The decision


Case No: UI-2022-006160
First-tier Tribunal No: HU/02126/2021


Decision & Reasons Issued:
On the 28 April 2023






For the Appellant: Mr M Mustafa, Counsel, instructed by Kalam Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 9 March 2023

1. This is an appeal against the decision of First-tier Tribunal Judge Davey promulgated on 8 September 2022. The First-tier Tribunal refused the appellant’s appeal of the decision of the Entry Clearance Officer to refuse entry on 9 March 2021. The facts of that application are set out in the First-tier Tribunal judgment.
2. The appellant raises three grounds of appeal with a number of different parts. Ground 1 is that the FtT failed to make findings on material matters, ground 2 that the FtT mischaracterised the evidence, and ground 3 that the errors discussed in grounds 1 and 2 infected the First-tier Tribunal’s proportionality assessment as, inter alia, the balancing exercise was not conducted fairly.
3. I turn firstly to ground 1. Ground 1 is split into a number of different parts from a. to e. It is unfortunate there is no reference to any of the guidance which we were referred to in the hearing pleaded in the grounds. In essence, the appellant contends that the First-tier Tribunal failed to make material findings in relation to suitability requirements under paragraph 9.8.2. of the Immigration Rules, and then secondly in relation to paragraph S-EC.1.5. of the Immigration Rules and also in relation to S-EC.3.1. Paragraph 9.8.2. of the Immigration Rules reads:
“An application for entry clearance or permission to enter may be refused where:
(a) the applicant has previously breached immigration laws; and
(b) the application was made outside the relevant time period in paragraph 9.8.7; and
(c) the applicant has previously contrived in a significant way to frustrate the intention of the Rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding”.
4. The argument put forward by Mr Mustafa is that paragraph 9.8.2. is a discretionary provision and that the Home Office in their decision letter dated 9 March 2021 did not exercise that discretion. We do not agree. In the decision letter it is set out in detail a number of bullet points taking through all of the issues that this appellant has had difficulty with the UK immigration authorities. The Secretary of State says:
“I am satisfied that part 9.8.2(a) and (c) is applicable in your case because of the following factors:-
(1) You entered the United Kingdom on 23/12/2009 with entry clearance on a Tier 4 Student visa valid from 10/12/2009 to 31/08/2011.
(2) Immigration Enforcement Officers conducted a visit to 156 Meadow Lane on 22/12/2014, you were encountered trying to exit these premises via the back door.
(3) The Enforcement Team completed rapid checks confirming your real identity, nationality, the reason for your entry into the UK as a student on a Tier 4 visa and that on 07/10/2014 you submitted an application for Leave to Remain as an unmarried partner, which was refused with no right of appeal on 05/11/2014. As this information was put to you, you confirmed this to be true.
(4) You were arrested on 22/12/2014 by the Enforcement Team as an over stayer having breached immigration rules and consequently held in detention for further investigations due to you being considered too high a risk of absconding.
(5) You claimed to Immigration Officers to have been living in the property with your partner and her 2 adult children for 2 months. Following a search of the premises they found little evidence to confirm this, very few clothes, no form of ID or a wallet. You did state you had a bank account with Lloyds bank but your bank cards were with your partner.
(6) You were also asked at that time if you had ever used an alias name, you stated you had never heard the name before that the Immigration Officer mentioned to you, however, our Home Office records noted you attempted in September 2013 to make an application for naturalisation as a British Citizen by using a false identity along with a false passport, the fake passport was retained by the Home Office.
(7) On 22/12/2014 you submitted an application under Article 8 of the Human Rights Act, this application was refused on 09/01/2015.
(8) On 03/03/2015 – you submitted a pre-action protocol which was considered but refused on 30/03/2015.
(9) On 15/04/2105 East Midlands Police submitted a criminal investigation report to the Crown Prosecution Service naming several alleged crimes against you, which included fraudulent loans to the sum of £40,000 that you took out using an alias name with a false passport, this alias name being the one you denied ever having heard of when questioned by the Immigration Enforcement Team on 22/12/2014.
(10) On 04/06/2015 the lenders of all the fraudulent loans you took out under your alias name had agreed to write off their losses therefore the police decided to take no further action which as a result left you barrier free for removal from the UK.
(11) On 10/06/2015 you were served with removal directions to leave the UK on 08/07/2015 and were to be accompanied by escorts.
(12) On 07/07/2015 the Home Office received a letter from your legal representatives stating a removal at this time would breach Article 8 of the Human Rights Act as a Judicial Review had been lodged against the refusal of your Article 8 Human Rights application, therefore your removal from the UK set for 08/07/2015 had to be cancelled pending the outcome.
(13) On 28/08/2015 the Judicial Review you lodged was refused as the application put forward was found to be totally without merit.
(14) On 30/09/2015 further removal directions were served to you with a removal date set for 08/10/2015.
(15) On 09/10/2015 you submitted an application via your representative for Immediate Indefinite Leave to Remain, this application was rejected and your representatives submitted a further statement which was referred to our OSCU (Operation Support and Certification Unit) for consideration but rejected on 17/10/2015, leaving your removal directions valid and in place.
(16) On 18/10/2015 you were removed from the UK with escorts and at public expense”.
The letter goes on to say:
