Suitability Criteria for Entry Clearance are ‘Rather Clumsy’

uspaspoort-jpgEntry Clearance Officer – United States of America v MW (United States of America) & Ors [2016] EWCA Civ 1273 (14 December 2016)

Entry clearance for a foreign national with significant previous criminal convictions is dealt with under paragraph S-EC.1.4. of Appendix FM of the Immigration Rules. This was the ECO’s appeal against the Upper Tribunal’s finding that the refusal of entry clearance to an American citizen from California was unjustified and disproportionate because he had served sentences of imprisonment for offences committed in the US. The Court of Appeal held that the intention behind paragraph S-EC.1.4. was to emphasise the public interest in maintaining refusal of entry clearance. Allowing the ECO’s appeal, Sir Terence Etherton MR, Lady Justice King and Lord Justice Irwin concluded that “very compelling factors” would usually be needed to outweigh the public interest in maintaining refusal. Born in 1968, the appellant, MW, was convicted of an offence in 2005 and was sentenced to four years’ imprisonment. Another conviction followed in 2008 and his reoffending led to an additional 16 months’ imprisonment. He was released on parole soon afterwards and in 2011 he was fully discharged from parole. In 2012, he married his sponsor Lisa Whitby Flack who is a British national with longstanding service as a fire fighter and deep family connections and home ownership in the UK. She also has close relationships with MW’s three children.

However, age restrictions would disallow her from working as a fire fighter in America – so it is impractical for her to move there. MW’s children are free to come to the UK. Their mother consents to them living with Lisa Flack whose family is also content with such arrangements. Nothing suggests that they live in unsatisfactory conditions in America but they would be able to attend school in the UK. The cases fell to be considered under paragraph S-EC.1.1. to 1.4. Refusing the applications, the decision-maker did not find MW’s circumstances to amount to exceptional circumstances. After considering article 8 of the ECHR the refusal letter concluded that the decision (8 April 2013) was justified and proportionate because the public interest outweighed human rights considerations.

Section S-EC: Suitability-Entry Clearance

Under paragraph S-EC.1.4.(a), MW’s exclusion from the UK was considered to be conducive to the public good because he was convicted of an offence for which he was sentenced to a period of imprisonment of at least four years. The ECO said that the other requirements for entry had been fulfilled and that MW’s children’s applications had been refused as a consequence of his refusal.

Tribunal Proceedings

The First-tier Tribunal allowed the appeals outside the rules. It found that the decision constituted a disproportionate and unjustified breach of article 8. There was consensus that the appeal turned on the proportionality and justification of the refusal of entry, owing to MW’s criminal convictions. The US judicial system had acknowledged that his last offence was not a violent or serious felony. There was no injury or threat of injury to anyone and he acknowledged wrongdoing at an early stage of the criminal process. Evidence since his release from prison on parole showed he remained drug free.

The US family court granted MW a full residence order for his three children. It was satisfied that if they moved to the UK he would ensure contact with their real mother. Likewise, the First-tier Tribunal was similarly satisfied that he was a responsible and trustworthy parent who would ensure the preservation of his children’s well being. Judge Lingam found that authorities such as Gulshan [2013] UKUT 640(IAC), Nagre [2013] EWHC 720, Izuazu [2013] UKUT 45(IAC) and Green [2013] UKUT 393(IAC), applied to the appeals. But despite accepting that the principles from the deportation/removal cases applied to the appeals, she did not start with a preliminary consideration of whether there were “compelling factors” arising in “exceptional circumstances” and she considered the entire claim itself. (See earlier posts on Gulshan, Izuazu and Green.)

In light of the five-part test in Razgar [2004] UKHL 27, she found that refusing entry was in accordance with the law. On the issue of whether the exercise of effective immigration control was proportionate and justified, answering the fourth and fifth Razgar questions she concluded that the decision to deny entry clearance constituted a disproportionate and unjustified breach of article 8. The ECO appealed arguing that Judge Lingam failed (a) to identify an arguable case that there may be good grounds warranting the grant of leave outside the rules under article 8 or (b) to consider whether there are compelling circumstances not sufficiently recognised under the rules to require granting leave under Nagre [2013] EWHC 720 (Admin).

