UI-2024-000466 & UI-2024-003055

• Status of case: Unreported
• Hearing date: 9 Jan 2025
• Promulgation date: 2 Dec 2025
• Publication date: 17 Dec 2025
• Last updated on: 17 Dec 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-003055 & UI-2024-000466
First-tier Tribunal No: HU/58096/2022
LH/02720/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 December 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE MAHMOOD

Between

AA (RUSSIA)
(ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Z Malik KC, instructed by Fragoman LLP
For the Respondent: Mr C Thomann KC, instructed by the Government Legal Department

Heard at Field House on 9 January 2025

ANONYMITY ORDER

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his partner, BA, are granted anonymity.

No-one shall publish or reveal any information, including the name or addresses of the appellant and his partner likely to lead members of the public to identify the appellant and his partner.

Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This appeal is concerned with whether the respondent lawfully refused the appellant’s application for leave to enter the United Kingdom as the partner of a person with settled status in this country under Appendix FM to the Immigration Rules or, alternatively, lawfully refused the appellant leave to enter this country on human rights grounds (article 8 of the European Convention on Human Rights).
2. We are required to consider the construction of paragraph S-EC.1.4 to Appendix FM of the Immigration Rules and the application of the Home Office’s attendant guidance policy.
3. Central to the respondent’s decision is the appellant’s criminal conviction, following guilty pleas, and resulting custodial sentence served in Russia.
Procedural history
4. By a decision dated 12 December 2023, the First-tier Tribunal dismissed the appellant’s appeal. Permission to appeal was granted and on 25 October 2024 the Upper Tribunal allowed the appellant’s appeal at the error of law stage to the extent that it would remake the decision. It was accepted by the respondent that the First-tier Tribunal had erred in rejecting the expert evidence of Professor William Butler without him being cross-examined having attended the hearing, and additionally having considered the human rights appeal without adequate reference to both Professor Butler’s evidence and the family life interests of the appellant’s partner. The decision was set aside in its entirety, save for the preservation of a finding that the appellant and his partner remain in a genuine and subsisting relationship.
Anonymity Order
5. By its decision of October 2024, the Upper Tribunal noted the First-tier Tribunal had issued an anonymity order but had given no reasons for its decision. The Upper Tribunal decided that it was proper for the order to remain in place pending consideration of its continuing necessity at the resumed hearing.
6. Open justice requires, as a general rule, that tribunals must conduct their business publicly unless this would result in injustice. Exceptions to the rule must be justified by some more important principle, most often where the circumstances are such that openness would put at risk the achievement of justice which is the very purpose of the proceedings: R (Guardian News & Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 42, [2013] QB 618, per Toulson LJ at [2] and [4].
7. Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests: R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin), per Lloyd Jones LJ at [23].
8. In considering the appellant’s request for the continuation of the anonymity order, we observe UTIAC Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, particularly the introduction and paragraphs 27 and 28.
9. We have considered the circumstances as they exist at the date of this decision and agree that it is proper for the anonymity order to remain in place. The appellant presently resides in Russia. In these proceedings, he has been critical of the Russian state, its prosecutors and its judiciary. We accept his real concerns that the identification of his name alongside his evidence may compromise his safety in Russia. Professor Butler confirmed post-hearing, by a letter dated 13 January 2025 to which no objection has been made by the respondent, that the Russian authorities have amended the Code on Administrative Violations and the Criminal Code of the Russian Federation to enable the punishment of individuals whose critical remarks upon Russian policies can be construed as disloyal to the State and are to be suppressed. Enforcement is by a "Dadin scheme," where an initial administrative offence leads to fines, and a repeat offence committed during the term of conviction triggers criminal liability.
10. Professor Butler directed our attention to Article 298 of the Criminal Code which punishes slander with respect to a judge, juror, procurator, investigator and other law enforcement officials by a fine ranging from one to five million rubles (presently £9,445 to £47,220) or by obligatory tasks for up to four hundred and eighty hours. Professor Butler observed that any criticism of State agencies, including the judiciary, might be regarded as insensitive and destabilizing and so be the subject of denunciation.
11. On balance, at the present time, we consider the appellant’s protected right to a private life under article 8 ECHR outweighs the right of the public to know that he is a party to these proceedings, the latter right protected by article 10 of the ECHR.
12. We refer to the appellant as “AA” and to his partner as “BA”.
13. The appellant’s personal history is known to the parties, including the circumstances of his conviction, the court where he was convicted, the year of his conviction and where he served his sentence. We do not detail certain facts in this decision to avoid jigsaw identification of the appellant and his partner, though all relevant facts have been considered in our assessment. To ensure the effectiveness of the anonymity order we are required to be circumspect as to facts underlying the criminal convictions and as to certain personal elements of the article 8 ECHR case advanced. As to the former, it is sufficient to detail that the appellant was accused of acting with others to commit fraud and then engaged in money laundering to profit from the proceeds. We do not identify the court where the appellant was sentenced and the judge before whom he appeared. In addition, we have not detailed the date of the respondent’s decision.
14. We do not identify the republic, krai, oblast, autonomous oblast, autonomous okrug or city where events relating to the appellant’s offending, prosecution and sentencing took place. Instead, we reference an ‘entity’ as a non-specific general term covering this place/ these places.