“You overstayed your Tier 4 student visa by 4 years 7 weeks, had to be continually detained due to being deemed at very high risk of absconding. You have applied deception in an attempt to gain naturalisation as a British Citizen using a false passport and identity and fraudulently took out several high value loans again using a false identity with a false passport. You also submitted frivolous applications and a Judicial Review in order to try and impede the removal process. You were removed at public expense with escorts.
Given the above facts, I am satisfied that you have previously contrived in a significant way to frustrate the intentions of the Rules. This application was referred to an Entry Clearance Manager prior to being refused and application of Part 9.8.2(a) & (c) was agreed”.
5. Mr Mustafa’s point is that there is no mention there of the Secretary of State saying “and I refuse to exercise my discretion” whereas later on in the refusal letter there is, albeit erroneously mentioned, a discretion in relation to other parts. However, it is implicit from the detailed reasoning of the refusal letter that no discretion was going to be exercised in favour of the appellant. There is no need for the Secretary of State on every occasion to identify they have decided not to exercise discretion where it is plainly the case that no discretion was being exercised in favour of the appellant.
6. In any event, the next issue Mr Mustafa dealt with was in relation to Section S-EC of Appendix FM, and particularly 1.5. It is agreed that S-EC.1.5. is a mandatory refusal provision unlike 9.8.2. S-EC.1.5. says:  
“The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance”.
Mr Mustafa has referred to the Home Office guidance entitled Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission, version 2.0 dated 10 November 2021 and also in relation to his other grounds in relation to the guidance entitled Suitability: previous breach of UK immigration laws, version 4.0 dated 11 October 2021. We have taken those into account in coming to our determination. Mr Mustafa asks us to read across from that guidance of 10 November 2021 to say that S-EC.1.5. is analogous to the guidance on non-conducive grounds for refusal. The guidance reads at page 5 that:
“Many types of offending or reprehensible behaviour can mean that an individual’s presence in the UK would not be conducive to the public good, and many factors will weigh into this such as:
the nature and seriousness of the behaviour;
the level of difficulty we could experience in the UK as a result of admitting the person with that behaviour;
the frequency of the behaviour;
the other relevant circumstances pertaining to that individual”.
It goes on to say:
“Other examples of situations where a person’s presence may be non-conducive to the public good include the following”.
“The list is not exhaustive. In all cases, you must consider what threat the person poses to the UK public. You should balance factors in the individual’s favour against negative factors to reach a reasonable and proportionate decision”.
7. In our judgment this is a paradigm example of an appellant who is not conducive to the public good being admitted to the United Kingdom. This is an appellant who has overstayed for a significant period of time and in order to try and deceive the immigration authorities and stay in the United Kingdom longer, he has made an application using a false passport and a false name. There have been investigations in relation to criminal conduct which, although not proved, does not assist the appellant. It is enough in and of itself for an overstayer using a false passport and false identity to make an application in a clear and deliberate breach of UK Immigration Rules to be refused entry. It is clearly designed to frustrate the UK immigration process, it is clearly designed to fraudulently deceive the Home Office in granting leave which is not entitled and on a false basis. There is nothing wrong with the decision letter in that respect. The fact that the judge does not specifically mention 9.8.2. or S-EC1.5. is in our opinion not fatal to this case.
8. The judge in a clear and concise summing up of the appellant’s evidence at paragraph 8 of the judgment says:
“It seems to me there is undoubtedly a shading of his evidence with hindsight and with the realisation of just where his conduct left him in terms of being with his wife in the UK. I accept his evidence that his wife lives on her own in the UK and is lonely without the Appellant. I accept her evidence that she would wish him to be with her”.
That shading with hindsight is clearly made out. The applicant has exercised dishonesty, has frustrated the Immigration Rules and falls for refusal under both S-EC.1.5. and 9.8.2. There is therefore no reason to interfere with the judgment of the First-tier Tribunal.
9. Finally, dealing with ground 2, there is no basis to interfere with the factual findings made by the First-tier Tribunal Judge. Mr Mustafa puts forward that it was for the Secretary of State to make the running in this case but the judge assessed the evidence before them, it was accepted by the appellant he had used a false name, accepted that he had made a false application for and used a false passport and accepted he was an overstayer. The additional matters were not in fact in our opinion necessary but they are there and they also do not put the appellant in a good light. Mr Mustafa explained the appellant did not give evidence in the First-tier Tribunal for reasons of complexity of organising evidence by video but it is not therefore open to the appellant to criticise the findings of fact of the District Judge on his credibility given that the only evidence before the First-tier Tribunal was the written statements of the appellant and his family. There is nothing we can see that leads to a requirement to interfere with the factual findings of the judge or that the decision should be overruled.
10. In relation to ground 3 that is parasitic on both grounds 1 and 2 and Mr Mustafa submits that the errors that he identified would have infected the decision of proportionality.
11. However, in our judgment the appellant falls for refusal under 9.8.2. and S-EC.1.5. and we therefore see no error of law in the First-tier Tribunal judgment and we dismiss this appeal.

Ben Keith

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber