Harinder Singh v Entry Clearance Officer - New Delhi

The appellant, Harinder Singh, was born on 29 November 1976 and is a male citizen of India. The appellant had applied for entry clearance to the United Kingdom as a domestic worker under the provisions of paragraph 159 of HC 395. His application was refused by the Entry Clearance Officer (ECO) New Delhi on 5 January 2011. He appealed to the First-tier Tribunal which, in a determination which was promulgated on 21 June 2011, dismissed his appeal. The appellant applied for permission to appeal to the Upper Tribunal which was initially refused (Immigration Judge Kopieczek) but granted upon renewal (Senior Immigration Judge Warr). The initial hearing took place at Field House on 20 January 2012 when Mr Rehman appeared for the appellant and Mr Avery, a Senior Home Office Presenting Officer, appeared for the respondent. There is no United Kingdom sponsor. Having heard the submissions of both representatives, I reserved my determination.

The appellant had entered the United Kingdom on 23 September 2006 on a working holidaymaker visa which expired on 29 August 2008. During the currency of that visa, the appellant made an in-country application as a Tier 1 (General) Migrant. That application was refused and his appeal to the Asylum and Immigration Tribunal was dismissed on 10 November 2008. The appellant did not seek permission to challenge that determination but he remained in the United Kingdom from 10 November 2008 until 25 April 2009 when he returned to India.

The appellant applied on 15 December 2010 for a domestic worker visa. His application was refused under paragraph 320(7A) of HC 395 which provides as follows:

The refusal notice prepared by the ECO appears to have been completed in haste and with a general lack of care. Having refused the application under paragraph 320(7A), the ECO goes on to note that the appellant’s “failure to disclose material facts” seriously undermined his credibility. Reference is then made to paragraph 41(i) and (ii) which have nothing whatsoever to do with this application. The ECO also noted that it was necessary to assess the application “against paragraph 320(7B)”. That paragraph provides as follows:

The ECO concluded by stating that:

In his determination promulgated on 21 June 2011, Immigration Judge I F Taylor found in favour of the appellant in respect of the refusal of his application under paragraph 159A. He found that paragraph 320(7B) did not apply to the appellant because he had “left the UK voluntarily not at the expense (directly or indirectly) of the Secretary of State more than twelve months ago.” He found, however, that the application was properly refused by the ECO under paragraph 320(7A). In relation to paragraph 159A, the Immigration Judge wrote:

Neither at the initial hearing nor in any response to the grounds of permission, has the respondent challenged that finding. I see no reason to interfere with it. Likewise, the respondent has not challenged the Immigration Judge’s finding in respect of paragraph 320(7B). At paragraph 7 of the determination, I note that the Immigration Judge recorded that, “Although [the appellant] left voluntarily, which is not disputed , at the airport he was served with the papers IS151A as an overstayer …” [my emphasis].

It follows, therefore, that the only issue in the appeal is the Immigration Judge’s decision to uphold the refusal under paragraph 320(7A).

At paragraphs 12-16 of his determination, the Immigration Judge set out his reasons for dismissing the appeal:

There is some difficulty in reconciling the wording of the VAF and the terminology used in the Immigration Rules. As regards the judge’s comments concerning question 6.3 of the VAF, the appellant submits that he was never refused a “visa” for the United Kingdom; rather, he was refused further leave to remain. Further, it is not entirely clear why the Immigration Judge, at paragraph 16, should have regarded the appellant’s answers to question 6.7 on the VAF as a false representation or omission. As the judge noted, the appellant had correctly answered the question and given his Home Office reference number. The judge regarded the provision of that information as “insufficient” noting that the appellant had not included the fact that his application had been unsuccessful. However, the form only states that an applicant should “provide details”; it does not say what those details should be and, in particular, it does not require the appellant to indicate whether or not any application had been unsuccessful. As the judge acknowledges, the provision of the Home Office reference number should have been enough to have enabled the ECO to access the necessary details. Indeed, the appellant went further than that and gave the date of his application. Insofar as the judge may have found that the appellant’s answers to question 6.7 constituted deception, I find that the judge erred by applying an excessively harsh test.

This appeal turns, therefore, upon the answer which the appellant gave to question 6.6. It is agreed by the parties that the appellant has never been deported or removed from the United Kingdom or any other country. The question is whether he has been “otherwise required to leave any country … including the United Kingdom”. It is here where the wording of the form or forms which had been served on the appellant is of importance. In his review, the Entry Clearance Manager had noted that “on 25/04/2009 the appellant was encountered at Heathrow Airport departing voluntarily and was served with papers (IS151A) as an overstayer in breach of the conditions of his stay, namely the prescribed duration of two years.” That statement is inaccurate because it understates the period during which the appellant had been in the United Kingdom with legitimate leave. Notwithstanding the reasons for the dismissal of the appellant’s appeal against the Secretary of State’s refusal to extend his leave to remain, the appellant had applied before his leave as a working holidaymaker had expired. The appellant had enjoyed some form of leave to remain (latterly under the provisions of Section 3C (as amended) of the Immigration Act 1971) up until November 2008. Neither the appellant nor the respondent has retained copies of the papers which were served on the appellant.

