Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04454/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 17 January 2017
On 7 February 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between
Entry Clearance Officer, new delhi

Appellant
and
mohammed HUMAYUN KHAN
(no anonymity order made)

Respondent

Representation:

For the Appellant: Mr N Bramble, a Senior Home Office Presenting Officer
For the Respondent: Mr M B Hussain, instructed by Zahra & Co, solicitors

DECISION AND REASONS

1. The Entry Clearance Officer appeals with permission against the decision of the First-tier Tribunal, allowing the claimant's appeal against a decision to refuse him entry clearance to join his British citizen wife as her spouse, pursuant to paragraph 276ADE and Appendix FM of the Immigration Rules HC395 (as amended).
2. The claimant is a Bangladeshi citizen. It is now accepted on behalf of the Entry Clearance Officer that his marriage to his British spouse is genuine and subsisting, and that the parties intend to live together as man and wife in the United Kingdom, if permitted to do so. The Entry Clearance Officer's reliance on paragraphs E-ECP.2.6 and E-ECP.2.10 of Appendix FM therefore falls away.
3. The claimant has never made any application for anonymity and is indifferent to the issue. Mr Hussain confirmed that there was no need to maintain the anonymity direction, and I vacate it.
4. The basis of the Entry Clearance Officer's refusal was that the claimant had failed to disclose a naturalisation application previously made on his behalf while he was in the United Kingdom. The Entry Clearance Officer relies on paragraph 320(11) in the general grounds for refusal and paragraph S-EC 2.2(b) of Appendix FM.
5. The Entry Clearance Officer did not arrange representation for the First-tier Tribunal hearing.
Background
6. The claimant's immigration history is set out at paragraph 6 of the First-tier Tribunal decision. He entered the United Kingdom as a working holidaymaker in March 2009, which expired in March 2011. The claimant did not embark, and overstayed until August 2013. During that period, the claimant applied for naturalisation, through a lawyer, relying on a Bangladeshi passport which it now appears was an obvious forgery. That application failed.
7. The applicant then made a series of further applications. In December 2013 he made a settlement application in which he did not disclose the previous nationality application and which was refused on the basis of inadequate documents, with no mention of failure to disclose the naturalisation application. The other points which underlay the ECO's refusal, the genuineness of the marriage and whether paragraph 320(11) applied to him, were resolved by the First-tier Tribunal and are not now disputed.
8. On 14 August 2014, the claimant made a further settlement application which was refused, again on the basis of inadequate documents.
9. On 21 December 2014, the claimant applied again. The Entry Clearance Officer refused again, on 3 February 2015, treating the failure to disclose the naturalisation application as engaging paragraph S-EC 2.2(b) of Appendix FM and paragraph 320(11) of the Rules. He refused the settlement application on that basis. An Entry Clearance Manager review took place on 15 May 2015, maintaining the decision to refuse.
First-tier Tribunal decision
10. The claimant's evidence, accepted by the First-tier Tribunal, was that he was aware that he had made an unsuccessful application for British nationality, having overstayed his working holiday leave to remain by a period of two years. He was not aware of the fraudulent circumstances surrounding it, nor that he should disclose it in an entry clearance application for settlement.
11. The claimant's account of his involvement in this fraud, from his statement, is as follows:
"I used the services of a lawyer to apply for British nationality. At the time I had not met my wife. I was illegally staying in this country and desperate to regularise my status. The lawyer that I went to see said that he could obtain British nationality for me. He will do all that was required to be done I just had to pay him. I am sorry that I did so but I went along with him and he submitted the application for me. I know only now from the ECO's refusal the details of what the lawyer did".
12. The claimant said in his statement that he had since learned that the lawyer who acted for him submitted the naturalisation application on the basis of a passport to which the claimant was not entitled and which contained two forged immigration stamps, altered personal details and issuance details, and in which there had been photographic substitution.
13. The judge considered that the applicant was not a person to whom paragraph 320(11) applied. Paragraph 320(11) is not a ground for mandatory refusal, but one on which entry clearance or leave to enter the United Kingdom should normally be refused. It applies where the Secretary of State or Entry Clearance Officer is satisfied that the applicant has previously contrived in a significant way to frustrate the intentions of the Rules, including by overstaying, but it has a second component:
"320(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by (i) overstaying ? and there are other aggravating circumstances such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications, or not complying with the re-documentation process." [Emphasis added]
