Tribunal decisions

The decision

IAC-CH-SA-V

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01355/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th May 2016 (Error of Law)
And 18th October 2016
On 21st November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
ECO
and

G F
(anonymity direction MADE)
Claimant

Representation:
For the ECO: Mr T Wilding, Home Office Presenting Officer
For the Claimant: Mr G Lee (Counsel)

DECISION AND REASONS
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. Unless and until a Tribunal or a court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Claimant and to the ECO. Failure to comply with this direction could lead to contempt of court proceedings.

1. The ECO (ECO) appeals with permission a decision of the First-tier Tribunal Judge Andonian allowing the Claimant's appeal against the ECO's decision to refuse him entry clearance to be reunited with his wife and seven children present in the United Kingdom with refugee status.
2. The ECO Claimant was the ECO before the First-tier Tribunal, and the Sudanese national was the Claimant. For ease of reference I use ECO and Claimant to refer to the parties.
3. On 18 November 2013 the ECO refused this Sudanese national's application for entry clearance to be reunited with his wife and children in the UK on four grounds.
(i) Firstly, with reference to the substantive family re-union Immigration Rules' requirements at paragraph 352A(i), (iv):
"I am not satisfied that you are the spouse of a person granted refugee status in the United Kingdom, and that you and your Sponsor intend to live together in the United Kingdom."
(ii) Secondly, with reference to the mandatory documentary requirements at paragraph 320(3):
"I am satisfied that you have failed to satisfactorily establish your identity and nationality. I am therefore not satisfied with your identity."
(iii) Thirdly with reference to the general reasons for refusal mandatory requirements at paragraph 320(7A):
"I am satisfied that the Ugandan passport presented as (sic) a genuine document. However, it is a genuine document and it incorporates false information." KB (Para: 320(7A): "False Representations") Albania [2009] UKAIT 00043.
(iv) Fourthly with reference to the general reasons for refusal discretionary ground at paragraph 320(19):
"You are the leader of the Justice and Equality Movement (JEM). I am aware from official reporting and media reporting that JEM continues to be involved in fighting against the Sudanese government forces. As the head of JEM, and prior to you taking the leadership, you have played a significant role in the conflict in Darfur. In view of the above, I am satisfied that your exclusion from the United Kingdom is conducive to the public good on the basis of your conduct, character and associations."
4. Judge Andonian resolved the family reunion disputes concerning Rule 352A (i) and (iv) in favour of the Claimant. The Grounds of Appeal to the Upper Tribunal did not extend to encompass those findings. Judge Andonian resolved the mandatory grounds of refusal Rule 320 (3) and 320(7A) and the discretionary grounds of refusal at Rule 320(19), in favour of the Claimant. The Judge allowed the appeal on Immigration Rules grounds. The grounds of appeal to the UT concern the Judge's conclusions in respect of the Rule 320 parts of the ECO's decision, and argue that, in any event, the Judge did not have jurisdiction.
5. Following an initial hearing in the Upper Tribunal [UT], and in a decision dated 20 May 2016, I concluded that the judge had erred in allowing the appeal on Immigration Rules grounds. I found that the Judge did have jurisdiction. I found the mandatory requirements of 320(3), as they were at the date of decision, and they have changed since, amounted to a mandatory strict formal documentation requirement, which, it was conceded, the Claimant had not met. As a result, the rules-based grounds of appeal before the First-tier Tribunal were bound to fail, despite the positive findings in relation the subsistence of the marriage relationship. It followed that Judge Andonian's allowing of the appeal on rules-based grounds was vitiated by error and could not stand. Turning to the other rules-based parts of the decision, in respect of the consideration of 320 (7A), I found an error of law in failing to resolve and reason the factual dispute as to whether the Ugandan passport was a false document. In respect of 320(19), I found an error of law in the conflation of the Article 1F test with the paragraph 320(19) test. The full reasons are set out in that decision and need not be repeated here.