15. The anonymity order is detailed above. For clarity, the order has effect in respect of the entirety of the proceedings under section 82 of the Nationality, Immigration and Asylum Act 2002 and applies to the set aside decision of the First-tier Tribunal: Cokaj (anonymity orders, jurisdiction and ambit) [2021] UKUT 202 (IAC), [2021] Imm AR 1562.
Relevant facts
16. The appellant is a national of Russia and seeks entry clearance to join his partner in the United Kingdom under section EC-P to Appendix FM of the Rules. He was convicted under Article 159(4) and Article 174(4)(b) of the Criminal Code of the Russian Federation following guilty pleas entered at court. The first offence relates to swindling and the second to legalisation (or laundering) of monetary means or other property acquired by a person as a result of a commission of crime by him. He states that he entered into a pre-judicial cooperation agreement, or plea bargain, permitted under Chapter 40 of the Code of Criminal Procedure of the Russian Federation, on the advice of his defence attorney (“CC”).
17. The respondent decided the application fell for refusal on grounds of suitability under section S-EC of Appendix FM as prior to his entry clearance application, the appellant was convicted and sentenced to a term of imprisonment of at least twelve months and less than four years.
18. Additionally, the respondent concluded that the appellant did not meet all of the eligibility requirements of section E-ECP of Appendix FM as it was not accepted on the balance of probabilities that his relationship with BA was genuine and subsisting and that they intended to live together permanently in the United Kingdom: paragraphs E-ECP.2.6 and 2.10. No exceptional circumstances were identified as existing.
19. BA enjoyed indefinite leave to remain in this country at the time of the appellant’s entry clearance application. She has since been naturalised as a British citizen.
20. The respondent did not rely upon paragraphs E-ECP.2.6 and 2.10 before this panel consequent to the preserved finding of fact made by the First-tier Tribunal that the appellant and his partner remain in a genuine and subsisting relationship.
Legal framework
Statute
21. Part 5A of the 2002 Act establishes the approach to be adopted to the public interest consideration in human rights appeals where article 8 ECHR is relied upon, Relevant to this appeal are sections 117A, 117B and 117D:
Section 117A - Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
Section 117B - Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to -
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
Section 117D - Interpretation of this Part
...
(2) In this Part, “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
Immigration Rules
22. The Rules are laid down by the Secretary of State for the Home Department and approved by Parliament under section 3(2) of the Immigration Act 1971:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes to the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter ...”
23. In Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, the House of Lords held that the Rules are not delegated legislation. In R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 the Supreme Court confirmed that the effect of section 3(2) of the 1971 Act is that any requirement which a person must satisfy as a condition of being given leave to enter or to remain in the United Kingdom must be stated in the Rules. The Secretary of State cannot rely on a requirement if it is not stated in the Rules but only in policy she has published.
The exercise of statutory construction
24. Courts and tribunals are to ascertain the meaning of the words used in a statute in light of their context and the purpose of the statutory provision. The basic task for a court or tribunal in interpreting a statutory provision is clear. Lord Nicholls said in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349, at p 396, “statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context”.
25. Lord Bingham stated in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, at [8]:
“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. ... The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
26. Lord Hodge DPSC said in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, at [29]:
“29. ... Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained.”
27. We observe the presumption against absurdity, as explained by Lord Sales in R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKHL 28, [2023] 1 WLR 2594, at [43].
Construction of the Rules
28. In this matter the panel is required to consider the construction of a Rule and not statute. In R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192, Lord Dyson JSC, with whom the other members of the Supreme Court agreed, stated that the power to make the Rules was derived from the 1971 Act and its exercise is one of statutory power and not an exercise of the royal prerogative.
29. The 1971 Act contemplates the Rules to be informal rules. Lord Roskill observed in Alexander v Immigration Appeal Tribunal [1982] 1 WLR 1076, at 1080G:
“These rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed. The rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation.”
30. We recognise that some of the provisions of the Rules are expressed in mandatory language and some are expressed in a more open-textured way and are closer to advisory guidance or a statement of policy. However, despite the wording of section 3(2) of the 1971 Act which describes the Rules as statement of practice, Sedley LJ said in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376, at [17], that the Rules are different from and more than policy and “have acquired a status akin to that of law” for particular purposes.
31. Beatson LJ said in R (Sayaniya) v Secretary of State for the Home Department [2016] EWCA Civ 85, [2016] 4 WLR 58, at [21], that though the Rules are non-statutory, that does not mean they are statements of policy subject to the public law constraints on policies and discretionary powers, including the non-fettering principle.
32. The question of how to construct the Rules was considered by the Supreme Court in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48. At [10], Lord Brown referenced a passage from Lord Hoffman’s judgment in Odelola:
“4. Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”
33. Lord Brown said at [10]:
“10. ... The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy ...”
34. Lord Brown added in the same paragraph, when referencing a concession by counsel for the Secretary of State:
“10. ... the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended ... that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules.”
