BS (India) v Secretary of State for the Home Department

LORD JUSTICE BEATSON: This is the adjourned hearing of the application of Biker Singh, for permission to appeal the decision of the Upper Tribunal promulgated on 13 December 2013. The Upper Tribunal remade a decision of the First-tier Tribunal, dated 12 June 2013, which it held contained a material error of law. It dismissed Mr Singh's appeal against a decision of the Entry Clearance Officer (New Delhi) made on 20 June 2012, refusing him leave to enter the United Kingdom as a spouse of a United Kingdom citizen.

Deputy Upper Tribunal Judge Wilson dismissed the appeal on two grounds. The first is that the Entry Clearance Officer had not erred in refusing leave pursuant to paragraph 320(7)A of the Immigration Rules on the ground that the applicant had used deception in previous applications for leave. The deception was suppressing the fact that at the time of those applications his wife was living in the United Kingdom in circumstances which amounted to making false representations and concealing material facts. The second ground was that applying a traditional method of analysis, following the steps in Razgar [2014] UKHL 27, that refusing leave was in the circumstances not a disproportionate interference with the applicant's right to family life under ECHR Article 8.

The written submissions contain five grounds. But this morning Mr Bajwa, who has appeared on behalf of the applicant, focused his submissions on one. That was that essentially the Deputy Upper Tribunal Judge erred in his conclusion that that Mr Singh was in breach of the rules. The DUTJ had concluded that by virtue of rule 320(11)(iv) the applicant had used deception in applications in the past for entry clearance and that there were aggravating circumstances, so that the default position was that the application should be refused.

In essence, it is submitted that the Deputy Upper Tribunal Judge gave too wide an interpretation to the term "other aggravating circumstances" in rule 320(11). It is also submitted that the bar to entry clearance set out in paragraph 320(7)(b) dealing with breaches by overstaying, breaching a condition, being in an illegal entrant or using deception in an application for entry clearance did not apply. It is argued that there was no deception in the current application and the previous application was that refused on 5th August 2005 which is more than 10 years ago so that the provisions of 320(7)(b)(ii) apply.

Permission to appeal was refused by the Upper Tribunal Judge Macleman on 3rd April 2014. Consideration of permission to appeal by this court was adjourned by Sir Stephen Sedley on 30th September 2014, because the decision appealed against had not been included in the papers received and it was thought that an attempt was being made to appeal a decision promulgated on 4th October 2013, when all that happened then was that directions had been given by the Deputy Upper Tribunal Judge.

On 20th October 2014 Aikens LJ adjourned the application to an inter partes hearing. He stated that since the Upper Tribunal remade the decision of the First-tier Tribunal, it was possible that it ought to have applied the law and Immigration Rules in force at the time it made the decision. In the light of that, as well as Mr Bajwa's submissions on behalf of the applicant, I have written submissions from Mr David Blundell on behalf of the Secretary of State on the distinct point raised by the Aikens LJ.

Since then hearings have listed on three occasions between 11th March and 28th October have been postponed for a variety of reasons.

The positions of the applicant, his wife and his sponsor for his previous applications, a cousin, are set out in the Entry Clearance Officer's decision and paragraphs 12 to 20 of the Upper Tribunal's decision. The applicant's wife was granted a Visit Visa on 20 August 2001. On 28th January 2002 she applied for asylum. That application was refused on 19th February 2002. Following unsuccessful appeals her position was regularised in the United Kingdom under the legacy programme when she was granted indefinite leave to remain on 28th April 2010. She has since been granted British nationality and has used her UK passport to visit the applicant in India.

The Upper Tribunal judge stated that the applicant's wife's evidence was vague, contradictory and against the flow of evidence. In short, it was unreliable. The couple's three children remained with the applicant in the Punjab until they entered the United Kingdom between 2008 and 2011, either as working holiday makers or as students.