6. I relisted the matter to remake the decision in the UT, including determining the outstanding factual dispute as to whether the passport was a false document. In light of Judge Andonian's unchallenged resolution of the family reunion dispute in favour of the Claimant, the issue of Article 8 family and private life rights remains live. In those circumstances, both representatives recognised that if I found for the ECO on 320(3), as I have done, 320(19) is not determinative, and the dispute ultimately falls to be resolved in an Article 8 consideration. The Article 8 assessment must start with a correct evaluation of the rules-based position, including of the mandatory refusal provisions at 320(7A), and the discretionary refusal provisions at 320(19). At the commencement of the rehearing in the UT, I set out the above as the structure of my decision-making task and the representatives were in agreement with that approach.
Background
7. I set out my introduction from the error of law decision to provide the background information to this case.
"2. There is a lengthy history with a number of unusual features. This Claimant entered the United Kingdom in 2006 and made a claim for asylum. The ECO refused the asylum claim but granted 6 months' discretionary leave on 27 October 2007, affording no right of appeal. During the currency of that leave the Claimant made a second claim for asylum, the decision which followed has been subject to successful challenge on more than one occasion, so that at what was to become a significant turning point in the Claimant's case: 2012, he still awaited a lawful decision in respect of the Asylum claim, but also in respect of variation of his application based on a "legacy policy" as well as accumulating 6 years continuous residence under the discretionary leave policy.
3. The SSHD is, to say the least, unhappy about the Claimant's involvement in the Sudanese civil war. Efforts to decide the case against the Claimant because of this history have been thwarted by errors in her consideration. This second asylum claim has been repeatedly returned to her for further consideration. The Claimant has been determined not to have fallen foul of Article 1F (c) of the refugee convention. The asylum claim remains undetermined, and is the subject of proceedings in the High Court currently, apparently at the instigation of the Claimant in order to prompt a "lawful decision". The basis of that case and matters arising from his presence abroad are not germane to my consideration save as background of the chronology.
4. Following making the second claim for Asylum the Claimant travelled extensively, initially on his previous issued Sudanese passport, now expired, and in any event lost in the keeping of the ECO. He has also been afforded travel facilities by the UK Government, sometimes at the direction of the Courts, and sometimes through Ministerial intervention. On one occasion in March 2012 his return to the UK was facilitated, even though the issued travel document had expired. The Claimant has managed to participate, as the leader of the Justice and Equality Movement, in the Sudanese peace talks.
5. Having afforded travel facilities to the Claimant in 2012 the ECO then failed, later in 2012, to issue him with a new travel document. On the evidence that refusal was maintained after Mr Cameron acknowledged the Claimant's beneficial role in the peace talks and his assuring him that a travel document would be available to attend pending peace talks. In the event nothing was forthcoming, and having been offered passport facilities by the Ugandan Government in order to be able to attend the said talks, the Claimant was provided with a Ugandan passport. He used the passport to travel and participate in the peace process, leaving the United Kingdom on 24 July 2012. In October 2012 the Claimant asked the ECO to permit him to return to the United Kingdom only to find that his request was refused. He has been abroad ever since.
6. On 13 February 2013 meantime, the Claimant's wife and seven children were granted refugee status here.
7. On 19 August 2013 the Claimant made the family reunion application the subject of this appeal."
The 320 (7A) Dispute
8. Mr Wilding relied on his skeleton argument of 25 August 2016 which, in its material part, reiterates the point taken before the First-tier Tribunal, which is that the Ugandan passport submitted is a "false document" and as such entitles the ECO to a mandatory refusal under 320(7A). He submitted that, because the Ugandan passport stated that the Claimant was Ugandan, and born in Uganda, it was a document that told a lie about itself. It mattered because if it was, in fact, a false document then the ECO did not need to establish that the Claimant had made dishonest use of it, although it was his view that he self-evidently had. A mandatory refusal on false document grounds must carry great weight against the Claimant in the overall Article 8 assessment.
9. Mr Lee for the Claimant submitted that the document was a genuine passport and, whilst it contained incorrect information, even though not included by mistake, it was not a false document. There had been no deception because of the statements of the Claimant, when it was produced, specifically setting out that he was not Ugandan, and was not born in Uganda. There has been no attempt to use the incorrect information to deceive. The ECO had not established a breach of 320(7A).
Discussion
10. I have found the discussion of the mandatory Rule at 320(7A) a useful framework for the consideration of Mr Wildings's submissions going to the dishonesty of the Claimant, as relied upon in the context of the discretionary Rule, as well as Article 8.
