Ivlev, R (on the application of) v Entry Clearance Officer, New York

Before I turn to consider the individual Grounds, it is convenient to give an over-view of the legal position.

The Claimant has no right to come to the United Kingdom, apart from such rights or legitimate expectation as he might have that the Immigration Rules should be properly applied in his case. The fact that the Claimant scored sufficient points under the Points Based System as potentially to qualify as a Tier 1 Migrant did not create a prima facie right to be granted entry clearance to come to the United Kingdom, because it was also a requirement that “The applicant must not fall for refusal under the general grounds for refusal …” (paragraph 245C(b)). In assessing whether the exclusion of the Claimant from the United Kingdom was “conducive to the public good” for the purposes of paragraph 320(19), there was no presumption that the Claimant ought to be admitted to the United Kingdom. The decision-maker under paragraph 320(19) has a wide power of evaluative judgment to assess what might or might not be conducive to the public good and a wide discretion to decide whether it is right to exclude an applicant for entry clearance on the grounds of his assessment that such exclusion would be conducive to the public good, as assessed by him.

The analogy which the Claimant seeks to draw with the test applicable under Article 1F of the 1951 Refugee Convention (see Ground (3)) is not apposite. The threshold applicable under Article 1F before it can be concluded that an individual is excluded from the humanitarian protection contained in that Convention is comparatively high, precisely because individuals do prima facie have the benefit of rights under that Convention and in view of the importance of the humanitarian protection afforded by those rights, neither of which is a feature of the regime under the Immigration Rules in the present context. It is to be emphasised that the Claimant does not need to come to the United Kingdom to be protected against possible mistreatment by the Russian authorities; he has such protection in the USA.

In dealing with the Claimant’s application, the decision-maker had the difficulty of working out how to address the serious charges which were outstanding against him in Russia in respect of which the Red Notice had been issued by Interpol. A major theme in the Claimant’s submissions is that the decision-maker should have completely discounted the charges against him, on the basis that there were strong reasons for thinking that they were politically motivated. However, I consider that the decision-maker was entitled to treat the charges as possibly having some good basis in fact, even if there had been a political motive for them to be brought forward against the Claimant as they were. The political motivation for the bringing of the charges and the considerable risk as a result that the Claimant might not have a fair trial if returned to Russia could well provide strong grounds for concluding that, if the Claimant was in the United Kingdom, he ought not to be removed or extradited to Russia (which is what had happened in the case of other individuals in the United Kingdom who faced charges in Russia related to their involvement with Yukos). But it does not necessarily follow from this that the charges themselves (whether against the Claimant or the related charges against Mr Khodorkovsky, for which he had been convicted in Russia) are without any substance: see para. [25] above. The decision-maker was entitled to conclude that the Claimant had failed to demonstrate that the charges were entirely without substance.

The Russian courts had scrutinised the charges against the Claimant and had held that they had sufficient substance to merit being allowed to proceed. On their face, the rulings of the Russian courts in relation to the Claimant appear unexceptional and impartial assessments of the material available to those courts.

The Claimant’s principal contention was that the charges against him were without any substance in the same way that the charges against Mr Khodorkovsky were without any substance. Mr Khodorkovsky had been convicted after a trial, on the basis of a very full judgment (so I was told) going into the facts of his case. I was not shown the judgment in relation to the conviction of Mr Khodorkovsky, nor was the ECO or the Secretary of State, on the grounds that it was too long and detailed to be easily digested. When I questioned how in these circumstances I was to make an assessment whether there was any possible substance in the charges against either Mr Khodorkovsky or the Claimant, Mr Fransman QC for the Claimant told me that he was not inviting the Court to decide whether the charges had merit or not. By contrast, he submitted that the decision-maker should have carried out an assessment of the merits of the charges (although he did not allege that the decision-maker should have found them to be wholly baseless), or otherwise should not have taken them into account at all.

I do not accept this submission. It seems completely unreal to me. The Claimant and those acting for him had not equipped the ECO and the Secretary of State with information which would enable them to make any informed attempt at an assessment of the merits, or otherwise, of the charges against Mr Khodorkovsky or the Claimant. They were in no better position so far as that was concerned than was I at the hearing. Those acting for the Secretary of State were entitled to take the view that it was not a sufficient basis for discounting the charges altogether just to point to political motivation in relation to the bringing of the charges and to make very general allegations about the possibility of corruption in the Russian judicial system. Even had the ECO and the Secretary of State been provided with copies of the judgment against Mr Khodorkovsky and detailed comments on it and the evidence in the case and detailed comments on the charges and evidence against the Claimant, it would not have been realistic to expect them to undertake a mini-trial of either Mr Khodorkovsky or the Claimant on the basis of such documents to arrive at a clear conclusion as to their guilt or innocence. The position in which the ECO and the Secretary of State found themselves, awkward though it might be, was that charges had been filed against the Claimant which the Russian courts (albeit courts which might possibly be suspect in terms of their independence from the executive) had scrutinised and determined to have sufficient merit to justify them being taken forward, which charges were closely related to charges against Mr Khodorkovsky in relation to which he had been tried and found guilty (albeit, again, by a court which might possibly be suspect in terms of its independence – though I was not shown any international criticism specifically alleging that the court had been corrupt). The charges against the Claimant had not been subjected to detailed assessment at a trial, but nor was there any real possibility that they could be, since for very understandable reasons he would not return to Russia.

There appeared, therefore, to be objective grounds for thinking that there was a significant possibility that the Claimant might have been involved in some way in the serious wrong-doing alleged against him. The ultimate truth or falsity of the charges could not be determined by the decision-maker. The United Kingdom authorities had done nothing to bring this state of affairs into existence; nor were they in a position to resolve the factual issues underlying the charges against the Claimant and Mr Khodorkovsky. The decision-maker was entitled to take the view referred to in paragraph 10 of Mr Springall’s witness statement, that whilst it could not be assumed that the charges were well founded, it was possible that they were. Since there was a real risk that they were well founded, the decision-maker acting for the Secretary of State was entitled to take this into account, as was done, as a factor indicating that the exclusion of the Claimant from the United Kingdom would be conducive to the public good – i.e. he could legitimately take the view in the circumstances that it would be conducive to the public good to avoid taking the risk of admitting someone who might be prepared to engage in serious criminal activities. This factor cannot be dismissed as something irrelevant to the judgment which the decision-maker had to make.

