Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01942/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 22nd August 2016
On: 26th August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Entry Clearance Officer, Kingston
Appellant
And

Kemar [W]
(no anonymity direction made)
Respondent

Representation:
For the Appellant: Mr C. Bates, Senior Home Office Presenting Officer
For the Respondent: Mr A. Salam, Salam & Co Solicitors

DECISION AND REASONS
1. The Respondent is a national of Jamaica born 7th December 1983. On the 13th November 2015 the First-tier Tribunal allowed his appeal against a decision to refuse to grant him entry clearance as the partner of a person present and settled in the United Kingdom. The Entry Clearance Officer (ECO) now has permission to appeal against that decision1.
Background and Matters in Issue
2. The Respondent made his application for entry clearance online. Although a copy of that form is still not available the following facts are agreed. He wanted to come to the United Kingdom to live with his wife, [SW]. [SW] is a British national. The couple had met in Jamaica in April 2011 and she had visited him on several occasions thereafter with the couple finally marrying in January 2014. The application was refused on the 12th December 2014. The ECO expressly accepted that this was a genuine and subsisting relationship, and that the financial and English language requirements laid down in Appendix FM were met. The sole reason for refusal was the failure of the Respondent to declare on his application form the facts that he had been, in 2005, convicted of a 'Crime Involving Moral Turpitude' (CIMT) in the United States of America, had been sentenced to a period in prison, and had then, in 2008, been deported from the USA. The application was refused with reference to paragraph S-EC 2.2(b) of Appendix FM:
S-EC.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-EC.2.2. to 2.5. apply.
S-EC.2.2. Whether or not to the applicant's knowledge-
(a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
(b) there has been a failure to disclose material facts in relation to the application.
Although the Respondent's conviction would ordinarily be considered 'spent' it should have been declared on the form because applications for entry clearance are now exempt from the scope of section 4(1), 4(2) and 4(3) of the Rehabilitation of Offenders Act 1974: section 56A of the UK Borders Act 2007 as amended by section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
3. When the appeal came before the First-tier Tribunal the Respondent made a statement to the effect that prior to making his application he had taken legal advice from an attorney in the USA who had advised him that the conviction in the USA was spent and that he need not therefore declare it. He was further advised that the deportation would not be relevant because it was not from the United Kingdom. [SW] appeared before the Tribunal to give what was found to be credible evidence that this had been her understanding, and that her husband would not have omitted the information had he understood it to be relevant.
4. The First-tier Tribunal noted that the application had not been refused under S-EC 2.2 (a). There was therefore no allegation that false documents or information had been supplied. Nor had the decision been made with reference to the mandatory grounds for refusal at S-EC.1.4(b) which is concerned with applicants who have served a period of imprisonment. The focus of the appeal was the decision to refuse on the basis that there had been failure to disclose material facts, a matter which would normally lead to refusal. There being no dispute that the Respondent had failed to declare material facts, the question was whether that presumption had been rebutted.
5. The First-tier Tribunal records that the Respondent had, in his written evidence, offered an explanation for why he had omitted the information, and that he had taken full responsibility for it. The offence had been committed ten years earlier when he was 21 years old. He had not committed a criminal offence since. There were various compassionate circumstances in the case relating to [SW]. She had been "devastated" by the loss of her young child in a house fire some years earlier and had been given huge emotional support by the Respondent. She could not contemplate living in Jamaica on a permanent basis because she suffers from a number of debilitating health complaints. She has been diagnosed with chronic Gastroperesis (a condition where the stomach cannot process food properly due to nerve and tissue damage) and Type 1 Diabetes. She is under medical care in the UK and has found to her cost that her conditions cannot be catered for in Jamaica. For instance, on a recent trip she had become unwell and had ended up in hospital vomiting blood for 11 days. The doctors had not had the botox that they needed to control her bleeding and they had told her it was not available in Jamaica.
