(Immigration and Asylum Chamber) Appeal Number: OA/04089/2011
THE IMMIGRATION ACTS
Heard at Field House
On 26 September 2012, 20 May 2013
On 7 June 2013
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE O’CONNOR
ENTRY CLEARANCE OFFICER, NEW DELHI
For the appellant: Mr D Coleman and Mr R Sharma (20 May 2013 only) instructed by London Immigration
For the respondent: Ms M Tanner (26 September 2012), Miss L Kenny (20 May 2013), Home Office Presenting Officers
DETERMINATION AND REASONS
1. The Tribunal regrets the delay in its deliberations on this appeal. Lack of full assistance from the parties with relevant information following the first hearing in September accounts for some of the delay, but certainly not all. In further directions sent to the parties in February 2013, the panel made clear that there were two matters on which we needed the benefit of further evidence and submissions. The appellant’s representatives submitted in response a skeleton argument addressing both of them. The respondent, by contrast, did nothing. In these directions we indicated our view that the panel would benefit from respondent’s submissions by a Treasury Counsel. We learnt from Ms Kenny that our directions were overlooked and she herself sought an adjournment to enable attention to be given belatedly to them. We refused. Over three months had gone by with no response from the respondent and Ms Kenny was unable to offer any explanation for why our directions were ignored.
2.The appellant, a citizen of India, appeals with permission to the Upper Tribunal against the determination of First-tier Tribunal (FtT) Judge Camp notified on 18 July 2011 dismissing his appeal against a decision by the respondent dated 21 December 2010 refusing to grant him entry clearance pursuant to paragraphs 320(3) and 320(11) of HC 395. Following this refusal decision an Entry Clearance Manager (ECM) had reviewed the case upon receipt of the appeal. This review was carried out on 3 April 2011. In dismissing the appellant’s appeal the judge decided that the respondent had not shown that paragraph 320(3) applied against the appellant but was satisfied she had shown that paragraph 320(11), another “general ground of refusal”, did. The respondent does not pursue the paragraph 320(3) matter.
3. The two main contentions advanced by the appellant in challenging the FtT decision in respect of paragraph 320(11) are:
(1) that he erred in concluding that the ECO’s decision that paragraph 320(11) applied against the appellant was “in accordance with the law” notwithstanding that it failed to show that it had been taken in accordance with relevant policy guidance.
(2) that he should have found that the ECO’s decision was contrary to the appellant’s Article 8 right to respect for family and private life.
4. Paragraph 320(11) states:
“Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.”
5. As regards the guidance to which reference is made in this paragraph, we did not have that before us but noted that its text as it was at the date of decision in 2010 was helpfully recorded by the Tribunal in PS (paragraph 320(11) discretion: care needed) India  UKUT 440 (IAC) as follow:
“Please note that the list below is not an exhaustive list. Aggravating circumstances can include actions such as:
not complying with temporary admission / temporary reporting conditions / bail conditions;
not complying with reporting restrictions;
failing to comply with removal directions (RDs) after port refusal of leave to enter (RLE);
failing to comply with RDs after illegal entry;
previous working in breach on visitor conditions within short time of arrive in the UK (that is, pre-meditated intention to work);
previous recourse to NHS treatment when not entitled;
previous receipt of benefits (income, housing, child, incapacity or otherwise) or NASS benefits when not entitled; using an assumed identity or multiple identities;
previous use of a different identity or multiple identities for deceptive reasons; vexatious attempts to prevent removal from the UK, e.g. feigning illness; active attempt to frustrate arrest or detention by UK Border Agency or police;
a sham marriage / marriage of convenience / polygamous marriage in the UK; harbouring an immigration offender; facilitation / people smuggling; escaping from UK Border Agency detention;
switching of nationality;
vexatious or frivolous applications;
not complying with re-documentation process.”
6. This guidance goes on to state:
“All cases must be considered on their merits, the activities considered in the round to see whether they meet the threshold under paragraph 320 (11), taking into account family life in the UK and, in the case of children, the level of responsibility for the breach.
Where an applicant falls to be refused under 320(7A) or 320(7B), the ECO must also consider whether it is also appropriate to refuse the applicant under paragraph 320(11). Where 320(7C) applies which makes an applicant exempt from 320(7B), an ECO must consider whether a refusal under paragraph 320(11) is appropriate.”