11. I begin with the "false document" dispute.
12. The case of AA (Nigeria) v SSHD [2010] EWCA Civ 773 s authority for the proposition that the reference to false documents is a reference to "documents which tell a lie about themselves" (paragraph 67).
13. There is no issue in this case that the passport is issued by the Ugandan authorities, and there is no evidence that deception was used in the obtaining of the document from the Ugandan authorities.
14. Mr Wilding argued that the statements of the passport - that the Claimant is a Ugandan national born in Uganda - mean that it is a document lying about itself. I disagree. The difficulty with Mr Wilding's approach is that it runs counter to the established jurisprudence that he relies on. In KB (Para: 320(7A): "False Representations") Albania [2009] UKAIT 00043, at paragraph 10:
"Para 320(7A) is widely drafted, and in our view it is perfectly clear that as well as applying to false documents, it applies to genuine documents containing false information. The Immigration Judge erred in reading para 320(7A) as though it applied only to false documents. The falsity of the information contained in the passport produced in support of the application is amply sufficient to justify the invitation of para 320(7A)."
15. Contrary to Mr Wilding's submission, a genuine passport containing false information is not regarded in that case as a false document. Although it is capable of coming within 320(7A), it is clear that the ratio of the case is that it is contained within 320(7A) and in the context of the use of the passport constituting a misrepresentation, not as a false document.
16. Indeed, the ECO has clearly not read it that way, given that the reasons of refusal specifically refer to a genuine document containing a false representation, the reasoning being premised on the basis of false representation, rather than the production of a false document.
17. Mr Wilding's reference to the case of Begum (false documents and false statements) [2015] UKUT 41 (IAC) takes the matter no further: it simply reiterates the point that I have set out above:
"A document which is not itself 'false' within the meaning of AA v SSHD [2010] EWCA Civ 773 may fall equally foul of para 320(7A) if it contains a statement that is, to a relevant person's knowledge, untrue."
I.e. untruthful statements in the documents fall within 320(7A) because they amount to misrepresentations. There is no authority for Mr Wilding's proposition that the untruthful or inaccurate statements on the Ugandan passport make it a "false document".
18. As can be seen from my reasoning above, the upshot is that the ECO has to show that the use of the Ugandan passport was, in the context of this application, deceitful. Whereas the law is clear that the deception does not have to be that of the applicant, the circumstances of this case are limited to a consideration of the Claimant's actions.
19. Judge Andonian considered the issue of dishonesty in terms of the misrepresentations contained in the passport. Judge Andonian found no evidence of dishonesty in the context of the use of the Ugandan passport. His conclusions: that the Claimant has never claimed to be a Ugandan, further that in the covering letter submitted with his application he did not assert that he was born in Uganda, but rather that he consistently asserted his Sudanese nationality, are rooted in the evidence. Mr Wilding's skeleton argument recognises the correctness of that position at paragraph 3, when he concedes the accuracy of those findings. Mr Wilding's efforts today put a gloss on the argument, submitting that simply relying on the document in the sense of submitting it to the ECO even whilst presenting an accurate information, was morally wrong because it is a false document, and its use amounts to a deception, so that the Judge was perverse in concluding that there had been no dishonest use of the passport. I am satisfied that the moral culpability argument cannot establish perversity in Judge Andonian's conclusions and if I were remaking the decision today I would reach the same conclusions. I do not know why the passport was produced although I note that in order to make an application there must be a passport. However, given the explanations that accompanied the application and the submission of the passport, it is incoherent to suggest, as the ECO argued, that it was to mislead as to nationality or identity, particularly in light of the fact, as the refusal notice indicates, that the Home office had his original Sudanese passport and accepted his Sudanese identity. Mr Wilding's gloss is, at best, simply further reliance on the false passport point, rather than bringing anything new to the dishonest misrepresentation argument.
20. Mr Wilding sought to persuade me that in the past the Claimant has not been forthright with the Home Office about the travel documents that he possesses. I do not have a full chronology or all of the evidence about the earlier dealing. Mr Wilding did not take me to any specific evidence that established the assertion. It is not for me to wade through the evidence to see if there is sufficient to make the assertion out. I am not in a position to know the truth of the assertion, but the burden is on the ECO, and it has not been discharged. The point falls away.