Of course, the ECO ignored directions to file and serve written submissions addressing these concerns. Haddon-Cave J and Judge Clive Lane considered MM (Lebanon) [2014] EWCA Civ 985 (see here) and were particularly attracted to the analysis of Aikens LJ at para 135 where his Lordship reviewed MF (Nigeria) [2013] EWCA Civ 1192 and other authority and shed further light on the subject by holding that where a relevant group of immigration rules do not constitute a “complete code” then the proportionality test will be more at large, albeit guided by the Huang [2007] UKHL 11 tests and UK and Strasbourg case law.

MW argued that S-EC.1.4. provides for a “comprehensive code” in a similar way to the provisions in the rules applicable to those liable to automatic deportation but relevant to those seeking entry clearance. The Upper Tribunal accepted that submission but concluded that S-EC.1.4 does not provide for an “exceptional circumstances” approach.

The First-tier judge’s decision was upheld. Haddon-Cave J and Judge Clive Lane rejected the ECO’s submission that the last sentence of paragraph S-EC.1.4. – “it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors” – must be interpreted as meaning that the tribunal was precluded from considering an article claim unless there were compelling factors and/or exceptional circumstances. The position was untenable and contradicted the wording of the rule itself.

The second ground of appeal – that Judge Lingam failed to consider MW’s “precarious immigration status” during her proportionality exercise – was also dismissed because the ECO recorded that the “relationship requirements” had been met and no suggestion existed that the First-tier Tribunal was wrong about the fact that both parties agreed family life existed.

The Court of Appeal

The ECO abandoned the point that a tribunal was precluded from even considering claim under article 8 unless compelling factors or exceptional circumstances were demonstrated. It was argued that even if compelling factors or exceptional circumstances do not constitute a threshold to entertaining a claim, they nevertheless represent important statements of public policy which have to be expressly considered and addressed before such an appeal could be allowed.

Emphasis was placed on consistency and the point was made that essentially the same approach should be taken whether the case is concerned with entry clearance or with deportation, save where the circumstances dictate a different approach. MF (Nigeria), LC (China) [2014] EWCA Civ 1310, AJ (Angola) [2014] EWCA Civ 1636 and AQ (Nigeria) [2015] EWCA Civ 250 were invoked to stress that decision-makers needed to have close regard to the weight of factors required under the rules to tip the balance of proportionality away from deportation, or here, in favour of entry. Thus, there was a need to attach equal weight to the public interest in refusal of entry under paragraph S-EC.1.4. to that which arose under paragraphs 398-399A in the context of deportation.

Notably, the parties’ differences as to the meaning of the critical final paragraph in S-EC.1.4. became narrower with time. They also provided their views on Hesham Ali (Iraq) [2016] UKSC 60 (see here) where the Supreme Court provided a comprehensive exposition of paragraphs 398 and 399 of the “new rules”. It held that the expression “exceptional circumstances” in paragraph 398 indicates a “departure from a general rule” but does not mean that a test of exceptionality is to be applied. Lord Reed held that the obligation to consider Convention rights is such that even if they are called a “complete code”, the “new rules” do not unilaterally govern appellate decision-making despite repeated dicta to that effect in recent cases such as LC (China) and AJ (Angola). This was so despite the fact that the policies adopted and expressed through the medium of the rules play an important consideration for tribunals considering such appeals.

Apart from the word “very”, the parties agreed that where paragraph S-EC.1.4. applies it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by [very] compelling factors, unless refusal breaches the ECHR or the Refugee Convention 1951.

MW relied on two grounds to resist the ECO’s argument about attaching equal weight to the public interest in refusal of entry under paragraph S-EC.1.4. to that which arose under paragraphs 398-399A in the context of deportation. The first objection was that paragraph S-EC.1.4. simply does not operate in the same way as paragraphs 398-399A. Secondly, it was said that public interest in deportation as expressed in the relevant rules arises through the will of Parliament, since it was rooted in the UK Borders Act 2007 whereas the public interest in refusing entry clearance arises from executive policy, meaning that less weight attaches to it.

