Overstaying, flight side service and re-entry

The case of Singh (paragraph 320 (7A) – IS151A forms – proof) [2012] UKUT 00162 (IAC) is all about the cat and mouse charades which take place between the UK Border Agency and the subjects of immigration control. Moreover, the case also illustrates the fact that although the UKBA does not usually do anything after refusing an immigration application, it may still try to randomly discipline overstayers leaving voluntarily at their own expense by belatedly serving them papers “fight side” (at the airport). 

Facts

Singh (S), a 32-year old Indian national, applied for entry clearance as a domestic worker. In the past, S had entered the UK in late 2006 as a working holidaymaker (WHM) and he subsequently tried to extend his leave as a highly skilled Tier 1 (General) migrant. Following the refusal of his application S did not appeal the decision but, prior to returning to India voluntarily at his own expense in late April 2009, overstayed for five-and-half months. In mid-December 2010, S applied for a domestic worker visa which was refused in January 2011 under paragraph 320(7A) – relating to false representations/nondisclosure – of the Immigration Rules. Stating that S had been served form IS151A (notifying him of his liability to detention and removal as an immigration offender), the Entry Clearance Officer also refused the application under paragraph 320(7B) which meant that S’s his future applications would be refused for the next 10 years.

First Tier Tribunal

The FTT found that although the requirements for S’s entry clearance as a domestic worker under paragraph 159A were satisfied, the ECO’s application of paragraph 320(7A) was correct. However the FTT rejected the ECO’s finding in relation to paragraph 320(7B) because despite overstaying during his last visit, S left the UK voluntarily at his own expense more that a year ago. Notwithstanding the fact that S provided his Home Office reference number with his application for entry to the UK as a domestic worker, the FTT considered S’s responses to the questions in his visa application form (VAF) to be misleading: it was said that S ought to have expressly clarified that he not only had his Tier 1 (General) application refused, but that he also overstayed and was served form IS151A.

Upper Tribunal

The sole issue before the UT was whether the FTT’s endorsement of the ECO’s decision under paragraph 320(7A) was correct. For the UT, the appeal turned on question 6.6 in the VAF in which S was asked if he had ever been deported, removed or otherwise required to leave any country including the UK in the last ten years? He answered “No” to this. It was agreed that S had not been deported or removed and thus it was common ground that only the phrase “otherwise required to leave any country including the UK” was engaged. The ECO’s decision was characterised as prepared “in haste … with a general lack of care”. The fact that the ECO had unnecessarily referred to paragraph 41 of the rules – pertaining to entry clearance as a general visitor – also irked the UT because S applied as a domestic worker.

Equally the FTT’s conclusion on deception was also criticised because the first instance judge thought that an invitation to “provide details” in the VAF merited wholesale disclosure by S, whereas the truth was that the VAF did not state precisely which details were required – in fact no information in relation to unsuccessful applications in the past was elicited.

In view of the fact that S not only provided his Home Office number, but that he also provided the date of his refused Tier 1 (General) application meant that he did what was expected of him and, therefore, the FTT “applied an excessively harsh test” (para 10). The UT observed that by excluding the statutory extension of S’s leave under section 3C of the Immigration Act 1971, the Entry Clearance Manager who reviewed the ECO’s decision exaggerated the extent of S’s overstaying: the issue was unclear because neither party had retained the papers which were served on S following the refusal of his Tier 1 (General) application (para 11).

In addition to service of form IS151A, the enforcement instructions and guidance (EIG), chapter 7, provide that an immigration decision to remove could be served using either IS151A part 2 (notifying the recipient that a decision has been made to remove him/her from the UK and that the decision is appealable but only from outside the UK) or form IS151B (notifying the recipient that a decision to remove him/her from the UK has been made and that their asylum/human rights claim has also been refused and that the decision is appealable in-country).

The UT noted that although the parties agreed that form IS151A was served “flight side” on S, it was unclear whether both part 1 and 2 were served. In any event, immigration officers at Heathrow encountered S leaving the UK purely by chance. Thus, there was no prior knowledge that he would be at the airport. Bearing all this in mind while weighing up the evidence, the UT was not satisfied that form IS151A part 2 was served on S. And on the face of it, form IS151A alone did not require recipients to leave the UK.

Describing the SSHD’s evidence as “unsatisfactory”, the UT noted (para 16) that – although not mandatory – the SSHD’s own EIG describe serving an immigration decision and IS151A part 1 together as “best practice”. Moreover, the method of service needed to be recorded on the Case Information Database (CID): this was not done in S’s case. Given the gravity of the consequences for S under paragraph 320 of the rules, the UT found that a bare and uncorroborated assertion by an ECO in a refusal letter, without any evidence from the officers who served S with form IS151A, was insufficient to discharge the burden of proof placed on the SSHD.

Therefore the UT (para 20) found that since only form IS151A was served (and not part 2 or IS151B), S had not used deception when he answered “No” to question 6.6 in the VAF, “Have you ever been deported, removed or otherwise required to leave any country including the UK in the last ten years?”

Despite the fact that S breached the UK’s immigration laws by overstaying, the UT allowed the appeal because S could be classed as the type of applicant who had voluntarily left the UK at his own expense more that 12 months ago.

Drawing the above threads together, the UT summarised that:

(1) In an appeal arising from the refusal of an application under paragraph 320(7A) of the Immigration Rules, the burden of proof is upon the respondent to establish on a balance of probabilities that the requirements of that paragraph are made out. Consequently, where the refusal concerns the alleged service of Forms IS151A, IS151A Part 2 or IS151B upon an appellant, the respondent must prove service of the particular form(s). That evidence may comprise copies of the forms served, records of service made by immigration officers or a statement by the person who served the form(s). A bare assertion by an Entry Clearance Officer is unlikely to be sufficient.

(2) Form IS151A does not require the recipient “to leave the United Kingdom.” Such a requirement is made, for example, by Form IS151B. Where a subsequent refusal of an application alleges that the applicant has made a false statement as to whether he or she has been required to leave the United Kingdom in the past, it is, therefore, very important for the Tribunal to know exactly which forms have been served.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Domestic Workers, False Statements, Heathrow, Immigration Rules, Notices, Removals, Tier 1, WHM and tagged , , . Bookmark the permalink.

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