21. In short, although Judge Andonian fell into error in failing to make a finding as to whether the passport was a false document, I have found that in fact it is not. The Judge's conclusions in respect of the absence of deceit do not reveal any error. The ECO has not established the necessary deceit to substantiate a mandatory refusal. The point is decided in favour of the Claimant.
The 320(19) Dispute
22. Paragraph 320(19) is as follows:
"(19) The immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person's conduct (including convictions which do not fall within paragraph 320(2)), character, associations, or other reasons, make it undesirable to grant them leave to enter."
Discussion
23. It is self-evident that a test in respect of the international protection regime of the Refugee Convention is a setting which cannot be equated with an application for entry clearance under the family reunion provisions of the Immigration Rules. Issues relating to international protection are different in nature and character from Immigration Rules based entry and the qualified Article 8 rights of the ECHR.
24. The task for the Judge when considering an ECO's reliance on the rule is to examine the evidence of the alleged conduct, to decide whether it meets the threshold and, if it does, to move on to consider the exercise of discretion.
25. In that context, I take into account the IDI which states at RFL9.1:
"RFL9.1 When can I refuse on character, conduct or associations - paragraph 320(19)?
Paragraphs 320(19) and S-EC.1.5. provide for a discretionary refusal of entry clearance on account of a person's conduct, character or associations. ECOs must be aware that there maybe more than one factor which would lead to the application being refused on character, conduct or associations grounds. While a person does not necessarily need to have been convicted of a criminal offence, the key to establishing refusal in this category will be the existence of reliable evidence necessary to support the decision that the persons' behaviour calls into question their character and/or conduct and/or associations such that it makes it undesirable to grant them entry clearance."
26. Mr Wilding's argument was, in essence, that the evidence set out in the ECO's bundle showed clearly that the Claimant met the threshold of conduct character and associations necessary for 320(19) and that the evidence also showed that to exercise discretion in his favour was unthinkable.
27. I asked Mr Wilding to make clear exactly upon what matters he was relying. He took me to evidence relied upon by the ECO at [334] to [344] of the ECO's bundle: The Special Cases Unit Research and Analysis report. This is the State's own report. Mr Wilding clarified that he was relying on matters which arose after the Claimant became the leader of JEM in January 2012, following the death of his brother, rather than anything prior. Further, as the Claimant was in the United Kingdom until March 2012, and it was matters after that date that were particularly troubling.
28. Looking at the report in detail, there is reference to the SRF: The Sudanese Revolutionary Front. The group acts as an umbrella group. The Claimant is its vice-president for external affairs. The JEM (Justice and Equality Movement) faction of the group constitutes a significant component of the SRF.
29. The report states in summary:
(a) JEM has been described as the largest and most militarily capable insurgent group in Sudan's Darfur region with the objective of political and economic reform. JEM has consistently refused to join peace talks with other militant groups in favour of demanding one to one talks with Khartoum government, something the latter has refused. However, without the participation of the movement in peace talks, such conferences will only have limited impact on the conflict. (336)
(b) In January 2012, the Claimant said on radio that he would continue his brother's work to overthrow the Sudanese government.
(c) In 2012, JEM were responsible for "the continued detention of civilians from a Sudanese engineering company kidnapped in West Darfur in June 2012 and then released in September 2012."
(d) It was not until September 2012 that JEM issued an order banning the recruitment and use of child soldiers, and the later evidence is that they were not demobilised.
(e) SRF/JEM were involved in fighting in North Darfur in September and October 2012, including rocket and heavy artillery attacks on El Fasher Airport and shelling of the city of Kadugli in South Kordofan.
(f) In December 2012, JEM kidnapped a senior military officer in Sudan's White Nile.
(g) SRF/JEM continued fighting in South and North Darfur and South and North Kordofan.
(h) In January 2013, JEM militants allegedly clashed with the Army in Sudan's South Darfur.
(i) In February/March 2013, JEM were engaged in fighting in South Sudan, fighting Sudanese forces in South Kordofan and North Darfur.