Paragraph 320(11) is not pursued before me on behalf of the Entry Clearance Officer, and is not relied upon in the grounds of appeal. The only allegation which is pursued is that of the failure to disclose the nationality application on the form.
14. The First-tier Judge directed himself at [24] that paragraph 320(11) and S-EC.2.2 were effectively co-terminous, such that judicial authority and guidance on paragraph 320(11) could be read across to paragraph S-EC.2.2. At [27], reliant on that conflation, the reasoning given for allowing the appeal was as follows:
"27. For these reasons whilst the [claimant] overstayed in the UK for two years I am unable to find that the [Entry Clearance Officer] has demonstrated that there are 'other aggravating circumstances' such that the refusal of the application by reference to paragraph 320(11) is in accordance with the Immigration Rules. I also find for the above reasons that the decision is in breach of paragraph S-EC2.2(b)".
15. The Judge allowed the appeal because he was not satisfied that the applicant had been aware of the fraud in his naturalisation application. At [26] he said this:
"26. I am unable to find that the [claimant's] attempt to obtain British nationality is one to which he should have referred in his application form. He would have had no reason to do so, given his evidence that he did not know, until he received the [Entry Clearance Officer's] notice of decision, what the lawyer had done. This evidence is consistent with the [Entry Clearance Officer] having failed to identify this issue in his earlier decision made on 14 August 2014. That decision is silent on the issue, notwithstanding the agreed position that the application for British nationality had been made while the [claimant] was in the United Kingdom, i.e. prior to his voluntary departure from the United Kingdom in August 2013. No explanation has been given by the [Entry Clearance Officer] for raising the issue only in the decision made in February 2015.
27. For these reasons, whilst the [claimant] overstayed in the United Kingdom for 2 years, I am unable to find that the [Entry Clearance Officer] has demonstrated that there are 'other aggravating circumstances', such that the refusal of the application by reference to paragraph 320(11) is in accordance with the Immigration Rules. I also find, for the above reasons, that the decision is in breach of paragraph S-EC.2.2(b)."
16. The Judge found that the parties were in a genuine and subsisting relationship, that no other adverse points had been raised on behalf of the Entry Clearance Officer, and allowed the appeal. He acknowledged that there was no application for anonymity, but made an anonymity direction of his own motion.
Permission to appeal
17. The Entry Clearance Officer appealed to the Upper Tribunal. He argued that the First-tier Tribunal Judge's finding that the applicant did not know of the actions of his lawyer in relation to the British nationality application was insufficiently reasoned. He argued that the naturalisation application should have been disclosed at question 25 of the Visa Application Form.
18. The Entry Clearance Officer also disputed the finding, at [19] in the First-tier Tribunal decision, that the Entry Clearance Officer had provided no evidence to support the assertion that the claimant knew that he had made a fraudulent application for British nationality. In the second half of that paragraph, the Judge noted that the claimant himself accepted that the application had been made, and did not now dispute that the document supporting it was fraudulent, while maintaining that he was not aware of that at the time.
19. Permission was granted by First-tier Tribunal Judge Saffer, who considered it arguable that the Judge materially erred in allowing the appeal 'in that the finding that the [claimant] was unaware of the material non-disclosure of previous fraud in relation to an immigration application may be unreasonable'.
20. It does not appear that when granting permission, the Judge reminded himself that the Entry Clearance Officer had not arranged representation before the First-tier Tribunal, nor of the narrow grounds on which a finding of fact may be interfered with by the Upper Tribunal on appeal (see R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [90] in the judgment of Lord Justice Brooke). In brief, an appellate Tribunal may only treat a factual finding as an error of law where it is perverse, Wednesbury unreasonable, contrary to the evidence, or unintelligible to the reviewing Judge. If that high standard is not met, findings of fact must stand.
21. That was the basis on which the appeal came before me for an error of law decision.
Upper Tribunal hearing
22. At the hearing, I asked Mr Bramble to identify the question on the application form which had been completed incorrectly. The grounds of appeal said it was question 25. That contains the answer to question 24. The question and answer on the claimant's form at [24]-[25] was as follows:

24.
Have you been issued any visa for the United Kingdom, United Kingdom overseas territories, or Commonwealth country in the last 10 years?
Yes
25.
Type of visa issued
Date of issue
Date of expiry
Issuing authority
WORKING HOLIDAY
8 MARCH 2009
8 MARCH 2011
BHC DHAKA