35. Observing the two dicta cited above, Lord Briggs, with whom the other members of the Supreme Court agreed, said in R (Wang) v Secretary of State for the Home Department [2023] UKSC 21, [2023] 1 WLR 2125, at [31]:
“31. Neither of these dicta suggest that, apart possibly from a relaxation of strictness, the interpretation of the Immigration Rules involves any significant departure from the general principles of statutory construction. Lord Hoffmann's dictum states in terms that general principles of construction apply, so that interpretation should be contextual and purposive. Lord Brown's encouragement to apply sensibly rather than strictly the natural and ordinary meaning of the words is simply the consequence of keeping in mind the context and purpose of the Immigration Rules. More to the point, neither dictum is inconsistent with the principle enunciated by Ribeiro PJ [in Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 52] and approved in [Hurstwood Properties (A) Ltd v Rossendale BC [2021] UKSC 16, [2022] AC 690], which requires a purposive approach to construction and a realistic and unblinkered approach to the application of the relevant provisions to the facts.”
36. The general principles of statutory construction therefore apply to the construction of the Rules.
37. The Rules are to be considered as being put together carefully, with expeditious amendment if an error is identified, with a view to producing a coherent text. We remind ourselves of the important presumptions of the linguistic canons of construction: that every word in the Rules is to be given meaning, that a word has the same meaning throughout the Rules, and that where different words are used they have different meanings. We also remind ourselves of the principle that special provisions override general ones: Pretty v Solly (1859) 26 Beav 606, at 610.
38. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, at [35], Lord Dyson said that an individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided the adopted policy is a lawful exercise of the discretion conferred by the statute. The respondent in this case, an official in the Home Office, is therefore obliged to act in accordance with published policy.
39. Jackson LJ stated in Pokriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] Imm AR 711, at [42], that if there is ambiguity in the Rules and the Secretary of State’s policy declares that they will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to the assurance. Jackson LJ added, at [43]:
“43. ... I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government's favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament.”
Relevant provisions of the Rules
40. We cite the Rules as they stood at the date of the respondent’s decision.
41. The appellant’s entry clearance application fell to be considered under section EC-P of Appendix FM to the Rules:
“Section EC-P: Entry clearance as a partner
EC-P.1.1. The requirements to be met for entry clearance as a partner are that-
(a) the applicant must be outside the UK;
(b) the applicant must have made a valid application for entry clearance as a partner;
(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and
(d) the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner.”
42. Section S-EC addresses suitability:
“Section S-EC: Suitability-entry clearance
S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply.
S-EC.1.2. The Secretary of State has personally directed that the exclusion of the applicant from the UK is conducive to the public good.
...
S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:
...
(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or
...
S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance.”
43. A definition of “conviction” is provided in paragraph 6 of the Rules:
“”Conviction” means conviction for a criminal offence in the UK or any other country.”
44. Paragraph S-EC.1.4 is subject to the exceptional circumstances' exception in paragraph GEN.3.2(2):
“... the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance ... a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.”
45. Relevant eligibility requirements are identified in section E-ECP:
“Section E-ECP: Eligibility for entry clearance as a partner
E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.A1.1. to 4.2. must be met.
...
Relationship requirements
...
E-ECP.2.6. The relationship between the applicant and their partner must be genuine and subsisting.
...
E-ECP.2.10. The applicant and partner must intend to live together permanently in the UK.”
The Home Office caseworker guidance
46. The Home Office’s caseworkers have various guidance documents to assist their decision-making. Paragraph 1(3) of Schedule 2 to the 1971 Act establishes that guidance must not be inconsistent with the Rules. Guidance documents are not laid before Parliament.
47. The relevant policy guidance at the time of the decision in the case was a version of “Grounds for refusal – Criminality”. The guidance detailed in the “custodial sentences” section is concerned with overseas, or foreign, convictions and offences not recognised in the United Kingdom:
“The rules apply equally to overseas convictions and these should be considered in the same way as the broad equivalent in the UK context, even where they may be no direct match.
An example of where there is no direct match would be a New Zealand ‘home detention order’. This is a non-custodial sentence and similar to UK civil orders. Some overseas convictions will be for conduct that is not criminal in the UK, including homosexuality or membership of a trade union. Other convictions will have received sentences that are higher than the UK maximums for the same conduct. If you are unsure of the status of an overseas conviction you should seek legal advice.
If the person has received a conviction for an offence not recognised in the UK you should not refuse or cancel permission solely on the grounds of that conviction.”
Criminal Code of the Russian Federation
48. The Criminal Code was adopted on 13 June 1996 and entered into force on 1 January 1997. It has been amended extensively and applies directly throughout Russia.
49. We adopt Professor Butler’s translation of relevant paragraphs of the Criminal Code below.
Swindling
50. Article 159: Swindling
“1. Swindling, that is, the stealing of another’s property or the acquisition of the right to another’s property by means of deceit or abuse of trust, -
shall be punished by a fine in an amount of up to one hundred twenty thousand rubles or in the amount of earnings or other revenue of the convicted person for a period of up to one years, or by obligatory tasks for a term of up to three hundred sixty hours, or by correctional tasks for a term of up to one year, or by limitation of freedom for a term of up to two years, or by compulsory tasks for a term of up to two years, or by arrest for a term of up to four months, or by deprivation of freedom for a term of up to two years.
...