7. It is convenient if we condense into one the submissions made by both parties at the two different hearings as follows. In relation to contention (1), Mr Coleman and Mr Sharma submitted that the Entry Clearance Guidance manual expressly stated that before applying a paragraph 320(11) general ground of refusal the ECO should consult with an Entry Clearance Manager; this was a separate stage of the decision-making process from the post-decision review (which it is known, by contrast, did take place). In describing this prior ECM authorisation stage in the determination as a “purely administrative” requirement which did not affect the lawfulness of the decision, the FtT judge had erred in law. Ms Tanner and Ms Kenny said that we should find that the FtT judge did not err. There was no requirement set out in the rules or background instructions for ECOs to record that an ECM had been consulted prior to a refusal decision. There was no basis for considering that consultation had not taken place in the appellant’s case. It was a purely administrative, not a procedural requirement.
8. As regards contention (2), Mr Coleman and Mr Sharma submitted that the judge’s determination was based on a mistake as to fact concerning the issue of whether the appellant and his wife had lived together in the UK. In fact they had lived together in the UK for seven months and thus what the judge said at paragraph 37 (that “[t]he appellant and the sponsor have not lived together as husband and wife in the United Kingdom”) was a misdirection amounting to an error of law, since it led him to ignore important factual content to the appellant’s right to respect for family and private life. Ms Kenny had nothing to add to Ms Tanner’s submission at the first hearing that even if the judge misdirected himself as to the couple’s cohabitation for seven months before the appellant left the UK, that had no material bearing on the outcome of the Article 8 proportionality assessment.
9. Before proceeding further it will assist if we set out the relevant guidance.
The Entry Clearance Guidance
10. Prior to the first hearing a UKBA document was produced to us accessed from the UKBA website section “policy and law/guidance/ecg”. It is headed “RFL03 – General grounds of refusal”. Immediately below this heading it is stated that “[t]his is internal guidance for use by entry clearance staff on the handling of refusal for visa applications made outside the … UK. It is a live document under constant review and for information only.” It then proceeds to explain the difference between mandatory grounds for refusal set out in paragraphs 320(1)-(7) and discretionary grounds of refusal set out in paragraphs 320(8)-(20). Under a subheading “RFL3.3 What if there are exceptional, compelling circumstances?”, the grounds explain what an ECO needs to consider if there are human rights grounds or exceptional circumstances and then state:
“Where no such exceptional, compelling circumstances exist, the grounds set out in 320(1)-(7) are mandatory grounds for refusal. The grounds set out in paragraphs 320(8)-(20) are discretionary. ECMs are required to review all refusals under 320(7A), (7B), (7C) and (11) and to ensure that their ECM review is recorded on Proviso and on the Documentation Verification Report (DVR) / Documentation Examination Report (DER) …”
11. There then follows a table summarising GGFR (General Grounds for Refusal) relevant to visa applications. In the relevant column for paragraph 320(11) under the heading “Refer before decision?” is written “Yes – ECM”.
12. In the course of our deliberations immediately following the September hearing we discovered through our own researches two entries in the archived content of previous Entry Clearance Guidance:
1) One, dated 5 November 2008 and headed “Entry Clearance Guidance – General Instructions”, contains the following paragraphs:
-Paragraph 26.16.8, headed “Refusal process for refusals under paragraph 320(7A) (Updated 9 July 2008]”. This states that “[b]efore you refuse an applicant you need to…obtain ECM authorisation for the refusal”.
-Paragraph 26.17.11, headed “What is the process for refusing under 320(7B)”, states “Please read 26.16.8 above”.
-Paragraph 26.18.1, headed “What does “contrived in a significant way to frustrate the intentions of the immigration rules” mean?” concludes with the sentence:
“ ECOs will need to obtain ECM authorisation for all refusals under Paragraph 320(11)”. (Emphasis added)
2) The second entry, dated 23 September 2011, located on the same Archived Content site under the heading “RFL07 Frustrating the intentions of the immigration Rules – paragraph 320(11)” contains this passage:
“RFL7.6 Will I need to refer the case to an ECM?
Yes ECOs will need to obtain ECM authorisation for all refusals under paragraph 320(11)”. (Emphasis added)
13. Our own research also brought to light a UKBA document on their website entitled “The UK Border Agency Response to the Independent Chief Inspector Report: A Global Review 1 December 2010-30 June 2011”. Noting that one of the advisory recommendations of this Global Review is to “strengthen the quality assurance methods currently used by Entry Clearance Managers to create a more effective and robust decision-making process”, this response states:
“3. … The UK Border Agency accepts this recommendation.