(j) In April 2013, the Claimant's faction of JEM, fought the Bashar faction of JEM. The latter had signed the DDPD, a position which the Claimant's faction of JEM opposed.
(k) In May 2013, JEM continued fighting under the umbrella of the SRF, publicly stating their objective of toppling the current regime.
(l) In July 2013, attacks on government forces in both North and South Kordofan were undertaken by JEM.
30. The report sets out how the international community view the Claimant and his organisation.
(a) With regard to the Claimant's own actions, the United Nations Panel of Experts' report of February 2013 confirmed that JEM operated a large base of about 800 fighters inside South Sudan and that the Claimant had travelled to the region from London on a passport provided by Uganda, and had made frequent visits to South Sudan. The report also notes that the Claimant had previously been interviewed by the panel whilst he was in the United Kingdom in June 2012 and that he had also flown to Entebbe using a Ugandan passport in July 2012.
(b) Following the Claimant's application for entry clearance, he attended a conference along with the leader of the Sudan Liberation Movement, senior members of the SRF and representatives of the United Nations mission in Darfur in Arusha. The parties reiterated their commitment to peace in the context of a negotiated settlement in a holistic solution rather than those set out in the DDPD. The SRF coalition has a clear objective of overthrowing the Khartoum government using all available means, including force. The United Nations concludes that the fighting that has resulted constitutes a major obstacle to the implementation of the DDPD. and the Claimant urges the international community, in November 2012, not to assist with the financing of reconstruction projects in Darfur.
(c) The US State Department report for 2012 accuses all parties to the conflict in Darfur, South Kordofan and Blue Nile States, of perpetrating torture and other abuse including the obstruction of the work of humanitarian organisations, the displacement of civilians and the abuse of internally displaced persons. In respect of Darfur, the US State Department report states that during the year (all) those fighting in the area killed other combatants and civilians and also raped civilians.
(d) In July 2013, the United Nations Security Council called on all the non-signatory armed groups, of which the Claimant's is one, to refrain from impeding the implementation of the (DDPD), and in that context condemned the killing of Mohammed Bashar and other members of his splinter movement who had signed the DDPD, and the taking captive of several others, by the forces of JEM/(Claimant's name).
(e) In short, the United Nation's Security Council deplores armed groups such as JEM/(Claimant's name) for refusing to join the DDPD process and condemns their actions aimed at forcing the overthrow of the government of Sudan, and urges them to adopt the basis of the DDPD and agree upon a permanent ceasefire.
31. Mr Wilding took me to a section headed "Evidence of international crimes". He explained that, although the evidence for the matters therein dated back to 2003/2004 and, given the finding that there was not reliable evidence of individual responsibility necessary to find an Article 1F ground of exclusion, as per the Special Cases Directorate - War Crimes Case Research and Analysis report conclusion prepared on 17th May 2012 and appearing (excerpt of conclusion only) at page 221 of the Claimant's original bundle, so that individual culpability was not relied upon, it gave a flavour of the organisation, and so the associations of the Claimant. The report notes that overall the evidence looked at referenced rebel forces from JEM being responsible for serious violations of human rights and humanitarian law, which could amount to war crimes. In particular, murder of civilians and pillage were found to exist, although not to be widespread and systematic, as were allegations of attacks on civilians and civilian villages, unlawful killings, and taking of hostages including relief workers.
32. In February 2012, JEM abducted 50 peacekeepers whom the organisation confirmed had been taken hostage because of having entered territory of JEM without permission. They were released within 48 hours.
33. JEM abducted five Turkish engineers in North Darfur in September 2011 and subsequently released them in 2012.
34. The US State Department report for 2012 confirmed that JEM continued to hold six Sudanese hostages and continued to recruit child soldiers.
35. The Claimant has been raising funds for his organisation in the United Kingdom.
36. Although the Claimant has travelled abroad to take part in peace talks, they have not resulted in JEM signing a peace agreement.