6. Having set out the legal framework and these background facts the Tribunal turned to consider whether this application should have been refused in line with the presumption in S-EC.2.1. At paragraph 23 the determination reads: "This raises an issue of the Rehabilitation of Offenders Act and the Home Office Guidance (version 2.0) 9 December 2013 as to how this Act applies to immigration decisions taken on or after the 1 October 2012". Mr Salam for the Respondent had relied on the Supreme Court decision in R (on application of T and Anr) (Respondents) v Secretary of State for the Home Department and Anr (Appellants) [2014] UKSC 35 in which consideration had been given to the obligation to declare 'spent' convictions when applying for certain jobs (for instance working with children). The claimants in that case both successfully argued that the legal obligation to declare old cautions (in one case a police warning given when the individual concerned was 11 years old) was a disproportionate interference with their private lives. The obligation to declare such matters was not "necessary in a democratic society". There had to be a rational connection between disclosure of the offence and the assessment of the individual's current suitability as an employee and this had not been established. The First-tier Tribunal declined to make a finding on whether the decision to refuse this application was rational or lawful in light of the decision in T and Ors, but it did consider the dicta in that case to be relevant to the way that the ECO had made his decision. The Tribunal considered that the decision did not demonstrate that the ECO had had regard to the guidance on the Rehabilitation of Offenders Act: "this is in my view important as the Guidance refers to matters that need to be considered and taken into account that are clearly relevant to the principle of legality and necessity in terms of an interference with private life under Article 8". The Tribunal concludes that the decision cannot be considered 'in accordance with the law' for a failure to examine the policy, which is set out. The appeal was allowed on that limited basis; in effect the matter was 'remitted' to the ECO.
7. The ECO now challenges that decision on the following grounds:
i) The extract from the policy that is set out at paragraph 27 of the determination has been incorrectly transcribed. The Tribunal has added a "not" which does not appear in the policy document and this has the effect of reversing the meaning of the section;
ii) In any event, on the facts, a failure to consider or expressly consider that policy could not logically lead to the decision being 'not in accordance with the law'. The application had specifically asked about previous convictions and deportations and these had not been declared. On any measure that was sufficient to engage S-EC.2.2(b). The Respondent had further used a new passport and had failed to declare his earlier one which would have contained evidence of the deportation from the USA.
'Error of Law'
8. At paragraph 27 the determination purports to set out the relevant extracts from the policy document 'Rehabilitation of Offenders Act -version 2.0 9 December 2013'. The first paragraph in the extract cited reads (with added emphasis):
"Reasons why it is normally not appropriate to refuse on deception grounds include, but are not limited to:
More than one offence has not been declared
The person was sentenced to a period of imprisonment, regardless of whether or not the person actually served any time in prison"
9. Mr Bates took me to page 7 of the policy document where that extract appears to be sourced. The actual words read:
"Reasons why it is normally appropriate to refuse for failing to declare a criminal conviction on deception grounds include, but are not limited to:
More than one offence has not been declared
The person was sentenced to a period of imprisonment, regardless of whether or not the person actually served any time in prison"
10. Since it is not in issue that the Respondent did actually serve a period of imprisonment in the USA, the clear effect of this paragraph of the policy guidance would be that it would normally be appropriate for the application to be refused. The way in which the Tribunal mis-transcribed the words gave them the opposite effect. This was clearly an error. Ground (i) as set out above is made out.
11. In respect of Ground (ii) this would appear to be a recitation of the ECO's grounds before the First-tier Tribunal. The Tribunal clearly appreciated that the information had been omitted. The point was that the Tribunal was pondering the relevance of that omission. It clearly considered the policy guidance to be relevant to that enquiry and it is for that reason that the error in transcription has assumed such significance. I cannot be confident that the Tribunal would have reached the same conclusion had the policy document been properly understood. For that reason I set the decision aside. The parties agreed that I could proceed directly to re-making the decision.
The Re-Made Decision
Legal Framework
12. It is worth revisiting the reasons for refusal. Paragraph S-EC.2.2(b) forms part of the 'suitability' criteria in Appendix FM. These are divided into two sections. S-EC.1.2 - 1.9 set out the situations in which applications for entry clearance must be refused. These include for instance where a deportation order remains in force, where entry would be undesirable for medical reasons and where refusal would be conducive to the public good. It must be assumed that the competent decision maker in this case gave consideration to whether to refuse under any of these provisions. The second section, between paragraphs S-EC.2.2 and S-EC.2.5 lists the circumstances in which an application would normally be refused. These include the section under consideration in this appeal, as well as matters such as a failure to pay outstanding NHS charges or Home Office litigation costs. Mr Bates pointed out that where applicants fail under one of the latter criteria, a remedy could be for a fresh application to be made with the offending matter corrected; the outstanding charges could be paid, or the old conviction declared. In this way, he submitted, the framework of Appendix FM is article 8 compliant: SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387. Respect is shown to genuine and subsisting family life by virtue of the fact that refusal on one of these grounds is not a 'forever' refusal. I accept that analysis, but would add that the use of the presumptive "normally" rather than the mandatory "must" suggests a further layer of human rights protection. The decision-maker is required to consider first whether the section is engaged (has information been omitted?) and then consider all of the circumstances to assess whether the application should nevertheless be granted.