3.1 Following a recommendation made by the former Independent Monitor Independent Monitor of Entry Clearance Refusals Without the Right of Appeal in 2007, the UK Border Agency agreed to move from the universal ECM Review of all entry clearance decisions to a targeted approach. In May 2010 guidance on ECM review was further updated and now incorporates similar methodology to that used by the ICI when reviewing cases. Although there are minimum levels in place for certain case types, ECM reviews are targeted towards cases in categories where there are indications that decision quality is not good enough. All applications refused under paragraphs 320 (7A) and (7B) are required to be reviewed by an ECM. ECMs must complete reviews of all decisions for any new, inexperienced or underperforming staff until the ECM is satisfied that the ECO is consistently making good decisions.
3.2 The ICI’s report ‘A Thematic Inspection of the Points-Based System: Tier 2 (Skilled Workers)’ included a recommendation that the UK Border Agency “set a minimum figure of PBS cases to be reviewed by managers in line with other limited rights of appeal cases and implements a consistent formal quality assurance framework within overseas posts...”. The UK Border Agency accepted this recommendation and agreed to consider whether the quality assurance frameworks for overseas and in-country caseworkers can be more closely aligned. The UK Border Agency will widen the scope of this work to include the current operation of ECM Review of visa decisions, which is underway.”
14. We decided that it was necessary to make known to the parties our discovery of the above items and to afford them an opportunity to comment (which we did in our further directions made in February 2013).
15. In their skeleton argument Mr Coleman and Mr Sharma submitted that we could infer from the above materials relating to the policy guidance (leaving aside the ICI report) that they stated the policy of the respondent as at the date of decision in December 2010. Miss Kenny did not seek to dispute that submission and we consider Mr Coleman’s and Mr Sharma’s submissions on this matter well-made. It is clear: that the requirement for paragraph 320(11) refusals to obtain prior ECM authorisation was in place at least by July 2008; that it was on the UKBA website in May 2010 (the version from that date having been reproduced in word format in an early appellant’s skeleton argument); and that it was in place as recently as 13 May 2013 when the appellant’s representatives again created a word format document of the website entry. In the absence of anything to suggest that policy to this effect was withdrawn or significantly altered between July 2008 and the date of decision in December 2010, we find that it was in place on the latter date.
Error of law
16. It is apparent from the extracts cited earlier from the Entry Clearance Guidance that the instruction regarding the need for prior ECM authorisation of paragraph 320(11) refusals is expressed in mandatory terms. As such it is to be understood as an instruction, not merely as guidance: see NA (Iraq), R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Ors  EWCA Civ 759 at .
17. In light of the existence of policy guidance instructing in mandatory terms prior ECM authorisation of ECO refusal under para 320(11), we consider that the FtT judge erred in law in two respects. First we consider he was wrong to regard the lack of any record of whether there had been prior ECM authorisation of the refusal decision against the appellant as a purely administrative matter having no bearing on the legality of the decision. In the absence of any record of the procedure that was followed by the ECO in this case, the judge simply could not have known whether the decision was made in accordance with the applicable policy guidance or whether, if it had been, that entailed a fettering of the judgment the ECO was obliged to make under the terms of paragraph 320(11).
18. In the latter regard it is pertinent to recall the case law of the Upper Tribunal and its predecessors which has emphasised that in respect of “General Grounds of Refusal” such as paragraph 320(11) the burden of proof rests on the ECO and requires more than a mere dissatisfaction on the part of the decision-maker: see JC (Part 9 HC395, burden of proof) China  UKAIT 00027; MZ (Pakistan) v Secretary of State for the Home Department  EWCA Civ 919. Existing case law has also seen paragraph 320(11) refusals to call for particular care on the part of decision-makers. Uniquely amongst the general grounds of refusal dealt with in Part 9 of the Rules, the rule itself refers to published Guidance. The guidance in question only relates to examples of circumstances likely to be considered as “contrivances”, but it is thereby made clear that ECOs are not to make decisions without regard to published Guidance. In PS (paragraph 320(11) discretion: care needed) India  UKUT 440 (IAC) the Upper Tribunal emphasised the need for “an adequate balancing exercise under the guidelines”. As observed by the Upper Tribunal in Mumu (paragraph 320; Article 8; scope)  UKUT 00143 (IAC), at paragraph 20, “[w]hatever guidance is in force at the relevant time will need to be properly applied”.
19. We consider that the FtT judge also erred in his treatment of the appellant’s family and private life circumstances. He appeared to consider that because when the appellant was in the UK the couple were not married this meant that there was no relevant factual content for Article 8(1) purposes to their close emotional tie. It is not in dispute that in fact the appellant and his wife had cohabited for seven months before he left the UK. Under established jurisprudence on Article 8 the existence of “family life” between a couple is essentially a matter of the de facto, not the de jure, nature of their tie.
20. In our judgement the judge’s error of law in respect of the policy guidance was a material one necessitating that we set aside his decision.