Etherton MR, King and Irwin LJJ considered it “wise” of the appellant ECO to abandon the point about paragraph S-EC.1.4. representing a prescriptive threshold to the consideration of an ECHR claim. On the other hand, they were unconvinced by MW’s position regarding the “source” of S-EC.1.4. because the new rules had been laid before Parliament, subject to the negative resolution procedure. Once the dispute about whether it operates as a constraint on judicial consideration of ECHR rights had been put to rest, it became “unnecessary to examine further whether S-EC.1.4 bears quite the authority of other provisions based on primary statute.” It was clear to the Court of Appeal that:

35. … The provisions do represent an authoritative statement of public policy, broadly consistent with the 2007 Act and the “new rules”, and as such must be considered carefully (and expressly) by a Court or Tribunal considering a case to which they apply.

Invariably, the words used in the concluding sentence in S-EC.1.4 were “rather clumsy” and the same wording – again relating to entry clearance – also appears in paragraph 320(2) which had been considered by Richards LJ, McFarlane and Sales LJJ in Sehwerert [2015] EWCA Civ 1141. Etherton MR, King and Irwin LJJ held that the intention behind paragraph S-EC.1.4. was to focus on the public interest in maintaining refusal. The intention was to lay down a general requirement of compelling factors in order to outweigh the public interest in maintaining refusal. The approach accorded with the one taken in deportation cases and MF (Nigeria) emphasised at para 43 that very compelling reasons will be required to outweigh the public interest in deportation in considering the deportation of foreign criminals where the provisions of paragraphs 399 and 399A do not apply. Therefore, in the present appeals, the court held:

37. … We consider that the policy here must carry similar weight, and the emphasis marked by the phrase “very compelling reasons” is appropriate. It would be surprising if the policy in regard to those living abroad but seeking to enter the United Kingdom were to be more liberal than the policy affecting those already resident here.

This was consistent with the decision in Sehwerert. The court accepted that important distinctions in the application of the policy might exist. In deportation matters, UK convictions and sentencing arose within a familiar legal system which could be understood to reliably indicate the severity of the criminality, and hence the magnitude of the public interest in deportation. In entry clearance applications, the same did not apply in all cases. Notably, homosexual acts lawful in the UK were considered criminal acts in many countries and could attract four years’ imprisonment or more and situations of this nature “might well be relevant to an ECHR or asylum claim.” Similarly, an offence connected to proselytising to convert someone from one religious faith to another should also be treated as an exception.

Home office guidance accepts that it would be not be appropriate to apply the policy laid down in cases where a foreign conviction was based on an act which would not be criminal in the UK. The Court of Appeal found that an analogous question arose where a severe foreign sentence was imposed for an act that was an offence in the UK, but where the sentence was wholly disproportionate to any sentence which might be imposed in the UK: for example, a minor public order offence committed in dictatorship. That question was not live in the present appeals “but the point emphasised the need for care in the application of the policy when considering the facts.”

Overall, the decisions of the First-tier Tribunal and the Upper Tribunal were quashed and the appeals were remitted to the First-tier Tribunal for rehearing. However, the term “precarious” immigration status did not assist the court and the appeal was dismissed on that ground.

Comment

Despite having lost some of its initial hideousness with time, Appendix FM of the Immigration Rules is still an obtuse structure whose elements are set for a collision course with the courts. Victory belonged to the ECO in this case and of course we can only wonder what lies in store for the future when the Supreme Court finally hands down the long-awaited MIR judgment in MM (Lebanon) & Ors (see here) and related Appendix FM litigation in Agyarko  (see here). It will be equally interesting to see whether the present case will end up in the Supreme Court.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appeals, Appendix FM, Article 8, Asylum, Children, Deportation, ECHR, Entry Clearance, Immigration Rules, Proportionality, Public Interest, UKBA 2007, UKSC and tagged , , , , , , . Bookmark the permalink.

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