Mr Fransman also criticised the decision notice, as giving insufficient reasons for taking into account the seriousness of the charges against the Claimant. I do not accept this. I do not think that insufficient reasons were given. The decision notice referred to the fact that the charges had been reviewed and allowed to be issued by the Moscow City Court, the same court which had previously dismissed other accusations against the Claimant (which gave grounds for thinking that its decisions could not be dismissed simply as corrupt and biased against the Claimant). It also stated (correctly, in my opinion) that it was not appropriate for the decision-maker to prejudge the charges, i.e. to make a determination as to their truth or falsity. By natural inference, that left the position as set out above: there was a real risk that the Claimant might have been involved in serious criminal activities.

A decision notice of the sort under review in this case is not to be construed like a statute. The standard to be applied in relation to the reasons given is the familiar one set out by Lord Brown in South Buckinghamshire DC v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953, at [35]-[36]. I consider that the decision notice gave a sufficient indication of the decision-maker’s reasoning process on this particular point and generally, in accordance with that standard. The reasons for the decision were intelligible and adequate. They enabled the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues.

I consider that the reasons set out in the decision notice properly and adequately summarised the further reasoning set out in the February Submission and in paragraphs 8 and 9 of Mr Springall’s witness statement, set out above. Fair reference was made in the decision notice to the problems which the United Kingdom would experience if the Claimant were allowed to enter and the police had to consider whether to arrest him and seek his extradition pursuant to the Red Notice. Counsel for the Claimant emphasised that in the February Submission the advice from the FCO was only that the admission of the Claimant “would be likely to be an irritant to bilateral relations, but one that the FCO consider to be manageable.” In my view, however, the decision-maker for the Secretary of State was entitled to take the view that the FCO’s assessment that the admission of the Claimant would be an irritant in the United Kingdom’s relations with Russia (albeit a manageable one) was a factor which tended to indicate that it would not be conducive to the public good to allow him to enter the United Kingdom. An irritant in bilateral relations with another country is something which has a negative impact on the public good, for all that the impact may be at the milder end of the scale. The objection of SOCA was stronger still: its stated preference was that a visa should be refused. It has its own relations with police agencies in other countries, including Russia, which are important in securing their assistance to combat serious crime. Again, the decision-maker was entitled to take their concerns about the impact on their bilateral relations with their counterparts in Russia as a factor which tended to indicate that it would not be conducive to the public good to allow the Claimant to enter the United Kingdom. Neither of these factors can be dismissed as irrelevant to the judgment which the decision-maker had to make.

Counsel for the Claimant submitted that the decision notice gave excessive weight to the impact of “protracted proceedings” if the Claimant were arrested on arrival in the United Kingdom, pursuant to the Red Notice. It was submitted that extradition proceedings need not be protracted.

I do not agree that the decision notice indicated any error of assessment in relation to extradition proceedings. If extradition proceedings took place, as they would if the police acted on the Red Notice (and the decision notice stated in terms that a Red Notice would not be ignored), there would plainly be a risk that such proceedings could exacerbate strains in relations with the Russian authorities, as the courts reviewed and commented on the state of affairs in Russia and assessed the Claimant’s allegations regarding the political motivation for the charges against him and Mr Khodorkovsky and corruption in the Russian judicial system. There would also plainly be a risk that extradition proceedings which went into the evidence on these matters could be protracted, making it more difficult to smooth over and repair any strains while they continued. The decision notice did not contain a precise assessment of what would necessarily happen (nor, realistically, could it), but rather a fair summary of the sort of negative risks for the United Kingdom’s interests which would arise if the Claimant were allowed to enter.

There is no doubt that the United Kingdom authorities, including the courts and the Secretary of State, would have acted fearlessly and effectively to assess any risk to the Claimant (including, if it was necessary to do so and justified on the evidence available, making severely critical assessments of the position in Russia) and to protect him as appropriate if he was in the country. That is, indeed, what both the United Kingdom courts and the Secretary of State had done in relation to Russian nationals in the United Kingdom defending themselves against removal or extradition to Russia, as referred to above. But it is one thing to say that these things must be done, even at a risk of placing strains on relations with another country, when an individual is already in the United Kingdom and it has obligations to protect them; it is quite another to say that the United Kingdom should place itself into a situation where such strains will arise, and invite such harm to its relations with another country, by allowing an individual to come to the country when it owes no obligation to admit them or to protect them.

That, in my judgment, is the position in relation to the Claimant. The decision-maker on behalf of the Secretary of State was entitled to assess that allowing him to come to the United Kingdom would give rise to avoidable strains upon the United Kingdom’s relations with the Russian authorities, and that this also was a factor which indicated that it would be conducive to the public good to exclude him, so as to avoid such an unnecessary detrimental impact on those relations. The legitimacy of giving weight to this factor is underwritten, in my view, by the way in which it was taken into account alongside a careful assessment of the impact of a refusal on the Claimant. He was working in the USA and would continue to do that - he did not suggest that entry to the United Kingdom was vital to his livelihood or anything more than a commercial convenience for him. Moreover, I consider that it was fair for the decision-maker to assess that if the Claimant were allowed to enter and was then arrested pursuant to the Red Notice and caught up in the potentially huge distraction of extradition proceedings against him (in the course of which there would be a chance he could be detained in custody, to prevent him fleeing to the USA), the practical benefits he would gain in terms of being able to work effectively in the United Kingdom pursuant to his visa might well be severely attenuated.

Finally, particularly at a time of huge strains on the public finances and austerity, I also consider that the decision-maker was entitled to give weight to the consideration that such extradition or associated proceedings would be likely to give rise to a cost to the public purse in various ways (the costs of the extraditing authorities and defence, to the extent not recovered from the parties, and the costs associated with the provision of court time for such proceedings). This was an avoidable and unnecessary cost, which the United Kingdom owed the Claimant no obligation to take on.

In this regard, I should refer to another important theme in the submissions for the Claimant, namely that the principle of the rule of law meant that the decision-maker for the Secretary of State should have completely discounted and given no weight to the outstanding charges against the Claimant. Otherwise, so it was said, the United Kingdom would be furthering in some relevant sense the unlawful persecution of the Claimant by the Russian authorities, by allowing them in effect to interfere with his freedom of travel and ability freely to carry on his business.