4. Swindling committed by an organised group or on a large scale or entailed the rights of a citizen to a dwelling premise, -
shall be punished by deprivation of freedom for a term of up to ten years with or without a fine in an amount of up to one million rubles or in. The amount of earnings or other revenue of the convicted person for a period of up to three years with or without limitation of freedom for a term of up to two years.
..."
51. Article 159(4) is the crime of “swindling committed by an organised group”. Russian criminal law defines an “organised group” as two persons or more.
Legalisation (or laundering)
52. Article 174: Legalisation (or laundering) of Monetary Means or Other Property Acquired by Person as Result of Commission of Crime by Him [added to the Russian Criminal Code by Federal Law of 7 August 2001, No. 121-F3].
“1. The conclusion of financial operations and other transactions with monetary means or other property acquired by a person as a result of the commission of a crime by him for the purpose of imparting a lawful appearance to the possession, use, and disposition of the said monetary means or other property, -
shall be punished by a fine in an amount of up to one hundred twenty thousand rubles or in the amount of earnings or other revenue of the convicted person for a period of up to one year.
2. The same act committed on a large scale, -
shall be punished by a fine in an amount of up to two hundred thousand rubles or in the amount of earnings or other revenue of the convicted person for a period of from one year up to two years, or by compulsory tasks for a term of up to two years, or by deprivation of freedom for a term of up to two years with or without a fine in the amount of up to fifty thousand rubles or in the amount of earnings or other revenue of the convicted person for a period of up to three months.
3. The acts provided for by paragraphs one or two of the present Article committed:
(a) by a group of persons by prior collusion;
(b) by a person with the use of his employment position, -
shall be punished by compulsory tasks for a term of up to three years with or without limitation of freedom for a term of up to two years and with or without deprivation of the right to hold determined offices or to engage in a determined activity for a term of up to three years, or by deprivation of freedom for a term of up to five years with or without a fine in an amount of up to five hundred thousand robles or in the amount of earnings or other revenue of the convicted person for a period of up to three years with or without limitation of freedom for a term of up to two years and with or without deprivation of the right to hold determined offices or to engage in a determined activity for a term of up to three years.
4. The acts provided for by paragraphs one or three of the present Article committed:
(a) by an organised group;
(b) on an especially large scale, -
shall be punished by compulsory tasks for a term of up to five years with or without limitation of freedom for a term of up to two years and with or without deprivation of the right to hold determined offices or to engage in a determined activity for a term of up to three tears, or by deprivation of freedom for a term of up to seven years with or without a fine in an amount of up to one million rubles or in the amount of earnings of other revenue of the convicted person for a period of up to five years, with or without limitation of freedom for a term of up to two years and with or without limitation of the right to hold determined offices or to engage in a determined activity for a term of up to five years.”
Extinguishing of a criminal record
53. Article 86 is concerned with criminal record and establishes that a person sentenced for a committed crime shall be deemed to be convicted from the day the court’s sentence enters into legal force, until such time as the conviction is quashed or struck from the criminal record.
54. Article 86(3):
“Criminal records shall be expunged in respect of the following persons:
(a) ...
(b) ...
(c) Persons sentenced to deprivation of liberty for crimes of light or average gravity – upon the expiry of three years after punishment was completed;
(d) Persons sentenced to deprivation of liberty for grave crimes – upon the expiry of six years after punishment was completed;
(e) Persons sentenced for especially grave crimes – upon the expiry of eight years after punishment was completed.”
55. It was not contended by either party that the appellant’s sentence had been expunged, or extinguished, from the record at the date of the respondent’s decision.
Code of Criminal Procedure of the Russian Federation
Pre-judicial cooperation agreements (plea-bargaining)
56. Chapter 40 was added to the Criminal Procedure Code in June 2009 and is titled “Special Procedure for Adoption of Judicial Decision when Concluding Pre-Judicial Agreement on Cooperation”. It sets out the procedure for a suspect or an accused to petition the Procuracy of the Russian Federation – whose chief function is the prosecution of crimes – to enter into a pre-judicial agreement on cooperation. Such an agreement is to be in writing and signed by the suspect or accused and their lawyer. “Cooperation” requires the suspect or accused to specify what they are prepared to do in order to assist the investigation in detecting and investigating the crime, divulging others involved in the commission of the crime, and locating property acquired as a result of the crime.
57. Professor Butler observed in his expert opinion that it is “in effect, a sort of confession and treated as such by a court”.
Domestic criminal law: England and Wales
Fraud Act 2006
58. Section 1 of the Fraud Act 2006 establishes that a person is guilty of fraud if he acts contrary to sections 2, 3, and 4 of the Act. On conviction on indictment, a person guilty of fraud is liable to imprisonment for a term not exceeding ten years or to a fine or to both.
59. Section 2 is concerned with fraud by false representation:
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.
(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).
60. Section 3 concerns fraud by failing to disclose information and was not addressed by the parties before us.
61. Section 4 establishes the criminal offence of fraud by abuse of position:
(1) A person is in breach of this section if he—
(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.
62. These three sections of the 2006 Act require dishonesty, though this requirement is not defined. The test for dishonesty in all criminal cases is established in the Supreme Court judgment of Ivey v Genting Casinos UK Ltd (trading as Crockfords Club) [2017] UKSC 67, [2018] 1 Cr. App. R. 12. When dishonesty is in question, a court or tribunal must first ascertain the actual state of the individual's knowledge or belief as to the facts. The question of whether the conduct was honest or dishonest is then to be determined by applying the objective standards of ordinary decent people.