37. Mr Wilding submitted that the conclusions in the assessment and recommendation, that the Claimant is a leader of a violent insurrectionary army committed to overthrowing the Sudanese government, is established. The final conclusion is as follows:
"The commission of international crimes by JEM forces does appear to be relatively sporadic. However, there is no evidence to suggest the subject has done anything to punish the perpetrators. It is considered that the subject has been aware of the actions undertaken by his forces. He has held the leadership of the group for what is considered to be a significant period, including a leading position in the SRF during which time international crimes have been perpetrated in all the States of Darfur. He confirmed that he has contact with JEM field commanders. The UN has stated that JEM/SRF continues to be a major obstacle to peace in Darfur."
38. In response Mr Lee, again argued that the State's decision that Article 1(F) did not apply was determinative. There was an express exclusion in 352 for those whose conduct fell short of the Article 1F threshold in the substantive rule and no other provision for exclusion was in the Rule itself. That should be the full extent of the ambit to exclude. Rule 320(19) should not apply because to apply it circumvents Rule 352. Accordingly Rule 320 (19) has no relevance. He suggested that as the Rule had no relevance to other types of spousal applications, eg under Appendix FM. It should not have relevance here. Far from being in a worse position than others, as the Claimant is, the usual view is that refugee spouses should have entry facilitated, and have a less strict regime.
39. Mr Lee's valiant effort is entirely misconceived. Whilst, under the Rule, conduct found sufficient to warrant an Article 1F exclusion is very likely to also fall foul of 320(19), it cannot be said, simply, that the reverse position is true. Mr Lee invited me none the less to adopt the approach of Judge Andonian, when, at [19] of his decision, he regarded the ECO's reliance on 320(19) as a means of circumventing the requirement at 352A(iii,) which states that the applicant for entry clearance must show that s/he would not fall for exclusion under Article 1F. Mr Lee invited me to interpret the rules as meaning that exclusion could only be on that basis. That approach is in error, mistaking the legal framework. The rule at 320 specifically excludes reliance on general grounds of refusal in some categories, but not in applications under 352A. Nor is Mr Lee right to say that if this was an ordinary Appendix FM spousal application instead of a paragraph 352 refugee reunion application, that the issue would not arise, so that the rule should be read down to equate "conducive" with Article 1F on that basis. It is right that Rule 320 states that subparagraph (19), along with others, are dis-applied in Appendix FM applications, however the requirements at Appendix FM have equivalent suitability requirements. Mr Lee has provided no authority that those here with refugee status can expect less stringent provisions in respect of "conducive" issues, than other spouses or partners, and I can see no reason for that to be the case.
40. Mr Lee took me to paragraph 6 of Judge Andonian's decision where the Judge notes the Claimant's evidence that the Sudanese government forces have been regarded as corrupt and have been accused of genocide, even by the United Kingdom government. He reminds me that Judge Andonian took a robust view concluding:
"I take the view that the Claimant was endeavouring to bring about a better life for those in the Sudan and was protesting against the current corrupt government".
41. Mr Lee submitted that in so concluding, Judge Andonian must have accepted the Claimant's evidence set out in the Judge's decision that the Sudanese had embarked on a campaign of disinformation seeking to persuade governments that indigenous-based Darfuri groups were terrorists and criminals, rather than defending the indigenous people of Darfur from genocide, and further that there had been efforts to split the Darfuri rebel groups by promising positions of power in a new government. Mr Lee pointed out that the Judge goes on to note that the Claimant's wife and children were granted asylum based on threats to the Claimant from the Sudanese regime, and that the Sudanese regime had made unfounded allegations against him which had been thoroughly investigated by a number of independent bodies and rejected.
42. Mr Lee submitted that in marked contrast with the ECO's view of the Claimant is the evidence that David Cameron urged that he be issued with a travel document on the basis that he was viewed as a positive force for change, and that he be facilitated to attend the peace negotiations in 2012. Contrary to the ECO's position in this application, in the past she has not only provided the Claimant with interim travel documents to allow him to attend meetings abroad, but also facilitated his re-entry to the United Kingdom as recently as 2012, despite the fact that his travel document had expired, and despite much of the evidence upon which she now relies.
43. Mr Lee submitted that the Ugandan authorities plainly considered him to have an essential role, because they gave him a passport and have facilitated his travel and residence in their country.
44. In addition, there is the character reference of his witness, a former British army officer who, on his own evidence, supports the Claimant's opposition to the Sudanese government, and describes the Claimant as being instrumental in drawing up policies for JEM which condemn the use of child soldiers and are considered by the officer to be balanced and moderate.
45. In respect of 320(19), the ECO's reliance on the Claimant's use of deception in the immigration chronology falls away in light of my findings above.
46. The significant issue is whether the evidence of the Claimant's involvement in JEM is sufficient to justify exclusion on conducive grounds.
47. The ECO's submission is that even taking account that the Claimant has not been shown to have any individual responsibility in respect of the matters assessed in the ECO's report of May 2012, or as at the date of decision, which is the relevant date here, i.e. November 2013, the simple fact that he is, a joint founder and longstanding member of the JEM leadership, taking his place at its pinnacle following the death of his brother in 2012, is the concern, because of the nature of the organisation in light of its aims, and its history of violent insurrection.
48. The ECO has concluded that to allow the Claimant entry would not be conducive to the public good. I give weight to her view, given her responsibility for international affairs. However, I am not bound by it, and I must make up my own mind. Mr Lee invited me to take a positive view of the Claimant's involvement in politics, as David Cameron had done and as reflected in Judge Andonian's assessment. He did not seek to persuade me that the Judge's conclusions were findings of fact that bound me. I have already explained why Judge Andonian's assessment of the Claimant made in the context of whether conduct warranted exclusion under Article 1F and an erroneous misdirection that it was not open to the ECO to revisit political involvement so that using 320(19) was an unlawful method of circumventing the substantive Rule at 352A. I am satisfied that his evaluation is infected by that erroneous perspective.
49. Whilst I count positively the Prime Minister's endorsement of his attitude and role in the Sudanese peace talks in 2012, that position is weakened by the evidence that the United Nations clearly finds that his organisation, in the end, has come to stand in the way of peace, despite the optimism with which the then Prime Minister had regarded him. Politics is a changing environment and what a politician holds good at one moment does not necessarily hold good subsequently. Further the travel documentation dispute in which Mr Cameron's comments were made is a context of the Claimant seeking facilitation of travel to enable him to leave the UK, including to attend to matters concerning his brother's death and participate in peace talks, is in the context of the UK's obligations not to unduly interfere with people's rights to live their lives whilst processing their asylum claims, and so involved international protection issues. That is an entirely different kettle of fish from the consideration of whether someone should re-enter, not in the context of an asylum claim, but of an application under the rules, and where the question is whether or not it is not conducive, and if not, whether family and private life matters in any event require it.
50. Mr Lee argued that for the Claimant to take a different view from the United Nations as to the way forward for peace, and to refuse to sign up to the DDPD, is not a reason to exclude. However, that is to cast the consideration too narrowly, and in particular gives no regard to the evidence that the use of force makes JEM an insurgent militia, not simply an opposing party. Similarly, that the Ugandan authorities are prepared to facilitate his arrangements in the context of peace talks, is no more than a recognition, in line with the evidence of the ECO's report, that peace without the SRF, and in that context JEM, is unlikely because of the size of the areas and populations of where they are in control.
51. Standing back and looking at the evidence in the round the negative evidence outweighs the positive. the Claimant's alleged non-approval of actions of JEM, such as the use of child soldiers, does not distance himself from the organisation: he is the head of it, he is inseparable from it. As at the date of decision the Claimant was the pinnacle of JEM. Whatever the ills of the Sudanese government, JEM's clear commitment to overthrow the government by any means necessary, its engagement in armed insurrection, as well as the evidence that JEM, as run by the Claimant, is considered by the United Nations as an obstacle to peace because of the reality of its response to the peace negotiations, is sufficient to satisfy me, on balance, that to grant him entry clearance is not conducive to the public good. In short it would mean that he could live in the UK, with the opportunity to conduct his work as the leader of JEM, i.e. heading an insurrectionary military force, from the UK. That is a position which I am satisfied is not conducive to the public good.