I do not accept this submission. The United Kingdom authorities in no way endorsed the treatment of the Claimant by the Russian authorities by taking the decision they did. They simply reacted to the difficult situation in which they found themselves when the Claimant made his application for leave to enter the United Kingdom. They had no obligation to admit the Claimant in order to afford him protection or to further his commercial interests. Provided they acted lawfully in the exercise of their public law powers, in accordance with the usual principles of domestic public law, they properly and fully respected the principle of the rule of law: see R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756, para. [41]. Adapting what Lord Bingham of Cornhill said there to the circumstances of this case: “The issue in these proceedings is not whether [the] decision was right or wrong, nor whether [the Court] agrees with it, but whether it was a decision which [the decision-maker] was lawfully entitled to make. Such an approach involves no affront to the rule of law, to which the principles of judicial review give effect: see R (Alconbury Developments Ltd ) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para. 73, per Lord Hoffmann”. Subject to the unlawful surrender ground, this is how I find the decision-maker for the Secretary of State proceeded in this case.

The Claimant also complained that the decision-maker erred by placing reliance on the factually incorrect statement about the attitude of the US authorities in paragraph 3 of the Annex to the February Submission (paras. [38] and [48] above). It is not altogether clear to me that paragraph 3 of the Annex is necessarily inconsistent with the contents of the letter of 2 September 2011 from the US authorities. But whether it is or it is not, I find that this complaint is not made out. The decision notice stated in terms that the decision-maker was not privy to the decision of the US authorities in agreeing to grant the Claimant US citizenship, and that he relied solely on the evidence presented to him. In my view, this is a clear statement that the decision-maker did not try to assess the reasons or thinking of the US authorities as a factor relevant to his decision, and hence did not rely on that paragraph in the Annex. This also accords with the evidence of Mr Springall about the course of the discussion at the meeting on 14 February 2011.

In my judgment, in the context of the wide power of evaluation conferred by paragraph 320(19), all the factors which the decision-maker took into account as relevant considerations tending to indicate it would be conducive to the public good to exclude the Claimant from the United Kingdom were factors which he could, in his discretion, take into account and give weight to. They were lawfully taken into account as part of a cumulative assessment. It cannot be said that the assessment made was irrational. The fact that the decision-maker gave no or less weight to other factors which he could lawfully have chosen to take into account, if he thought it appropriate to do so, does not render the decision unlawful: see Corner House Research at [40] per Lord Bingham: “A discretionary decision is not … vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so: CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183.”

The Claimant also criticised the decision notice for not containing separate consideration whether, even if the exclusion of the Claimant was conducive to the public good, it “seem[ed] right” (in the language of paragraph 320(19)) to refuse him leave to enter. I do not consider that there is anything in this point. The decision notice contained reasoning which was not simply directed to whether exclusion of the Claimant would be conducive to the public good, but also weighing the impact (or lack of impact) of exclusion on the Claimant. In my view, it is clear from the decision notice that the decision-maker did indeed make an assessment whether it “seemed right” to refuse leave to enter on the ground that it was conducive to the public good.

However, the unlawful surrender ground is now conceded by the Secretary of State to be made out. I consider below the additional issues to which it gives rise.

I now turn to consider the specific Grounds of challenge put forward by the Claimant, which I can do more shortly in light of the general discussion above. I will then address the appeal right issue.

I do not accept that the decision-maker erred in his assessment of what was conducive to the public good by refusing to simply treat the charges as having no substance: see paras. [23]-[27] and [61]-[65] above. On the information provided to him, and having regard to the nature of the case against the Claimant, there was no sensible or viable way in which the decision-maker could assess whether the charges were without substance or not on the particular facts. The Claimant had not demonstrated that the charges were clearly without substance, and the decision-maker was entitled to proceed on the basis that there was a possibility that they did have substance.

In some situations, having regard to unproven allegations of criminal wrongdoing may not be permissible. However, in the circumstances of the present case – particularly where the serious criminal charges in question had been scrutinised and allowed to proceed by the Moscow City Court and where the decision-maker and the United Kingdom authorities were not in a position to resolve disputes about the underlying facts - there were good reasons, as explained above, which made it just and fair for the decision-maker to have regard to the criminal charges against the Claimant and to give them the limited weight he did. In my view, in the context of this case, this was an entirely lawful approach for the decision-maker to adopt: see R v Secretary of State for the Home Department, ex p. Santillo [1981] 1 QB 778, at 787A-B per Comyn J.

Mr Fransman pointed to the decision of the Upper Tribunal (Immigration and Asylum Chamber), unrep., Appeal No. IA/21631/2011, 5 April 2012, in Mahajna v Secretary of State for the Home Department in which at [70] the Tribunal found that the Secretary of State had erred in taking into account an outstanding indictment against the appellant when deciding to make a deportation order against him. However, the decision turned on the particular factual circumstances in that case, which were very different, and does not lay down any general statement of legal principle. In the particular circumstances of the present case, it does not support the Claimant’s claim.

There was an obligation for the decision-maker to give a statement of the reasons for the decision: regulation 5(1)(a) of the Immigration (Notices) Regulations 2003. As set out above, the decision-maker did not attempt to make a final substantive assessment whether the charges were true or false on the facts. It was not incumbent on him to do so. Proper and sufficient reasons were contained in the decision notice to explain why the decision-maker considered that the charges should not simply be treated as discredited: see para. [66]-[68] above.

It was in the context of Ground (3) that the Claimant submitted that the test applicable in relation to Article 1F of the 1951 Refugee Convention is appropriate in the present context as well. I have already rejected that submission: see para. [60] above.

The Claimant also referred to NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031, in which, at paras. [97] et seq., the Asylum and Immigration Tribunal considered the burden and standard of proof applicable under paragraph 322(1A) of the Immigration Rules (leave to remain to be refused “where false representations have been made or false documents or information have been submitted …”). At [98] the Tribunal referred to authority to the effect that in relation to the general grounds of refusal under the Immigration Rules the burden of proof rests on the respondent Secretary of State. In the context of application of paragraph 322(1A), at [101] the Tribunal held that the Secretary of State would “need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a ‘critical’, ‘anxious’ and ‘heightened’ scrutiny.” The Claimant relied on this in support of his submission that the decision-maker had had an insufficient basis to justify the adverse decision taken under paragraph 320(19).

I do not accept this submission. The guidance in NA & Others (Cambridge College of Learning) and the authorities to which it refers is apposite in relation to many of the general grounds for refusal of an application for entry clearance set out in Part 9 of the Immigration Rules, where (as for paragraph 322(1A) or the similar provision in paragraph 320(7A)) the ground for refusal depends on some underlying factual position (“false representations have been made” or, as in paragraph 320(7B)(d), “using deception in an application for entry clearance …”). But in my view the issue which arises under paragraph 320(19) (or the similar provision in paragraph 320(6)), whether a person should be excluded on the ground that this “is conducive to the public good”, is in a different category. The ground of refusal turns not on the existence of some underlying factual position involving the applicant, but on whether the decision-maker holds an opinion about what is conducive to the public good and makes a judgment about what it “seems right” to do in the light of that opinion. Paragraph 320(19) confers a wide discretion and power of evaluation and assessment on the decision-maker to reach a judgment on what is conducive to the public good and on what it “seems right” to do. For this ground of refusal, the issue is simply whether the decision-maker has formed the relevant opinion and made the relevant judgment without breaching any general rules of public law and that the opinion and judgment are ones he could rationally reach.

In the context of this Ground of challenge, the only relevant test is a rationality test. I have concluded above that the decision-maker could rationally form the view that it was conducive to the public good to exclude the Claimant from the United Kingdom and that it was right to do so. So this Ground of challenge is dismissed.

I also consider that this Ground of challenge, in all its various aspects, falls to be dismissed.

In respect of the wide power of evaluation and assessment conferred by paragraph 320(19), it may well be that the sorts of factors identified at sub-paragraphs (a) to (c) of this Ground set out above could potentially be treated as relevant considerations (or not), at the discretion of the decision-maker in a case of this kind. But I do not consider that the decision-maker in the present case failed to have regard to any relevant consideration within the areas identified which he was obliged by law to take into account.

As to sub-paragraph (a), it is clear that the decision-maker did have regard to the Claimant’s representations regarding the unlawful and malign nature of the interest in the Claimant by the Russian authorities, and made a rational assessment of the weight to be given to the charges brought against him. The decision-maker was not obliged in law wholly to discount those charges, on rule of law grounds. Subject to the unlawful surrender ground, the decision-maker acted in accordance with the requirements of the principle of the rule of law, as explained above.

Counsel for the Claimant sought to suggest that by taking a decision to exclude the Claimant on the basis of the charges against him in Russia, the decision-maker condoned or somehow adopted unlawful conduct on the part of the Russian authorities, in breach of rule of law principles. In my view, there is no warrant for this suggestion. The decision-maker simply acted to avoid the various detriments to the public good referred to above which could be expected to arise if the Claimant were given leave to enter. The decision-maker did not thereby make the acts of the Russian authorities those of the United Kingdom in any relevant sense.

This is not a case of the United Kingdom authorities failing to take effective action to combat violation of the rule of law within the United Kingdom’s own territory, and hence to that extent under their control (by contrast with cases such as R v Coventry City Council, ex p. Phoenix Aviation [1995] 3 All ER 37, DC). In the present case, the United Kingdom authorities had to take the external world as they found it and adapt national policy and decision-making in the light of external circumstances. They respected the principle of the rule of law by acting in accordance with the principles of domestic public law: see para. [75] above.

Counsel for the Claimant sought to support his submissions by reference to A v Secretary of State for the Home Department (No. 2) [2005] UKHL 71; [2006] 2 AC 221, in which the House of Lords held that evidence obtained by torture by foreign authorities could not be relied upon in English proceedings. In my judgment, however, that case is far removed from the present, and the principles stated in it are specific to its particular context. As Lord Hoffmann expressed the position, at [82], “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.” In the present case, the decision-maker did not make use of evidence obtained by torture and the principle in A (No. 2) has no application. Indeed, in my view, the decision-maker did not in any real sense make use of the Russian criminal charges against the Claimant for his own purposes; he simply reacted in a lawful and legitimate way to an awkward and difficult situation for which neither he nor the United Kingdom was responsible, and in relation to which national policy and considerations of the public good were inevitably engaged.

As to sub-paragraph (b), the Claimant drew attention to various statements by the British Prime Minister and Foreign Secretary relevant to the case of Yukos and Mr Khodorkovsky. For example, in exchanges in the House of Commons on 22 November 2010, when the Prime Minister was asked whether he would raise human rights issues, in particular in respect of the trial of Mr Khodorkovsky, with the Russian government, he replied: “I take [this] very seriously. We are trying to have better relations with Russia – that is, I think, in our interest – but without trying to gloss over the bilateral impediments to those relations … The impediments to relations between Britain and Russia are well known, but that does not mean that we should fail to speak about these and other things and try to have a slightly better relationship than we have had up to now.”

In my view, there was no incompatibility between the decision taken in relation to the Claimant’s application for entry clearance and general government policy, as so expressed. It was well open to the British government to go on protesting to the Russian authorities about unfairness in the trial of Mr Khodorkovsky while at the same time deciding that it would not be conducive to the public good to admit the Claimant, thereby avoiding exacerbating the strains on relations which the government was seeking to ameliorate.

In any event, the decision on how to proceed in relation to the Claimant’s application in the context of the awkward position which had arisen and the difficulties that created for the proper handling of the United Kingdom’s relations with Russia was very much a matter for assessment at a high level within government, which was the very reason the issue had been referred by the ECO to UKBA head office in London, why the question there was referred to the Directorate and the head of the UKBA and why they in turn took advice from the relevant government department and agency, the FCO and SOCA. It was for Mr Sedgwick and the Directorate to decide, with the benefit of advice from the FCO and SOCA, what implications (if any) wider government interests had for the decision to be taken. They were entitled to assume that the FCO would be fully apprised and up to date with the United Kingdom’s current policy stance in relation to Russia and Mr Khodorkovsky’s case, and to rely on the advice given by them. The FCO did not suggest that refusal of the Claimant’s application would be inconsistent with wider government policy.

As to sub-paragraph (c), the decision-maker did have regard to the issue of relations with other countries, in deciding that a Red Notice was not something that the United Kingdom authorities would ignore. The Interpol Red Notice system depends on international co-operation, and it is clear that the United Kingdom did not wish to jeopardise the network of co-operation by being seen to ignore such a notice. Beyond this, the decision-maker did seek advice from the appropriate source within government, the FCO, to determine whether there were any wider considerations deriving from the conduct of foreign policy which might have a bearing on the assessment of the public good, and the FCO did not suggest that there were. Particularly in the light of the advice from the FCO, there was no obligation on the decision-maker to give distinct consideration to the wider matters referred to by the Claimant.

The claim that an error of law arose because the decision-maker misconstrued the impact upon relations with the Russian Federation that might be caused by the Claimant’s admission (sub-paragraph (d)) is ill-founded. The decision-maker had obtained advice from the bodies in government best placed to assess the impact upon relations with the Russian authorities, the FCO and SOCA. There is no sound basis for thinking that there was any error of assessment on their part or on the part of the decision-maker, having regard to their advice.

As to sub-paragraph (e), I have explained above why, in my judgment, the conclusion of the decision-maker was rational and why rationality is the standard to be applied in this context. I would add that, even if the relevant standard was a proportionality standard, I think the decision-maker made a proportionate assessment of the facts and came to a proportionate conclusion.

I also dismiss this Ground of challenge. As explained above, the decision-maker did not err in law in giving weight to the possibility that there might be extradition or immigration proceedings, nor in assessing that such proceedings might be protracted. The decision-maker was entitled to make the assessment that there was a real risk that both things might happen.

I do not accept the submission (sub-paragraph (c) of this Ground) that the Claimant was prima facie entitled to enter the United Kingdom, nor that court proceedings in the United Kingdom were necessary to vindicate any of his “fundamental rights”. Under paragraph 245C, he was only entitled to enter if none of the general grounds for refusal applied, and it was decided that the general ground for refusal in paragraph 320(19) did apply. He did not need to come to the United Kingdom to secure protection of his fundamental or human rights: they were being protected by the United States. In reality, he wished to come to the United Kingdom for reasons of commercial convenience, and the decision-maker was entitled to conclude that his interest in that respect was not sufficiently strong to justify the cost to the public purse if he was given leave to do that, when taken with the other detriments pointing in favour of his exclusion.

I dismiss this Ground of challenge as well: see para. [78] above. It is clear from the decision notice that both questions were addressed. In the circumstances of the present case, there was no hard and fast division between matters relevant to what was conducive to the public good and the exercise of discretion under the rule. The strength of the “conducive” grounds directly affected the judgment to be made in exercise of the discretion. The decision notice is not hard to understand and reveals no error of approach. The reasoning of the decision-maker, as explained in the decision notice, did not have to be any more “structured” than it was.

In my judgment, none of the three sub-grounds of challenge relied upon under this Ground is valid.

In relation to sub-ground (a) (having regard to an irrelevant matter, by taking into account “the UK’s international duty not to obstruct the course of justice”), there was debate at the hearing regarding the meaning of this consideration in the context of the decision notice. In his Skeleton Argument, Mr O’Connor suggested an interpretation of this phrase to the effect that it was being put forward as a factor which counted in favour of admitting the Claimant (i.e. so that he could be arrested and extradited), but he retracted that suggestion in the course of the hearing. I found that suggestion most implausible, on a fair reading of the decision notice. His final submission at the hearing regarding the meaning of this phrase made far more sense in the context of the decision notice, read as a whole, and I accept it. Mr O’Connor’s submission was that this phrase – which appears in the context of a series of reasons counting against the Claimant’s application (“the seriousness of the charges; … the public interest and the protection of the conduct of foreign policy”) - was a reference to the usual duty of co-operation which the United Kingdom is under to act upon an Interpol Red Notice, and marries up with the later statement, “The UK will not ignore a red notice from Interpol.” The fact that the United Kingdom will not ignore a Red Notice was the basis for the explanation in the paragraph in the decision notice starting with that sentence of some of the reasons why the exclusion of the Claimant would be conducive to the public good. On this reading of the reasons given in the decision notice, there is nothing odd or unlawful in the decision.

I do not consider that the decision-maker erred in failing to treat the Red Notice or the United Kingdom’s international duty not to obstruct the course of justice as positive reasons to admit the Claimant, so that he could be arrested and extradited to face criminal proceedings in Russia. The whole thrust of the Claimant’s argument was that he could not properly be sent to Russia, because he would be subjected to an unfair trial there. It lies ill in his mouth now to say that the decision-maker should have allowed him to enter to achieve the result that he was arrested and sent to Russia. There was no obligation on the decision-maker to make an assessment, contrary to all that the Claimant himself was saying, that the Claimant ought to be admitted in order to achieve this result. Even though this could have been a relevant consideration, had the decision-maker decided in his discretion to treat it as such, there was no mandatory requirement that he do so and so no error of law on his part by omitting to do so: see Corner House Research at [40]. The past decisions of the courts in the United Kingdom in relation to others involved with Yukos, to which the Claimant referred, meant that it was improbable that this would be the eventual outcome. The United Kingdom had no international duty of co-operation which extended to trying to induce a person to enter its territory in order to be arrested.

As regards sub-paragraph (b) (error in having regard to the fact that the Claimant might not be able to fulfil the purpose for which he was to be admitted), I do not consider that this ground of challenge is made out. On a fair reading of the decision notice, the decision-maker was referring to the possible limitations on the benefit which the Claimant might receive if he were allowed to enter. In my view, that was an entirely lawful and valid matter to be taken into account when making the assessment whether it “seemed right” that leave to enter should be refused on the ground that exclusion from the United Kingdom was conducive to the public good. If the benefit to the Claimant, if admitted, might be limited as explained, and the detriment to the public good would be significant, these were relevant matters supporting the overall conclusion that his application for leave to enter should be refused.

As regards sub-paragraph (c), the decision-maker’s assessment of the possible ways in which the Claimant might be hampered in deriving benefit from the grant of leave to enter (including the possibility that he might be detained), and that any proceedings might be protracted, cannot be impugned as irrational or in any way unlawful. Although others involved with Yukos had been granted bail, they were Russian nationals whose scope to leave the United Kingdom may have been limited. The Claimant, on the other hand, was a US citizen entitled to return to the USA at any time, and that was a matter which could be relevant to a decision whether he should be granted bail or not.