63. In respect of “gain” the offence of fraud requires an intent, by means of the actus reus “to make a gain”, rather than the lesser requirements of acting “with a view to gain” incorporated in various sections of the Theft Act 1968. Consequently, though none of the three ways of committing fraud established by sections 2 to 4 of the 2006 Act has to be effective, each has to be intended to be. We note R v Gilbert [2012] EWCA Crim 2392 where the charge concerned section 2 of the 2006 Act. The Court of Appeal held that in order to commit fraud by false representation, a defendant has to make a false representation, do so dishonestly, and to intend to make a gain or cause loss by making the representation. It was a matter for the jury as to whether the causative link between the intention and the false representation was established.
64. In respect of “loss”, the necessary intent is less restrictive than under the Theft Act 1968 since it includes an intent merely to expose another to a risk of loss.
65. An intention to permanently deprive is not an element of fraud, since the intended gain or loss can be temporary or permanent.
66. As to section 2, the offence is committed when the representation is made; it is not dependent on a result being achieved. “Make” is to be given its natural and ordinary meaning and is not to be overlaid with complexity. The representation is to be untrue or misleading. A person intending to make a gain, knowingly makes a representation which is only peripherally false or misleading will be caught by this section if, and only if, he is dishonest.
67. The definition of “false” incorporates the requirement that the person making the representation knows that the representation is, or might be, untrue or misleading. It is the defendant’s actual knowledge that matters, not what he ought to have known, or what a reasonable person would have known. A person who shuts his eyes to obvious doubts as to the genuineness of a representation that he is making knows that it might be untrue or misleading: R v Augunas [2013] EWCA Crim 2046, [2014] 1 Cr. App. R. 17.
68. Section 4 requires a person to occupy a position in which he is expected to safeguard, or not to act against, the financial interests of another person. Such a position will involve either a fiduciary duty, or an obligation that is akin to one so that the breach can conveniently be described as a breach of trust or of a privileged position in relation to the financial interests of another person. An example given in the explanatory notes to the Act includes director and company. The abuse must be dishonest and must be accompanied by the requisite intent to gain and loss.
Proceeds of Crime Act 2002
69. The criminal offence of money laundering is established by Part 7 of the Proceeds of Crime Act 2002: section 327 (concealing etc. criminal property), section 328 (entering into an arrangement etc. about criminal property), and section 329 (acquiring, using and possessing criminal property). The maximum sentence on indictment is fourteen years.
70. Section 340 of the 2002 Act establishes that each of the principal money laundering offences requires proof that the conduct concerned “criminal property”. Section 340(3) provides that property is criminal property if it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or in part and whether directly or indirectly), and the alleged offender knows or suspects that it constitutes such a benefit.
Evidence
71. We have read and considered with care the composite bundle running to over 1,700 pages. If documents are not referenced below, that is not to be taken as the panel failing to consider the documents in its assessment. Two witnesses gave evidence at the hearing: BA and Professor William Butler. In addition to the appellant’s written evidence, we have considered evidence provided by the appellant’s lawyer, CC, as well as evidence from a relative and a friend of the appellant.
Appellant
72. The appellant relies upon witness statements dated 9 March 2023 and 21 November 2024. We have considered these statements with care. The appellant explains the circumstances of his business activity, arrest, prosecution and conviction. In respect of his guilty plea, he explained by his first witness statement:
“I asked my lawyer to suggest an exit strategy with minimal damage, that is, what I need to do in order to lose as little time, energy and health as possible during the investigation, not sit in jail until the trial and receive the minimum punishment. I came to understand that the prosecuting authorities were not obliged to observe any terms of detention in a pre-trial detention centre, and one could spend a considerable time awaiting trial, perhaps many years. It was important for me to maintain my health as much as possible in order to remain a support for [BA] [...] and not become a burden [...] The lawyer suggested that I plead guilty, sign a pre-trial agreement and request a trial in a special manner. So, I did.
The lawyer advised me that I was likely in this case to receive a suspended sentence. But he did not take into account that this criminal case was initiated in the interests of people close to the authorities.
My lawyer advised me that the best option was to plead guilty, sign a pre-trial agreement and request a trial in a special manner. I followed the advice. I wanted to ensure that I served as little time as possible, maintained my health which was declining due to the stress and still have a chance of making it [...] to the UK to be with [BA]. If I had declared my innocence, I would have spent several years in a pre-trial detention centre [...] and would if convicted receive a sentence of at least six years. Pleading guilty means that I could not appeal my conviction.”
73. He addresses the impact of his separation from BA in his witness statement of November 2024 and as to their continued means of communication.
“BA”
74. BA adopted her witness statements of 9 March 2023 and 21 November 2024.We have read them with care. She contends that the criminal proceedings brought against the appellant was custom-made, with the intention to eliminate a market competitor as a means of fighting for the flow of finances. She explained how she remains in contact with the appellant. She wishes to remain in the United Kingdom and explains the difficulties she will face in Russia consequent to possessing British citizenship.
75. In her oral evidence, BA confirmed her educational qualifications, aspects of her previous employment in Russia and her present circumstances. She explained that she could meet the appellant in a third country, but he would be required to secure a visa to that country.