Submissions
13. Mr Bates submitted that this was a clear case of refusal. The application form (not produced) had asked clear questions that the Respondent would reasonably have been expected to answer. He had omitted not one fact (the conviction) but three (the conviction, the imprisonment, the deportation) and had used a new passport, an action suggestive of a deliberate attempt to conceal his past. Referring to the policy guidance discussed above Mr Bates pointed to the guidance that it would normally be appropriate to refuse where the person had been imprisoned.
14. Mr Salam concentrated his submissions on what might be termed the compassionate reasons why this application should not be refused. The Respondent made an innocent mistake, there was no intent to deceive and the couple have already waited a long time to have this matter resolved. [SW] is a vulnerable individual who has suffered personal tragedy in the loss of her son and she is suffering from significant anxiety as a result of the ongoing separation from her husband. She cannot reasonably be expected to live in Jamaica because of her chronic health complaints.
My Findings
15. I have read the written evidence of the Respondent and [SW]. I have taken into account the oral evidence given by [SW] to the First-tier Tribunal and its favourable assessment of her credibility as a witness. I have had regard to the statement of [SW]'s mother [JM] and to the submission made by both parties. I have read the material in the ECO's explanatory bundle.
16. I find as follows.
17. By his own admission the Respondent failed to declare the material matters in his application form. I must assess whether this application should have been refused. There is a presumption that it should be, and that is my starting point. The guidance that I have been referred to advises decision-makers that where there has been a period of imprisonment this would be an appropriate case for refusal. I also bear in mind Mr Bates' well-made submission that one solution would be for a new application to be made. The entire relationship has been conducted with the parties living in separate countries, and it could therefore continue in the same manner until a further application was considered.
18. I now consider whether there are in this case particular factors such that the presumption is rebutted.
19. I accept, on a balance of probabilities, the evidence that the Respondent had not understood his 2005 conviction and the consequences thereof to be relevant to this application. Having regard to the positive credibility assessment made by the First-tier Tribunal I see no reason to reject the evidence that he had taken legal advice from a US attorney by telephone and that he reasonably believed he was entitled to rely on that advice. I am satisfied that there was an omission such that S-EC.2.2 was engaged, but not that there was a deliberate attempt to deceive.
20. There is no dispute that the relationship with [SW] is a genuine one, but I am further satisfied as to her emotional dependence on her husband. Anyone unwillingly living apart from a partner might be suffering from some degree of stress and uncertainty, and it is understandable that anyone in that situation would want it resolved as quickly as possible. In [SW]'s case however there are two significant factors why that stress is exacerbated.
21. First, her health is generally poor and she regularly needs recourse to emergency health care. Her diabetes is severe (she self-administers insulin injections five times per day) and it has resulted in numerous admissions to Kings College Hospital, where her consultant is based. She suffers 'hypos' (hypogylcemic attacks) where she blacks out and requires urgent medical attention. These events are obviously frightening for someone living on her own. They have on occasion led to serious injury: in her written statement she gives the example of when she blacked out and fell down 14 steps, severely injuring her back and legs, injuries which necessitated the use of crutches. [SW] gives this evidence by way of explanation as to why she needs her husband to join her as soon as possible.
22. The other factor which I bear in mind is that [SW] has suffered perhaps the worst personal tragedy that anyone can suffer, losing a child. Her son died in a domestic fire in which she was also injured. She describes the aftermath of that event as follows:
"I have lost a part of me and never thought I would be here today ? losing a child is so heart wrenching. My husband has given me so much support and encouragement that I thought I would not receive. Losing my son to a house fire at the age of three has been hard for me and I really don't want to lose that chance of having the support I need from my husband. He has stood by me through good and bad being so far away he supports me through everything - I really need him here"
She describes the Respondent has her "rock". She wants nothing more than for him to be with her so that they can start a family together.
23. I have considered all of the relevant factors. Although the application form clearly did contain significant omissions I am satisfied that this was not as a result of deliberate deception. Whilst there is a public interest in the refusal of applications that have not been supported by all the material information I am satisfied that on the particular facts of this case that public interest is outweighed by the compassionate factors advanced by Mr Salam. There are particular reasons why [SW] would substantially benefit from the presence of her husband. I am satisfied that these factors cumulatively rebut the presumption of refusal in S-EC.2.2. (b) and that entry clearance should be granted.
Decisions
24. The determination of the First-tier Tribunal contains an error of and it is set aside.
25. I remake the decision in the appeal as follows:
"the appeal is allowed under the immigration rules"
26. I was not asked to make an order for anonymity and in the circumstances I see no reason to do so.

Upper Tribunal Judge Bruce
23rd August 2016