The Secretary of State now concedes that there was an unlawful surrender, abdication or delegation of decision-making authority on the part of the ECO, who treated herself as being subject to a direction from UKBA’s head office in London to refuse the Claimant’s application for leave to enter (although those in the London office believed that they were merely providing advice to the ECO, and that the ultimate decision would be for her, in accordance with the decision-making structure provided for by the Immigration Rules in relation to paragraph 320(19)). Nonetheless, the Secretary of State submits that this is a case in which the court should exercise its discretion to refuse to make a quashing order in relation to the decision. It is common ground that the court has a discretion whether to grant relief or not, and that the discretion to refuse relief should only be granted in exceptional circumstances: see e.g. R (Edwards) v Environment Agency [2008] UKHL 22; [2009] 1 All ER 57, in particular at [62]-[65] per Lord Hoffmann.

In this context, the Claimant submits that the effective decision-maker (Mr Sedgwick, acting on the basis of the February Submission and in discussion with other UKBA officials at the meeting on 14 February 2011) did not have sufficient information available to him to allow me to treat his decision as one which was properly considered in public law terms. The Secretary of State accepts that Mr Sedgwick did not personally read the covering letter and materials submitted by the Claimant in support of his application. However, she submits that Mr Sedgwick had an adequate and proper briefing by means of the February Submission to allow him to make the decision (give the advice) on the application of paragraph 320(19) which he did.

The issue on this part of the case is whether the February Submission provided Mr Sedgwick with a sufficient basis on which he could lawfully decide what he did, namely to advise the ECO to refuse the Claimant’s application on “non-conducive” grounds under paragraph 320(19) (which advice the ECO wrongly understood to be a direction). I should observe that the Claimant had not complained at the first part of the hearing, in November 2012, that Mr Sedgwick had been inadequately briefed to enable him to provide the advice he did to the ECO. It is difficult to see how the position is any different now it is appreciated that the advice he gave to the ECO was misunderstood by her to be a direction from him. The issues he addressed were the same, whether the view which he formed and which was passed on to the ECO constituted advice regarding the application of paragraph 320(19) or a direction regarding the application of that paragraph.

In my judgment, whether the view of Mr Sedgwick in relation to that is to be regarded as advice or a direction, the February Submission, combined with the discussion at the meeting on 14 February 2011 described in Mr Springall’s witness statement, provided an adequate and sufficient briefing for Mr Sedgwick on the critical points which had to be taken into account. There is no criticism of Mr Sedgwick for not personally reading all the underlying material sent by the Claimant. It would not be feasible for the head of a body like the UKBA to read all the background documents for the many decisions he has to take. The pressures on his time mean that it is necessary for someone in his position to read submissions and reports prepared for him, giving a summary digest of the information which has to be taken into account (the same is true for a range of decision-makers who face similar pressures on their time, such as government ministers, senior civil servants, local authority council members and executives and so forth). The February Submission drew Mr Sedgwick’s attention to all the important salient details of the Claimant’s case in a fair and even-handed manner. The February Submission and the discussion at the meeting properly equipped Mr Sedgwick to make the decision in issue.

I turn, then, to the question whether this is a case in which it would be just and appropriate for the Court to exercise its discretion to refuse relief on the basis of Ground (8), having dismissed all the other grounds of challenge to the decision. Here, the onus is firmly on the Secretary of State to persuade me that this is the right course, on the grounds that this is an exceptional case. I have given anxious consideration to this question.

Mr O’Connor acknowledges that the present case is not so strongly exceptional as in the Edwards case. Nonetheless, he submits that the present case is exceptional and that refusal of relief in the discretion of the Court is justified. He submits that had things been done properly, with the ECO understanding that the view from the UKBA’s head office in London regarding application of paragraph 320(19) was tendered as advice rather than a direction, it is still obvious that the same decision would have been taken for the same reasons. The error of law can therefore fairly be described as an error of procedure rather than substance, and moreover one which only arose out of inadvertence and a misunderstanding between the London office and the ECO rather than out of any deliberate attempt to subvert the proper decision-making structure under the Immigration Rules. As a matter of substance, the relevant issues under paragraph 320(19) were considered by the persons best placed to do so and to determine the relevant question, whether it was right to refuse leave to enter on the ground that exclusion from the United Kingdom was conducive to the public good, namely the Directorate and the head of the UKBA at the time. The issues were considered by that group with specific reference to the particular facts of the Claimant’s case (by contrast with what had happened in NA (Iraq), in which the Secretary of State had issued blanket guidance to ECOs regarding the weight to be given to a particular form of Iraqi identity document, regardless of information and evidence about individual cases which might be put before ECOs dealing with applications on their facts). In all the circumstances, justice does not require the grant of relief on the basis of the unlawful surrender argument; and in reality quashing the decision on this ground would represent an unmerited windfall for the Claimant.

Against all this, Mr Seddon submitted that there were no good reasons which justified the refusal of relief where it was conceded that the Claimant had made out a good ground of challenge to the decision. The Secretary of State could have directed a refusal of the Claimant’s application under paragraph 320(6) but had not done so, leaving the matter instead to be dealt with under paragraph 320(19), where the relevant decision on the “conducive” grounds was one for the ECO to take, even if with the benefit of advice from others. The Court should not endorse the very illegality identified under this Ground, by assuming that the ECO would simply have acted in accordance with the advice from London in a manner broadly equivalent to abdicating her responsibility under the Rules. Nor, on the facts, could the Court say that the ECO would inevitably have come to the same decision if she had not unlawfully abdicated her personal decision-making role. The issue whether it would be conducive to the public good to exclude the Claimant had been regarded as finely balanced in the UKBA in London, and the recommendation in the February Submission had been in favour of granting the Claimant’s application. The February Submission had been sent to the ECO, and if she had appreciated that it was for her to decide what to do, it was quite possible that she would have reached a decision in line with the recommendation in the February Submission and contrary to the final advice given by Mr Sedgwick. Moreover, there were emails from Ms Evans at the time when the text of the decision was under consideration indicating that she thought the reasons looked weak. Mr Seddon also submitted that I should take into account in deciding how to exercise my discretion that the Secretary of State had originally put forward misleading evidence on this point and had not fully explained how that had come about.

If the decision is quashed on Ground (8), it is common ground that the consequence would be that the Claimant would be permitted to refresh his application under paragraph 245C and the Points Based System, by reference to evidence, material and representations directed to his current circumstances. The parties agree that this would be the correct course even though the category under the Points Based System under which the Claimant had sought entry was abolished in December 2010. If the decision is not quashed, and the Claimant wishes to make a fresh application for a visa by reference to current circumstances, he will have to find some other ground of application under the Immigration Rules as they currently stand. I was not told what other ground of application there might now be.