“CC”
76. The appellant filed a letter from CC, dated September 2023. CC is a registered lawyer who represented the appellant in his criminal proceedings. We do not name this witness as such step may permit jigsaw identification of the appellant.
77. CC confirms that the appellant’s instruction was that he was innocent of the alleged criminal acts. Upon assessing the appellant’s case in the context of the Russian legal system at the time of advice, CC advised the appellant to plead guilty to the charges. CC reasoned that this course of action was in the appellant’s best interests as the conviction rate in Russian courts at the time was 99%. CC was concerned that if the appellant maintained his innocence and pleaded not guilty, it was extremely unlikely that he would have been released from a pre-trial detention facility, and CC was concerned that he would remain there for an undefined period. A guilty plea would enable the appellant to receive a qualified sentence with a determined release date.
78. CC’s position is that the appellant’s criminal prosecution was illegal, with the underlying acts undertaken by the appellant being permissible under Russian law. The criminal prosecution and subsequent sentencing to a term of imprisonment are considered by CC to be typical of the legal and judicial system in Russia, whose primary aim is to unconditionally protect the interests of the Russian state.
Professor William Butler
79. Professor Butler is The John Edward Fowler Distinguished Professor of Law, Dickinson School of Law, Pennsylvania State University, and Emeritus Professor of Comparative Law in the University of London. He is the author of several books on Russian law including Criminal Code of the Russian Federation (Wildy, Simmonds & Hill) (4th edition, 2004), Russian Law (Oxford University Press) (3rd edition, 2009), Russian Law and Legal Institutions (Talbot Publishing) (3rd edition, 2021) and Civil Code of the Russian Federation (Talbot Publishing) (2021).
80. Professor Butler relied upon his report dated 3 March 2023. He attended the hearing remotely and was cross-examined by Mr Thomann KC.
81. In his report, Professor Butler noted that proceedings were brought against the appellant following an anonymous denunciation. He opined that in the ordinary course, accepting the circumstances set out in the materials before him, civil proceedings would have been expected to have been instituted in respect of the contract, if there were legitimate reasons for doing so:
“One would then suspect that if civil proceedings disclosed other irregularities of a criminal nature, appropriate steps would be taken by the authorities. But the sequence of events was completely otherwise.”
82. Professor Butler addressed pre-judicial cooperation in Russia criminal procedure:
“This innovation in Russian procedure was controversial, and remains so, because it is contrary to another guiding principle of Russian criminal procedure: that of “objective truth”. Soviet criminal procedure, given the Stalinist practices of extorting confessions by torture and of denunciations, rejected confession from the mid-1950s as a reliable form of evidence and required the prosecution to prove the occurrence of a crime and the identity of its perpetrators independently of any confession and protected the right to remain silent. The introduction of “cooperation agreements” represented a compromise with “objective truth” and continues to sit uneasily as part of the structure of criminal procedure. The principle of “objective truth” leads the Russian procedural systems to allow exceptional opportunities to appeal investigation, Procuracy, and judicial determinations; this often protracts proceedings but is consistent with the view that there should be redress against any incorrect decision.
The cooperation agreements are not generous in Anglo-American understandings. As a rule, the suspect or accused can expect a sentence of two-thirds of the possible maximum, setting-off any time served in pre-trial detention.”
83. A significant concern for Professor Butler - “highly suspicious and unacceptable” - was the appellant being permitted to confront others alleged to have been involved in the criminal activity as co-conspirators, but no confrontation being arranged with the original anonymous accuser. He observed, “[t]he anonymous denunciation was an integral feature of Stalinist abuses and prohibited in the post-Stalin reforms” and the failure constituted “a departure from post-Stalin procedural reforms”.
84. Professor Butler explained that given the facts alleged it would have been expected that the appellant would have been prosecuted under Article 159(6) of the Criminal Code, read with Article 159(5), concerned with swindling accompanied by the deliberate failure to perform contractual obligations in the sphere of entrepreneurial activity, if this act entailed the causing of significant damage.
85. He opined that consequent to the appellant’s “management” role, the court assumed to a large degree that the appellant had knowledge of and was involved in the transactions that it found to be criminal in nature. The appellant states that others in other defined management roles would have detailed knowledge of the transactions and taken operational decisions in respect of entering into and performing contracts. Consequently:
“The trial court seems to have made assumptions based on [the appellant’s] version of the transactions, disregarded his explanations of how the companies actually operated, and failed to challenge the prosecution for documentary proof of [the appellant’s] involvement in the actual conclusion and performance of the contracts. I have been involved in numerous corporate transactions over the past three decades in Russia and never encountered such a flagrant omission of elementary documentary evidence of corporate decision-making. In my experience, a court would begin with that kind of evidence.”
86. By his written report, Professor Butler concluded with his having formed the following views upon considering the documents placed before him:
(i) The timing of the prosecution is suspect given the political circumstances and rivalries in the entity at relevant times.
(ii) The preceding conclusion is reinforced by the prosecution relying on an anonymous denunciation to initiate and pursue the proceedings.
(iii) The evidence relied upon principally by the Procuracy appears to be the statements of the appellant recited in pursuance of a plea-bargaining agreement, which means they are self-reinforcing confession evidence that would otherwise be suspect and unreliable.