21. The decision we re-make is that the refusal of the respondent based on paragraph 320(11) was not in accordance with the law.
22. In the instant case, the respondent has known since the appellant lodged his grounds of appeal in early 2011 that there was a challenge to the procedure that had been followed when making the refusal decision against the appellant. The respondent has also known for some considerable time that the Upper Tribunal had directed further evidence and submission from the respondent on whether “…the refusal decision in this case…. was not in accordance with the law through the lack of any information confirming that such prior authorisation has been given”. Yet no such information has been forthcoming.
23. In our judgement the failure of the respondent means that we cannot be satisfied that the decision taken was in accordance with the law for two reasons.
24. First of all, in the light of the failure of the respondent to confirm whether or not the decision under appeal was the subject of prior ECM authorisation such as is required by Entry Clearance Guidance instructions, we are not satisfied it was made in accordance with established policy instructions. As such it falls foul of D.S. Abdi  Imm AR 148 principles.
25. Second, even if we were to accept that the decision was made in accordance with Entry Clearance Guidelines instructions on prior ECM authorisation, we cannot, without more, be satisfied that this authorisation process did not in fact have the effect of improperly restricting the individual ECO (as distinct from the ECM)’s exercise of judgement under paragraph 320(11). Applying the guidance set out by the Court of Appeal in NA (Iraq) at  and , and in light of the failure of the respondent to furnish relevant information, we are not satisfied that the procedure, if followed (as Ms Tanner and Ms Kenny urged us to accept must have been followed) did not restrict the freedom of the ECO to make his own decision on the particular facts. Indeed, bearing in mind that in NA the focus was on paragraph 320(3) which required only a judgment on whether there had been a failure to produce a valid national passport or other document “satisfactorily establishing” his identity or nationality, it might be thought that in respect of a provision such as paragraph 320(11), requiring a much broader discretionary judgement, the importance of ensuring policy instructions did not fetter the ECO from making his own decision were even more pressing.
26. We are conscious that when we issued our further directions in February 2013 we had in mind what we shall term “concern (a)”, namely the possible need for a decision by an Upper Tribunal panel seeking to reach a general view on whether current ECO refusal decisions made on paragraph 320(11) Grounds are in compliance with current Entry Clearance Guidance relating to paragraph 320(11) (and a number of other General Grounds of refusal). Given however the conspicuous failure of the respondent to offer adequate assistance to the Upper Tribunal on this matter, we consider that this case is not an appropriate one in which to seek to enunciate any general guidance.
27. We recognise too that in the course of our discussions with the parties at the second hearing, we identified a separate concern, which we shall term “concern (b)”, namely whether, even if followed by ECOs when making paragraph 320(11) refusal decisions, the existent Entry Clearance Guidance was compatible with the principle set out in NA (Iraq) that policy instructions cannot lawfully fetter the judgement to be made by an individual ECO under the Immigration Rules. And we have just found this concern to be one basis for finding that the ECO decision was not in accordance with the law. Here we consider that there is also a valid reason not to attempt to formulate any general position beyond our particular finding.
28. Our reluctance lies in the fact that to an extent these two concerns are conflicting. Under the first the alleged unlawfulness can only arise if the policy mandating prior ECM authorisation has not taken place. Under the second, the alleged unlawfulness can only arise if the prior ECM authorisation has taken place. Given (i) that neither Mr Coleman nor Mr Sharma was able to assist us with learning from decided cases on how such concerns interacted; and (ii) that in any event we had no input from the respondent (despite our directions urging the involvement of Treasury Counsel), it seems to us wholly imprudent to do anything more than identify unlawfulness in the specific decision under appeal in this case.
29. The consequence of our decision will be that the respondent is required to make a fresh decision and it will then be for her to decide how best to do that in light of our decision.
30. Had there been no issue about the lawfulness of the refusal decision, we very much doubt that we would have found that it was contrary to the appellant’s human rights, notwithstanding that he and his wife had lived together in the UK for seven months prior to his departure. But in the light of our conclusion that the ECO’s decision was not in accordance with the law, we consider it would be inappropriate for us to seek to rule definitively on the Article 8 grounds of appeal. As just explained, the respondent will now have to make a fresh decision. Necessarily that will have to take account of the current family life circumstances of the appellant, not those that obtained in December 2010 (the date of the decision under appeal).
31. For the above reasons:
The FtT judge materially erred in law and his decision is set aside.
The decision we re-make is that the appeal is to be allowed to the limited extent that the decision of the respondent has been found to be not in accordance with the law and therefore requires to be made afresh.
Upper Tribunal Judge Storey 05/06/2013