It is clear, as the Deputy Upper Tribunal Judge found, that the applicant and his wife have been living functionally apart since 2001 although there had been visits. The applicant visited the United Kingdom in 2005 and 2007. The 2007 visit followed a successful appeal against a refusal of an application he had made in August 2005. The Deputy Upper Tribunal found that the applicant stayed with his wife during these visits.

On 19th June, the day before the decision refusing the applicant leave, he was interviewed by the Entry Clearance Officer. The decision records that the applicant told him at that time his wife, had worked in a sweet shop for 6 to 7 months, and prior to that she had worked in fields. He was asked about the applications he made to enter the United Kingdom since 2003, two of which were granted. In none of them had he said his wife was in the United Kingdom. He said that this was because had he said she was in the United Kingdom, he would not got the Visa because his wife had not become permanent at that time, ie she had not got indefinite leave to remain and indeed had no lawful status.

Asked whether he lied to the officer in the appeal when he failed to say his wife was in the United Kingdom, he replied his cousin was sponsoring him and he did not mention his wife but that he was going to stay with her. He was asked why, given that she had been granted indefinite leave in 2010, he had waited so long to make the present application. He responded that it took him a year to pass his language test.

As to the visit in 2007, the applicant had applied in July and August 2005 to go to the United Kingdom to attend his nephew's wedding but his applications were refused. He was given leave following a successful appeal to the Tribunal against the refusals. An extract from the Tribunal's determination in the decision that he sought to appeal states that he then said that then that having missed the wedding, he wanted to give the young couple his blessing as a family member.

It is not clear when the appeal was promulgated but since the decision appealed against was in August 2005, it is likely that it was at least 12 months later. Since the visa was issued on 7th May 2007 it may be that the appeal was promulgated in the first half of 2007. The material provision of the Immigration Rule is paragraph 320, which lists the grounds on which entry clearance or leave is to be refused. Those material to this applicant's case are rules 320(7A) and 320(11). They respectively provide:

It is also material to state that paragraph A320 provides that save for inter alia subparagraph 11, paragraph 320 does not apply to applications for entry clearance or leave as a family member. Mr Bajwa also relied upon paragraph 7B.

The Entry Clearance Officer was satisfied that the applicant's deception was persistent and continued as described in Chapter 26.18 of the Entry Clearance Guidance. He then considered whether notwithstanding this, the applicant's particular circumstances were of a sufficiently compelling nature to justify granting application in spite of paragraph 320(11) which requires deception and other aggravating circumstances. But he was also not satisfied that the applicant and his wife would be able to maintain themselves and any dependents adequately without recourse to public funds by that that is not an issue in this appeal and was not an issue before the Tribunal which accepted that he would be able to.

The Entry Clearance Officer stated he took Article 8 into account but considered that refusing the application was justified and proportionate in the exercise of immigration control because he did not believe that the application would interfere with family life for purpose of Article 8 and the applicant and his wife who had visited the applicant in India could continue to enjoy that and because the children were all adults.

The applicant appeal to the First-tier Tribunal was dismissed but permission to appeal was given by a different FTT judge on 25th July 2013. This was on the ground the FTT judge had not considered the applicant's case based on Article 8, and had not given himself a self direction as to the burden and standard of proof in approaching the deceptions and the alleged failure to disclose a material fact.

The Deputy Upper Tribunal judge accepted in paragraph 16 what the applicant had said in his application form about his financial position and stated that it was the applicant who supported the children, given his wife's lack of any substantial income before the grant of indefinite leave.

It was accepted by the respondent in the Tribunal that within the confines of the application that led to the refusal now under challenge there was no "actual" deception by the applicant and there had been full disclosure of his circumstances. It was also accepted that in his previous visits to the United Kingdom the applicant had observed the terms and conditions of the visa. To the respondent's knowledge he had not breached them by working or claiming benefits.

The respondent, however, argued that there were aggravating circumstances, resulting from the previous deception. That deception was part of an agreement with the sponsor and his wife to facilitate and maintain her unlawful presence in the United Kingdom and included his conduct in his appeal to the First-tier Tribunal against the 2005 refusal. The number of applications, appeals and visits sufficed to amount to aggravating circumstances.