(iv) Ample civil law remedies were available in this case for breach of contact if they were considered to be appropriate by the parties, including payment arrangements in the event of delayed performance.
(v) Whether the appellant received sound advice from his lawyer, CC, with respect to the pre-trial cooperation agreement is questionable, but both are unlikely to have imagined that the outcome of the punishment assigned by a Russian court might prejudice his ability to enter the United Kingdom.
(vi) On balance, the appellant’s belief that the proceedings against him were politically motivated is plausible because of their origin, timing, nature, and apparent failure to have recourse to possible civil remedies for improper contractual performance.
87. In his oral evidence, Professor Butler confirmed that he worked off the Russian text when reading the documents provided to him. He candidly acknowledged that he was commenting on factual accuracy without access to the full court file and so did not enjoy access to the record of investigation.
88. In answer to questions from Mr Thomann in relation to the domestic Fraud Act 2006, he accepted that he was not an expert in English law. However, in respect of the contention advanced by Mr Thomann that section 2 of the Act was similar to the swindling provision in the Criminal Code, he explained that “dishonest” is not a term in Russian law. He considered there to be a distinction between that requirement and the requirement for “deceit” in establishing swindling under the Russian Criminal Code. He reasoned that the Criminal Code relies heavily upon strict liability, whilst English law is subjective as to intent. Economic crime in Russian law is “heavily formulistic”, with consideration of “movement”, not state of mind. The concept of deceit is one of direct intent, not capable of being caused through negligence. A Russian criminal court would place great weight upon documents and draw inferences from them.
89. Professor Butler was reluctant to draw a comparison suggested by Mr Thomann that the criminal court’s conclusion that the conspirators left administrators in the dark is as close to dishonesty as understood in common parlance.
90. As to the English notion of “abuse of trust”, Professor Butler again observed that deceit in Russian criminal law requires direct intent. In respect of a person with responsibility for entering into and managing a contract, a Russian court would look at the legal procedures but would not be considering an abuse of trust.
91. He explained that engagement in a tender exercise with the aim of enriching oneself would be charged under a different article of the Criminal Code, as would bribery.
92. Turning to Article 174 of the Criminal Code, he accepted in broad terms that it equates to money laundering, and he accepted that the plain language of section 327 of the 2002 Act overlaps to a certain extent with Article 174. He observed that the overlap was to be understood by there being international conventions such as the 2000 UN Convention Against Transnational Organised Crime being in play, though he observed there are difficulties in Russian law as to conversion. We note that Russia signed the Convention on 12 December 2000 and ratified it on 26 May 2004. We also observe that the appellant was sentenced to a custodial term of over twelve months and less than four years for this offence.
93. Professor Butler explained there are concerns as to reliance upon anonymous denunciations in Stalin’s time, and consequently a safeguard against the concern is permitting confrontation, which can take place at the trial but should in the appellant’s case have taken place at the outset of the investigation. He considered that the prosecution should not have proceeded consequent to the failure to ensure a confrontation.
94. When asked by Mr Thomann as to whether the appellant subsequently volunteering information as to criminal offences substantially mitigated any concern as to the anonymous accuser, Professor Butler replied “No”, as the accuser should have been identified earlier in the process. He was not willing to agree that the appellant’s engagement in pre-trial cooperation, and the provision of information as to criminal acts was conclusive to the substance of the charges brought against the appellant, but he accepted that the appellant brought substantive evidence of fraud to the Procuracy’s attention.
95. He remained puzzled by why the authorities did not “go after the contracts” and bring civil proceedings. Given the convictions, the authorities could have attacked the contracts as invalid under the Civil Code of the Russian Federation. This would have been a means of seeking full return of the monies paid and money arising from additional contractual penalties. Russian law permits the joinder of civil and criminal claims. Whilst in market terms, water may have passed under the bridge, the Russian authorities would have been expected to have been focused upon the invalid transaction, not simply the means of securing repayment.
96. Professor Butler addressed circumstances in the entity and prosecutions arising in relation to corruption. He accepted that on this he was drawing upon media reports.
97. In re-examination, Professor Butler confirmed that a person can be convicted of swindling in Russia with no finding of dishonesty because it is not a part of the Criminal Code. Whilst it may be possible to draw an inference of dishonesty from the court judgment, the term itself is not used. He accepted that it is possible that someone could be convicted of swindling without making false representations.
98. As for Article 174, the performance of operation or conclusion of transaction is crucial.
99. He explained confrontation is a safeguard as there is a high conviction rate at trial because the Procuracy does not prosecute doubtful cases, and because it enters into cooperation agreements.
100. The court’s focus in the appellant’s matter was, as is the case in criminal cases, on the objective truth, with no emphasis on the subjective state of mind in respect of the swindling and legalisation charges. This was extenuated by the pre-judicial cooperation agreement where the court took the appellant’s evidence as true with no independent examination as to whether it was true.
101. The appellant enjoyed a right of appeal that he did not exercise. Professor Butler considered the judgment to be written in boilerplate language, and it would have been inexpensive to appeal. He considered appeals to be “widely” initiated. They are primarily to request a right of supervision in respect of a legal issue. The system is permissive in rights of appeal and supervision.