I have not found this issue an easy one. There is force in the argument by Mr Seddon that, having chosen to proceed under paragraph 320(19) rather than by way of direction under paragraph 320(6), the Secretary of State should be required to accept the consequences of that choice, and the matter should be remitted for an ECO to decide in the light of any advice which might now be given by the UKBA London office. On balance, however, I conclude that this is a case in which the Secretary of State has discharged the heavy onus on her to show that the circumstances are exceptional and such that it is just and appropriate to refuse to grant a quashing order. I accept the submissions of Mr O’Connor in that regard.

In particular, I am persuaded that there was in reality no prospect whatever in the circumstances of this case that the ECO would have come to a different assessment on the question of application of paragraph 320(19) than had been advised to her as the result of the detailed consideration at the highest level within the UKBA at the meeting on 14 February 2011. The Claimant’s case was one of the utmost sensitivity and difficulty, involving questions of foreign policy, international co-operation and use of resources wholly outside the experience and expertise of an ECO. For those very reasons, the ECO had referred the case to head office for advice what to do. Indeed, but for the unfortunate and inadvertent misunderstanding on the part of the ECO at the end of the process, the case provides a good example of “joined up” government, with consideration of the difficult aspects of the case being referred, as was appropriate, to the top of the UKBA, and advice being sought on those issues from relevant government bodies in the form of the FCO and SOCA. The case had been considered in detail on its facts by the head of the UKBA, with the assistance of the Directorate, and clear and specific guidance had been given after careful and balanced internal debate about what was conducive to the public good and what decision should be taken in the public interest. In my view, no reasonable ECO would have regarded the fact that the February Submission had contained a recommendation in favour of granting the Claimant’s application as something which undermined the clear advice ultimately given by the head of the UKBA after debate and consideration of that submission, or as a licence to strike out on their own and, in effect, make international policy for the United Kingdom government in this sensitive area off their own bat.

Therefore, the reality in this case is that the Claimant has not, by reason of the unlawful surrender ground, lost any real or substantive opportunity to have achieved a different result on his application. I consider that the net outcome for the Claimant, if the decision is quashed, of allowing him to have a completely fresh opportunity to make an application under the now repealed Points Based System with fresh evidence and representations can fairly be characterised as an unmerited windfall for him. If the decision were quashed, there would be a lack of proportion between the legal error and the benefit obtained by the Claimant. There would also be a lack of proportion between the error and the further demands which would then be imposed on resources within government to consider and deal with the Claimant’s fresh application under the (repealed) Points Based System, relying on new evidence and representations.

Nor, in my view, is there any good reason based on considerations of the importance of upholding the rule of law why, notwithstanding this, it would nonetheless be appropriate to grant relief in order to vindicate adherence to proper standards in public administration. The unlawfulness which occurred was, in the context of the case, inadvertent and relatively trivial. Although the original evidence for the Secretary of State on this issue was misleading, that was again through inadvertence and not as a result of any deliberate attempt to mislead the Court. The appropriate and proportionate response to that will be reflected in costs, and it is not appropriate to penalise it further by granting relief which it is not otherwise appropriate to grant.

For these reasons, in my discretion I refuse to quash the decision on the basis of Ground (8).

Mr Fransman submitted that a right of appeal is preserved under section 82 of the Nationality, Immigration and Asylum Act 2002 where an application for entry clearance is refused on one of the general grounds for refusal, as distinct from being refused by reference to the terms of the Points Based System. If that is correct, I had difficulty understanding why the proper procedural course for the Claimant in this case was not an appeal under section 82 (complying with relevant time limits), rather than to attempt to obtain judicial review of the decision before bringing an appeal. The scope for intervention by the First-tier tribunal on an appeal under section 82 may be greater, and judicial review is generally only available if there is no other suitable remedy. Where there is doubt whether there is a right of appeal, it would be possible for an appellant to seek to appeal and at the same time either to issue a protective judicial review claim to be stayed pending a decision by the First-tier Tribunal as to its jurisdiction to entertain the appeal or to seek to agree a stand-still agreement with the Secretary of State in relation to a possible judicial review claim pending resolution of that issue by the Tribunal. Nonetheless, since I heard full argument on all the issues of law which arose in the case, the parties invited me to entertain the application for judicial review and rule upon them, whatever I might decide in relation to the appeal right issue. In the event, I find that, contrary to Mr Fransman’s submission, the Claimant had no right of appeal under section 82 of the 2002 Act, so judicial review proceedings were the correct form of proceedings for his claim.

Section 82 of the 2002 Act provides in relevant part as follows:

“(1)

Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2)

In this Part ‘immigration decision’ means - …

(b)

refusal of entry clearance, …”

The general right of appeal contained in section 82 has always been qualified in various ways. In the 2002 Act as originally enacted, section 88 stated that a person could not appeal under section 82(1) in certain circumstances. A further provision limiting entitlement to appeal in entry clearance cases, in the form of section 88A of the 2002 Act, was introduced into that Act by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, with effect from 1 October 2004. That version of section 88A provided that a person could not appeal under section 82(1) if the decision to refuse entry clearance were taken on grounds relating to the immigration rules and specified for the purpose of the section by order of the Secretary of State. In the event, no order was made under that provision, so the general right of appeal in section 82(1) remained available in relation to all entry clearance cases. But in view of the wide express power given to the Secretary of State to remove appeal rights under this provision, it is not plausible to characterise the continuing right of appeal in entry clearance cases as something having the character of a fundamental right in the context of the legislative scheme.

A new version of section 88A was substituted by section 4 of the Immigration, Asylum and Nationality Act 2006. The new section 88A(1) provides that a person may not appeal under section 82(1) of the 2002 Act against refusal of an application for entry clearance unless the application was made “for the purpose of” visiting a person in a class prescribed in regulations or entering as the dependant of a person in circumstances prescribed by regulations. This provision again indicates the comparatively weak and qualified nature which Parliament intends the right of appeal in entry clearance cases to have. The Claimant does not fall within either of the categories for which a right to appeal under section 82 is preserved, so if the new section 88A(1) is in force in relation to him he has no right of appeal under section 82(1) of the 2002 Act.