The aggravation was not diminished by the eventual grant of indefinite leave to the applicant's wife. The children were all adult. Both parties to the marriage were apparently financially stable in their countries of residence.

On the question of deception the Deputy Upper Tribunal Judge considered a number of divisions AA (Nigeria) [2010] EWCA Civ 773, Ahmed [2011] UKUT 00351 and FW (Kenya) [2010] UKUT 165. Ahmed's case was a case of material non disclosure of a fine for travelling on a train, attempting to use an Oyster card and then failing to disclose subsequently that he had a criminal conviction. It was held that although Ahmed had not realised the fine was a criminal conviction, this did not prevent there being a material non-disclosure. In FW (Kenya) it was held a non disclosure was a false representation because it was an answer to a direct question. The answer "no" was both false and a failure to disclose what would be disclosed if it had been answered truthfully.

In the present case the Deputy Upper Tribunal Judge observed at paragraph 28 that in this case there was no such direct question on the visit visa application forms although there was a general question about further or other information. The respondent had also referred to the appeal to the First-tier Tribunal as an aggravating feature.

After setting this out the Deputy Upper Tribunal Judge referred to what the applicant had said in his interview before the decision and to the successful appeal in 2007. As to that, the Deputy Upper Tribunal had obtained a copy of the decision allowing the appeal from the refusal of a Visa in August 2005 from the national archives in Kew. The decision states that the witness statement from the applicant's sponsor referred to a letter which it is stated "goes on and deals with the fact that the appellant has a wife and three children with every incentive to return to India and now wishes to give a blessing to the couple now that the wedding has passed". The FtT judge stated:

The judge found that was a material deception of the Tribunal caused by omitting the fact that appellant's wife was in United Kingdom without leave and by stating she was in India. Although the Upper Tribunal judge regarded it as some mitigation that the applicant returned home at the end of the visit, he was satisfied FtT judge had regarded her presence in India as material in reaching his decision and the evidence that she was in India came from the applicant and his sponsor.

The Upper Tribunal judge concluded that the overwhelming inference was that the applicant's visits to the United Kingdom, the application forms and the appeal were all part of an agreement between himself, his wife and his then sponsor, his cousin, for him to enter the United Kingdom to give support and succour to his wife, and was a deception of both the Secretary of State and the Tribunal.

As to the Article 8 aspect, the Deputy Upper Tribunal Judge considered that the assessment he had carried out as to the requirement of the rules had considered Article 8 but he nevertheless also reviewed the matter under the traditional Razgar method of analysis following the steps set out in that case. He concluded that to allow entry now could be seen to be condoning past deception and absent any express amnesty for such actions, condoning such deception was a weighty consideration with little argument that it was not proportionate to the legitimate aim sought. In paragraph 42 of his decision he referred to the fact that the leave under the legacy programme did not amount to an amnesty to Mrs Kaur and her husband the applicant. Mr Bajwa suggested that this suggested that her case had no merit. The judge used unfortunate phraseology and wrongly interpreted public policy.

I conclude that while the wording might have been better chosen, all that the Deputy Upper Tribunal Judge is doing is reflecting the fact that the legacy programme was not a programme designed to deal with people whose cases were meritorious. It was a programme designed to deal with the fact that, for all sorts of reasons, enormous backlogs had developed in handling the asylum applications by people who had then been in this country for years and had developed links and made new lives. It was not an amnesty. It was an administrative way of clearing the backlog so as to deal with live cases.

I first deal which the question of whether the Upper Tribunal was right to consider the Article 8 claim under the traditional approach in Razgar or should have applied the new provisions of the Immigration Rules introduced by HC194 with effect from 9th July. I accept Mr Blundell's submission that the new rules did not apply to this applicant's application because the Entry Clearance Officer determined it on 20th June 2012, ie about 2 weeks before 9th July.