52. There remains the question of discretion. In light of the preserved findings in respect of family life, and the interference the decision poses to the intended future development of family life, the parties are in agreement that Article 8 is engaged. It is debateable that where, as here, the Rules based appeal must fail in any event, the issue of discretion, argued for on Article 8 grounds, is better considered in this context, or in the context of Article 8. The general grounds of refusal rules contain a discretion. The question of the exercise of discretion must include an assessment and evaluation of all the relevant factors brought forward by the parties, including those associated with Article 8, and the outcome must be Article 8 compliant, which in the instant case, the representatives' agreed, amounts to a consideration of the fifth question in Razgar, that of proportionality. Certainly it was not suggested to me that when considering the position under Rule 19, that if I did not find it right to exercise discretion in favour of the Claimant, that there was something in his or his family's circumstances that warranted a different result under Article 8 ECHR.
53. I bring forward my findings in respect of the Rules at 320(19) above.
54. I return briefly to the mandatory refusal under 320(3). In that regard, I reject Mr Wilding's contention that the inability to meet this strict formal documentary requirement, because the ECO had retained his Sudanese passport, operates to carry significant weight in the exercise of discretion. Mr Wildings insistence that the failure to meet the formal documentary requirements should carry determinative weight in an exercise of discretion even allowing that I found all other arguments unestablished is merely a distraction, which I deal with merely because he would not let it go. Even in 2013, which is the relevant date of consideration here, the importance of qualified Article 8 rights was plainly understood to the point that a formal documentation requirement would not, reasonably, be enough, without more, to prevent family reunion. The Rule makes no provision for applications from those who have documentary difficulties. I am fortified in my approach by the fact that it has since been amended to do so.
55. In respect of the mandatory grounds of refusal under 320(7A), I found against the ECO to the point that I find that the Claimant has not exercised deception in the context of this application relating to the use of the Ugandan passport. I find Mr Wilding's assertion that I should consider it adverse that the Claimant chose to have and use a Ugandan passport which has false misrepresentations on it adds nothing in this context, not least because it receives adequate consideration in the Rules.
56. I have not been taken to anything specific in the family circumstances as at November 2013, the date of my consideration, that carries significant weight in the evaluation. The skeleton argument does not make reference to any family circumstances, but only the history of the application, and the finding that there has been no dishonesty in the provision of the passport, and the technical nature of the Rule 320(3) refusal. .
57. In assessing the family and private life rights of the Claimant and those of his family I bring forward the positive findings in respect of Rule 352A, to the point that the Claimant meets the requirements of the Immigration Rules of family reunion with a family member with refugee status. He meets the requirements of the rules relating to the subsistence of his family life. He has a longstanding relationship with his wife, and they have seven children. He lived with his wife whilst he was in the UK. Their preference and intention is to cohabit in a marital home in the UK.
58. The relationship has been conducted in the context of significant periods of separation not least whilst the Claimant has attended to his role in JEM, and more recently, once his travel document expired, been unable to return to the UK.
59. The relationship has continued after the Claimant left the UK in 2012, and has been maintained by the usual methods of modern communication between his leaving and the date of decision in 2013.
60. As at the date of decision, I am told that his wife and seven children, all adults, are here with refugee status, from which I presume that they had all been granted limited leave, as refugees, of 5 years, and that they all anticipate as at December 2013 that, if they so choose, the UK will likely be their permanent home.
61. They have shown themselves able to travel to see the Claimant in third countries.
62. I do not treat the finding that the Claimant has not been excluded under Article 1F as a positive matter. Similar to circumstances where the fact that one has not committed a crime, or can speak English, or is able to maintain oneself, it is at best a neutral matter reflecting an absence of adverse evidence rather than amounting to a positive accolade or reason to warrant entry.
63. Standing back and looking at the evidence in the round, including the reasons why I have found that exclusion is conducive to the public good, and bearing in mind the qualified nature of the Article 8 obligation, I am satisfied that refusing entry clearance so as to enable the Claimant to live here, including to enjoy his family life in this country, as he and his wife and family would prefer it, is proportionate.
64. Taking all matters into account, and for the reasons set out above, I conclude that the negative factors outweigh the positive and decide not to exercise discretion in favour of the Claimant.
Notice of Decision
65. The Secretary of State's appeal is allowed. The decision of Judge Andonian allowing the Claimant's appeal is set aside. I remake the decision dismissing the appeal.

Signed Date

Deputy Upper Tribunal Judge Davidge