The UKBA’s Enforcement Instructions and Guidance indicates that, in the case of an individual who has not made an asylum or human rights claim, he or she would be served with a Form IS151A Part 2 (which notifies the recipient that he or she has no right to appeal whilst in the United Kingdom), rather than the Form IS151B. The Instructions (Chapter 7) provide as follows:

All that is known in the present case (and accepted by both parties) is that the appellant was served with a “Form IS151A.” It is not clear whether he was served with both Part 1 and Part 2. There is no evidence that he was served with a Form IS151B. It is agreed that the appellant was “flight side” at the airport intending to leave the United Kingdom when he was served. There is no evidence that the respondent knew that the appellant would be at the airport that day; it appears that he was encountered by the Immigration Officers by chance.

The standard form IS151A appears in the appellant’s bundle of documents. The form does not contain any indication that it may be only the first of two parts. It is described as a “Notice to a Person Liable to Removal.” The form states that the Immigration Officer is satisfied “from all the information available” that the appellant is “a person in respect of whom removal directions may be given in accordance with Section 10 of the Immigration and Asylum Act 1999 (administrative removal).” Four categories of such a person are then identified, this appellant being described as “a person who has failed to observe a condition of leave to enter or remain or remains beyond the time limited by the leave.” The form then states:

During the course of the hearing, Mr Avery obtained a blank form of the document IS151B. Unfortunately, no copy of the Form IS151A Part 2 was produced. It is not clear whether the appellant ever made a human rights claim; it is possible that he had done so in the course of appealing the refusal of his application for further leave to remain. Because that detail is unclear, the relevance of the Form IS151B is limited. I note, however, that the document is headed “NOTICE OF IMMIGRATION DECISION…DECISION TO REMOVE AN ILLEGAL ENTRANT/PERSON SUBJECT TO ADMINISTRATIVE REMOVAL UNDER SECTION 10 OF THE IMMIGRATION AND ASYLUM ACT 1999 – ASYLUM/HUMAN RIGHTS CLAIM REFUSED”. The text of the form continues, “You were served with form IS151A on [date] informing you of your immigration status and your liability to detention and removal…a decision has now been taken to remove you from the United Kingdom.” At the end of the form, after the details of any appeal the recipient of the form might have, appear the words, “REMOVAL DIRECTIONS if you do not appeal or the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to [country].” The latter statement is the first point in either the form IS151A or IS151B where it is stated, in terms, that the recipient of the forms must leave the United Kingdom. What might be described as the “operative part” of the form IS151B is that part requiring the recipient to leave the United Kingdom. The “operative part” of the form IS151A is that part of the form notifying the recipient that he or she is a person liable to be detained. In my opinion, the form IS151A does not require a recipient to leave the United Kingdom; the form IS151B makes that demand; it has not been possible to confirm whether or not the Form IS151A Part 2 does so also.

The evidence adduced by the respondent in this case is unsatisfactory. The respondent’s own Enforcement Instructions state that:

The respondent has been unable to provide any copy of that record of service, assuming one was ever made. The respondent is now seeking to deny the appellant entry on the basis that he has been dishonest. It is for the respondent accordingly to discharge the burden of proving the allegation. That burden may only be discharged if adequate evidence is adduced by the respondent, including, where appropriate, evidence of the service of documents upon which the respondent seeks to rely.

The Entry Clearance Officer has stated that the appellant was “issued with an IS151A and an admin removal from the United Kingdom” but he or she has not stated the source of that assertion nor has any documentary or first-hand evidence from the immigration officers who encountered the appellant at the airport been adduced, despite the fact that the respondent’s own instructions provide for a record to have been kept. Further, the words “an admin removal” might refer to either a Form IS151A Part 2 or a Form IS151B. It is also possible that no form in addition to the IS151A was served given that the appellant was about to board an aircraft. I find that the bare and uncorroborated assertion of an Entry Clearance Officer, who had no direct knowledge of the service of any forms upon the appellant and who fails to indicate the source of the facts asserted, has been insufficient to discharge the burden of proof in this instance. The discharge of that burden may not always require the production of copies of the actual forms served on an individual (a statement from the immigration officer who served the papers may well suffice) but equally, given the seriousness of the consequences for an appellant faced with a refusal under paragraph 320, a bare assertion in a refusal letter or notice is unlikely to be adequate.

In the present appeal, I find only that (as the parties agree) the appellant was served with Form IS151A (but not a Part 2 Form or IS151B) and, because that form did not require him to leave the United Kingdom, the appellant did not give a false answer when he answered “No” to the question “Have you ever been … otherwise required to leave any country including the UK in the last ten years?”

The Immigration Judge erred in law by dismissing the appellant’s appeal. I set aside the judge’s determination and have re-made the decision. Although the appellant breached the United Kingdom’s immigration laws by overstaying (as the Immigration Judge correctly observed) his present application for entry clearance should not be thwarted by paragraph 320(7B) because he falls within that category of applicant who has left the UK voluntarily and not at the expense of the Secretary of State and who did so more than twelve months ago (see paragraph 320(7B)(d)(iii)). The appeal is allowed.

This appeal is allowed.