals” and, in relation to aggravating circumstances, provides as follows:

“Please note that the list below is not an exhaustive list.  Aggravating circumstances can include actions such as:

absconding;  	

not complying with temporary admission / temporary reporting conditions / bail conditions; 

not complying with reporting restrictions; 

failing to comply with removal directions (RDs) after port refusal  of leave to enter (RLE); 

failing to comply with RDs after illegal entry; 

previous working in breach on visitor conditions within short time of arrive in the UK (ie pre-meditated intention to work);  

previous recourse to NHS treatment when not entitled; 

previous receipt of benefits (income, housing, child, incapacity or otherwise) or NASS benefits when not entitled; using an assumed identity or multiple identities;  

previous use of a different identity or multiple identities for deceptive reasons; vexatious attempts to prevent removal from the UK, eg feigning illness; active attempt to frustrate arrest or detention by UK Border Agency or police; 

a sham marriage / marriage of convenience / polygamous marriage in the UK;  harbouring an immigration offender;  facilitation / people smuggling; escaping from UK Border Agency detention;  

switching of nationality; 

vexatious or frivolous applications;  

not complying with re-documentation process.” 
	
The guidance goes on to state:
“All cases must be considered on their merits, the activities considered in the round to see whether they meet the threshold under paragraph 320 (11), taking into account family life in the UK and, in the case of children, the level of responsibility for the breach. 

Where an applicant falls to be refused under 320(7A) or 320(7B), the ECO must also consider whether it is also appropriate to refuse the applicant under paragraph 320(11).  Where 320(7C) applies which makes an applicant exempt from 320(7B), an ECO must consider whether a refusal under paragraph 320(11) is appropriate.”

The Application of the Rules in the Present Case

11.	The automatic prohibition of entry clearance or leave to enter the United Kingdom was disapplied in the case of Mr S under paragraph 320(7C) (see above).  Furthermore, paragraph 320(7B) did not apply in his case because he had left the United Kingdom voluntarily more than 12 months before he made his application for entry clearance.  It might have been thought that the provisions of paragraph 320(7B) and (7C) were, among other things, intended to encourage a person in the position of Mr S voluntarily to leave the United Kingdom, to remain outside the United Kingdom for a significant period and then to seek to regularise his immigration status by applying properly for leave to enter the United Kingdom to join his wife.  That would appear to be a desirable objective of the rules since it would encourage those who were unlawfully in the United Kingdom to leave and, as explained, to seek to regularise their immigration status. 
 
12.	In applying paragraph 320 (11) to Mr S, however, the decision of the Entry Clearance Officer simply recited that Mr S had illegally entered in 2000 and had sought to remain in the United Kingdom indefinitely.  The decision said that it was not clear how Mr S supported himself but on balance it was probable that he had worked illegally.  Then the decision stated:

“Given that you entered as a clandestine and sought to remain indefinitely (which was refused) I am satisfied that you have significantly sought to frustrate the intentions of the immigration rules.”

13.	The Tribunal dealt with this matter at paragraph 21 of its decision:

“I am satisfied that due to the extremely vague nature of the explanation of how the appellant came to be in the United Kingdom in the first place and why he was able willingly to return to India, notwithstanding the fact that he has made an asylum claim, has shown that he has sought to frustrate the intentions of the immigration rules and notwithstanding the fact the ground on which the Respondent sought to refuse the Appellant under 320(11) is a discretionary ground, I have concluded that the Respondent was right to refuse the Appellant in all those circumstances.”

Decision

14.	The Entry Clearance Officer, in making the decision of refusal, refers nowhere to the guidance under paragraph 320(11).  It is therefore wholly unclear whether the Entry Clearance Officer has addressed his mind to the relevant question, namely whether in the circumstances of this case Mr S’s breach of UK immigration law was sufficiently aggravating so as to justify the refusal.  It seems to us that the Entry Clearance Officer should have specifically recognised that Mr S had voluntarily left the United Kingdom more than 12 months ago with a view to regularising his immigration status.  There was no question but that the marriage was a genuine one.  If the aggravating circumstances are not truly aggravating there is in this context a serious risk that those in the position of Mr S will simply continue to remain in the United Kingdom unlawfully and will not seek to regularise their status as he has sought to do.  The effect then is likely to be counter-productive to the general purposes of the relevant rules and to the maintenance of a coherent system of immigration.  However, as explained, the Entry Clearance Officer in this case did not address the correct question and did not carry out an adequate balancing exercise under the guidelines.  Furthermore, Mr S had made a claim under Article 8 which, standing alone, may not have been very strong.  Nonetheless the family circumstances needed to be evaluated carefully in the balancing exercise to which we have referred.

15.	The decision of the immigration judge in effect endorsed the approach of the Entry Clearance Officer to the application of paragraph 320(11), an approach that was not in accordance with law.  Therefore his decision was vitiated by the same legal error, which amounts to a material error of law.  Accordingly we set aside the decision of the immigration judge.   He should have allowed the appeal on the basis that the decision of the Entry Clearance Officer was not in accordance with law.  Therefore we remake the decision by allowing the appeal on this basis and remitting the matter to the primary decision-maker, with a direction that Mr S’s application be considered in accordance with this determination.

Signed							Date

Mr Justice Kenneth Parker
sitting as a Judge of the Upper Tribunal