The position in terms was made clear in two decisions of the Court of Appeal Edgehill v Secretary of State [2014] EWCA Civ 402, and Singh and Khalid v Secretary of State [2015] EWCA Civ 74. In the latter a decision in which a decision after Edgehill but before Singh, Haleemudeen v Secretary of State [2014] EWCA Civ 559, in which I gave the only considered judgment and held the new rules applied was held to be per incurum Edgehill. That case had been decided shortly before Haleemudeen but has regrettably not been referred to in it.

In short, the new rules only apply to decisions made before 9 July in a limited category of case including foreign national criminals as a result of paragraph A362 of the Immigration Rules. There is no arguable error in the decision on this ground.

I return to the remaining grounds advanced by Mr Bajwa today. He did not in his oral submissions criticise the reliance by the Deputy Upper Tribunal Judge on the earlier decision allowing the appeal against the refusal of entry clearance in 2005 but that was one of the written grounds and it was not withdrawn. I therefore say that I do not consider that it gives rise to an arguable ground. The decision was a public document about the applicant. It is not in the bundle prepared for this application although the Deputy Upper Tribunal Judge stated he would annex it to his decision. As the Upper Tribunal judge observed when refusing permission, the applicant has not made any submissions as to whether the Deputy Upper Tribunal Judge erred as to its contents or what grounds other than that the document was not relied on by the Entry Clearance Officer in his decision could justify criticising the reference to this decision.

The question is whether it was material on which it was open to the Deputy Upper Tribunal Judge to find there had been aggravating circumstances and whether there was unfairness in what had happened. The absence of any substantial submissions about the decision is striking. Best practice should have led the Deputy Upper Tribunal Judge to state that he had obtained the decision and intended to rely on it and given the parties an opportunity to make submissions. But in the circumstances of this case, his failure to do so does not give rise to an arguable ground of appeal.

I turn to the arguments based on paragraph 320(11) and paragraph 320(7)(b). It is accepted that the applicant has not overstayed and has left the United Kingdom voluntarily, so that those factors would take the case outside paragraph 307(7)(b). On the premise the applicant did use deception in his previous applications for entry clearance, Mr Bajwa submitted that the evidence of the earlier deception in the earlier successful appeal was in relation to an application made more than 10 years ago, because the application was in August 2005.

The Entry Clearance Officer and the Upper Tribunal, however, relied on subparagraph 7A which concerns false representations, false documents or information submitted, whether or not material to the application or material facts not disclosed in relation to an application in order to obtain documents from the Secretary of State. Moreover, the appeal against the application was, for the reasons I have given, decided less than 10 years ago and there was deception in that and the visa was only given after that.

I do not consider that Mr Bajwa is assisted by subparagraph 7B and, as he stated, it all boils to paragraph subparagraph 11. The rule makes it clear that the examples of other aggravating circumstances are simply examples because it uses the term "such as". I consider that on the evidence before the Entry Clearance Officer and before the Upper Tribunal, both were entitled to conclude as they did notwithstanding the absence of deception in the present application. The course of conduct over the years in which Mrs Kaur was in this country without status and the use of another sponsor to obtain clearance, together with the way the appeal against the 2005 refusal was conducted, entitled the to conclude that the applicant had previously contrived in a significant way to frustrate the intention of the rules. The fact that he had used deception, even if not in the current application for entry clearance, and that the number of entries into the UK and in particular the way the appeal against the 2005 decision was conducted suffice to qualify as aggravating circumstances.

Accordingly, the application on the basis of an error in the application of paragraph 320 does not, in my judgment, raise an arguable ground.

That leaves the Article 8 ground. Mr Bajwa is entitled to rely on the compliance with all other aspects of the rules, the fact that the applicant left voluntarily, that all his trips which were to see his wife, that there is a valid and subsisting marriage, that his three adult children are in this country. But while those are strong compassionate grounds, they were all taken into account by the Deputy Upper Tribunal Judge and it cannot be said that he erred in his approach to them.

As Aikens LJ said when he adjourned this matter to an oral hearing:

For those reasons notwithstanding the clear and helpful submissions by Mr Bajwa this application is refused.