The new section 88A was to be brought into force in accordance with provision made by order of the Secretary of State: section 62(1) of the 2006 Act. An order made under section 62(1) may make provision generally or only for specified purposes, and may include transitional or incidental provision or savings: section 62(2). The relevant commencement order is the 2008 Order. Article 3 of the 2008 Order provided, inter alia, that section 4 of the 2006 Act (entry clearance – i.e. the new section 88A of the 2002 Act) should come into force on 1 April 2008, “subject to article 4”. The date of 1 April 2008 is the same date as that on which the Points Based System and paragraph 245C of the Immigration Rules came into effect (see Statement of Changes in Immigration Rules laid before Parliament on 6 February 2008, HC 321). Article 4 of the 2008 Order provides as follows:

“Saving and Transitional Provision

4.

Notwithstanding the commencement of section 4 of the 2006 Act and the substitution of section 88A of the 2002 Act and section 23 of the 1999 Act, section 4(1) (appeals: entry clearance) and section 4(2) of the 2006 Act (monitoring refusals of entry clearance) shall have effect only so far as they relate to applications of a kind identified in immigration rules as requiring to be considered under a “Points Based System” and applications made for the purpose of entering the United Kingdom as a visitor, including applications made for the purpose of visiting a person of a class or description prescribed by regulations for the purpose of section 88A(1)(a) of the 2002 Act.” (emphasis added)

The question, therefore, is whether the application made by the Claimant falls within the words of article 4 of the 2008 Order in italics above. In my judgment, it plainly does. The Claimant made his application under paragraph 245C of the Immigration Rules, as it stood at the relevant time, which was part of the Points Based System under those rules. His application, in the form he made it, was one which was required by the Immigration Rules to be considered under the Points Based System. The appeal which the Claimant wishes to bring is one which clearly “relates” to such an application, and the new section 88A of the 2002 Act likewise relates to such an application. The intention in relation to and effect of articles 3 and 4 of the 2008 Order was to bring the new section 88A into effect in relation to applications for leave to enter under the Points Based System at the same time as that System came into effect by virtue of changes to the Immigration Rules, so as to ensure that appeal rights in relation to any application made under that System were withdrawn save to the extent allowed by the new section 88A.

Contrary to the submission of Mr Fransman, article 4 does not separate out the different issues which might arise in respect of consideration of an application made under the Points Based System. It provides for a simple rule according to which applications either do or do not attract a right of appeal. The new section 88A(1) applies generally to exclude a right of appeal against a refusal of an application for entry clearance, unless the relevant application is made for a particular type of purpose (this reservation does not cover the Claimant’s case). Further, paragraph 245(b) of the Immigration Rules expressly incorporates reference to the general grounds of refusal into the conditions which have to be satisfied if an application for entry clearance under the Points Based System is to be allowed. The word “relate” in article 4 is a wide one, which to my mind is clearly apt to cover a case in which an application for entry clearance is made under the Points Based System and is refused by reference to the general grounds for refusal. There is no ambiguity about this. Article 4 provides for a clear and simple rule which covers all aspects of consideration of the applications falling within its scope.

I did not find reference to authorities to which Mr Fransman took me of assistance on this point of construction. There is a very strong presumption that Parliament does not intend to legislate to remove access to the courts: see, e.g., Boddington v British Transport Police [1999] 2 AC 143, 161C-F per Lord Irvine of Lairg LC. But in the present context, that was never in issue. The question governed by section 88A of the 2002 Act (in both its forms) and articles 3 and 4 of the 2008 Order is whether there should be a right of appeal to the Tribunal or whether, instead, a claimant should be left with recourse to the High Court by way of judicial review. The latter does not involve any denial of access to the courts. There is no basis for departing from the plain, ordinary and natural meaning of any of the new section 88A of the 2002 Act, section 62 of the 2006 Act and article 4 of the 2008 Order by reference to this presumption.

Mr Fransman referred, in particular, to R v Secretary of State for the Home Department, ex p. Saleem [2001] 1 WLR 443, CA. That case concerned the lawfulness of certain rules governing the procedure in relation to appeals in asylum cases, severely restricting the time within which such an appeal should be brought. The rules were held to be unlawful as introducing an excessively draconian time limit, falling outside the relevant rule making power to make rules for regulating the rights of appeal conferred by statute. In the particular context of that statutory regime, the Court of Appeal identified the statutory right of appeal as “a fundamental or basic right akin to the right of unimpeded access to a court” (see 449E-450D) and therefore found the strong presumption referred to above to be applicable, so as to give the statutory rule-making power a restrictive interpretation and hence to support the conclusion that the rules in question had been made outwith that power. In my view, the statutory context in relation to the right of appeal in relation to an application for entry clearance in the present case is very different. The right of appeal under section 82(1) of the 2002 Act in such cases was subject to the (old) section 88A (and hence was clearly intended by Parliament to be subject to regulation-making powers on the part of the Secretary of State), and what is regulated by articles 3 and 4 of the 2008 Order is the coming into effect of the (new) section 88A, which restricts the right of appeal still further on the face of the relevant primary legislation. In this statutory context, it is not possible to say that Parliament intended the relevant right of appeal (as distinct from a right to seek judicial review) to be “a fundamental or basic right akin to the right of unimpeded access to a court”. In particular, there is no presumption here that an order made under the commencement power in section 62 of the 2006 Act should be given a restrictive interpretation. The commencement power is a wide power to bring a provision of primary legislation (the new section 88A) into force on such date and in such manner as the Secretary of State orders. Accordingly, there is no good reason to be derived from ex p. Saleem or the other authorities referred to by Mr Fransman to give article 4 of the 2008 Order anything other than its natural and ordinary meaning.

The net effect of the 2008 Order, therefore, is that article 3 and article 4, read together, have brought the new section 88A into effect in relation to cases such as those of the Claimant. By virtue of the new section 88A, the Claimant has no right of appeal under section 82(1) of the 2002 Act.

For these reasons, the only procedural avenue open to the Claimant to challenge the decision in his case was by way of a claim for judicial review.

For the reasons given above, I dismiss the application for judicial review on Grounds (1) to (7) on the merits and on Ground (8) in the exercise of my discretion. I also reject the submission of the Claimant that he has a right of appeal under section 82(1) of the 2002 Act against the decision to refuse his application for entry clearance.