23. It is not clear how that answer is to be considered inaccurate. Plainly, question 25 was not the right question as it has no relevance to naturalisation. Mr Bramble was unable to identify any question on the application form relating to previous naturalisation applications, or previous fraudulent applications.
24. After further discussion, Mr Hussain suggested that the question upon which the Entry Clearance Officer sought to rely might be question 28: "Have you made an application to the Home Office for leave to remain in the United Kingdom in the last 10 years", but again, leave to remain and naturalisation are different from each other. It is not clear that this is the right question, either. At question 30-31, the applicant made full disclosure of all visa refusals. At question 33-34 he disclosed his voluntary departure in August 2013. No other question in the application form requires the disclosure of previous naturalisation applications, or fraudulent applications.
25. Mr Hussain submitted that given the lack of clarity on the form, and the claimant's Article 8 private and family life rights in relation to his spouse, the exclusion of the claimant from the United Kingdom on such slender grounds was not proportionate. There was no evidence in the Entry Clearance Officer's decision that he had exercised his discretion in the exercise of the power in S-EC.2.2 and the Judge had been entitled to allow the appeal on that basis.
Discussion
26. I am not minded to interfere with the finding of fact that the First-tier Tribunal made in relation to the applicant's knowledge of the fraud in the naturalisation application. If the Entry Clearance Officer does not arrange representation before the First-tier Tribunal, and the Judge makes findings of fact based on the evidence which is placed before her by the claimant, it is particularly hard subsequently to show that such a finding is perverse, Wednesbury unreasonable, contrary to the evidence, or incomprehensible to the reviewing Judge, as R (Iran) requires. In this case, at [25], the Judge was entitled to find that the Entry Clearance Officer had not discharged the evidential burden of showing that the claimant deliberately attempted to mislead in the naturalisation application, or that he knew that such had been done on his behalf.
27. I remind myself of the requirements of S-EC.2.1 and S-EC.2.2:
"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).
(b) there has been a failure to disclose material facts in relation to the application."
[Emphasis added]
28. The Entry Clearance Officer relies only on sub-paragraph S-EC.2.2(b). It is not her case that false information, representations or documents were submitted in relation to the present application. It is her case that failure to disclose the naturalisation application is a failure to disclose material facts in relation to the settlement application, which will normally entail refusal, whether or not the applicant knows about it. However, Mr Bramble was unable to say with any clarity where the previous application should have been disclosed, on the form designed by the Secretary of State. It is certainly not at question 25, the question relied upon in the grounds of appeal.
29. Even if the omission were made out, paragraph S-EC.2.1 and 2.2(b) are discretionary, not mandatory. Like paragraph 320(11), the position is not that refusal is mandatory, but that the applicant 'will normally be refused'. As Mr Hussain observed, there is no sign of the exercise of that discretion in the decision of the Entry Clearance Officer nor in the review by the Entry Clearance Manager.
30. The omission relied upon for the first time in the January 2015 decision, and which the Judge found as a fact was not previously known to the claimant, does not relate to the settlement application, but to a previous application. It is not 'in relation to the [settlement] application', which may well be why it is impossible to identify a question on the application form which bears on a previous application for naturalisation, rather than leave to remain.
31. It is right that the First-tier Tribunal erred in law in conflating the tests in paragraph 320(11), and S-EC.2.1 and 2.2. Paragraph 320(11) requires both intention ('previously contrived in a significant way to frustrate the intentions of the Rules') and 'other aggravating factors'. Paragraph S-EC.2.2(b) requires the Entry Clearance Officer to demonstrate failure to disclose material facts relevant to the application which the claimant was making.
32. I must therefore consider whether to set aside the decision made. I do not consider that to be appropriate. I bear in mind that these arguments, which should properly have been made to the First-tier Tribunal, are being made for the first time on appeal because the Entry Clearance Officer chose not to arrange representation before the First-tier Tribunal. I remind myself that there is no obvious place on the form to disclose a previous nationality application, which concerns status, not leave to remain, and Mr Bramble's inability to identify the right unanswered question.
33. I consider that, having regard to her finding of fact that the claimant did not know of the fraud in the naturalisation application, it was open to the First-tier Tribunal Judge to find that S-EC.2.2(b) was not in play, albeit not for the reasons she gave. There is no proper reason to interfere with this decision and I decline to do so.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I do not set aside the decision.

Signed: Judith A J C Gleeson Date: 6 February 2017
Upper Tribunal Judge Gleeson