102. In answer to questions from the panel, Professor Butler explained that “stealing” in Russian law is the physical appropriation of property by taking it away from someone. It is defined in Article 158 as the unlawful gratuitous removal of another’s property to benefit.
103. Article 174(1) references “commission of crime”. Professor Butler explained that helpful examples are provided in the Commentary to the Criminal Code such as the illegal sale of a weapon/narcotics to launder money. The “selling” is the crime, the placing of the money in a bank is the “laundering”.
104. Professor Butler considered that the appellant could, in the circumstances relied upon by the Procuracy, have been prosecuted for abuse of public position where deceit as identified by the Commentary to the Criminal Code brings the victim into delusion by distorting facts or silence of facts known to him, and consequently the victim transfers property.
Analysis
105. At the outset of our analysis, we express our gratitude to counsel for their considered and skilled oral and written representation. We are also grateful to their instructing solicitors for the care taken in preparation for the hearing.
Preliminary issue - Expert evidence
106. It is for a tribunal to consider what weight should properly be placed upon evidence, and the approach to expert evidence is no different. Whether a proposed expert is entitled to be regarded as an expert remains a question for this tribunal, applying the principles reiterated in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6, [2016] 1 WLR 597, at [43]-[44], where the Supreme Court approved a section of the South Australian decision in R v Bonython (1984) 38 SASR 45, from which it distilled four key considerations which govern the admissibility of expert evidence (which in Scots law is known as “skilled evidence”):
i) Whether the proposed skilled evidence will assist the court in its task;
ii) Whether the witness has the necessary knowledge and experience;
iii) Whether the witness is impartial in his or her presentation and assessment of the evidence; and
iv) Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
107. An expert witness may give both opinion evidence and expert evidence of fact, drawing on their own knowledge and experience of the subject matters including the work and literature of others. Generally, these key considerations apply equally to the admissibility of both, save that when the first consideration is applied to opinion evidence, the threshold test is higher, namely whether the proposed evidence is necessary. The panel is mindful of the confirmation in MH (review; slip rule; church witnesses) [2020] UKUT 125, [2020] Imm AR 983, at [39], that whilst no question of admissibility arises in the Immigration and Asylum Chamber these criteria are nevertheless relevant in deciding whether evidence is properly described as “expert evidence”. It is through the prism of the Upper Tribunal’s general approach to admissibility that Professor Butler’s expertise is assessed. Ultimately it is an expert witness' overall reasoning that is being examined.
108. We accept that Professor Butler is an expert as to the law relating to Russian criminal procedure. His extensive work in the area, and his body of academic research and writing in field is self-evident. We observe that the respondent accepted Professor Butler’s expertise through his study of the Russian legal system permitted him to comment in general terms on the Russian criminal system being compromised by outside actors. We consider his evidence on this element of the appellant’s case to have been insightful and of considerable aid.
109. The respondent considered Professor Butler to have strayed outside his area of expertise when opining on circumstances arising in the entity prior to the appellant’s arrest and prosecution. It was noted by Mr Thomann that Professor Butler accepted he drew upon publicly available documents such as media reports when considering political change and anti-corruption activity.
110. Whilst accepting Professor Butler’s expertise in commenting in general terms as to adverse acts of outside actors on the Russian criminal system, we find that he does not have the necessary knowledge and experience of political events in the entity to be expert in respect of them. Though not expert opinion, we give some weight to his observations on this issue which he drew from his examination of publicly available documents, though we are mindful that he has not seen the case papers prepared in the appellant’s prosecution which may have provided greater insight into his understanding of political events in the entity and their engagement in the appellant’s prosecution.
Immigration Rules – Section EC-P
111. Appendix FM is the route for those seeking to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen or has a specified form of leave. It sets out how the requirements of the route are to be met and it reflects how, under article 8 ECHR, the balance will be struck between the right to respect for private and family life and legitimate aims of public policy including protecting national security and immigration control.
112. Section EC-P sets out the requirements for entry clearance as a partner. Paragraph S-EC.1.4 is a suitability requirement which must be met otherwise the applicant will be refused entry clearance under paragraph S-EC.1.1. Paragraph S-EC.1.4 is intended to emphasise the public interest in maintaining refusal and is broadly consistent with statute and the rules concerned with deportation.
113. Prior to deletion from 11 January 2018, subject to saving provisions for applications made before that date (HC 309), section S-EC.1.4 additionally required:
“Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factor.”
114. A decision-maker is now required to consider paragraph GEN.3.2 when refusing an application on conducive to the public good grounds.
115. Consequently, as to the relevant Rules:
(i) If an applicant for entry has been convicted of an offence in the circumstances defined by paragraph S-EC.1.4. the applicant will be refused entry; unless
(ii) The respondent treats, exceptionally, the applicant’s conviction and/or sentence as not justifying a refusal of entry clearance by application of her published guidance; or
(iii) In accordance with paragraph GEN.3.2 and upon consideration of information provided by the applicant there are exceptional circumstances rendering refusal of entry clearance a breach of article 8 ECHR because refusal would result in unjustifiably harsh consequences for the applicant or a family member.
Decision
116. The respondent’s decision challenged in this case details the appellant’s conviction, time on remand, time served, release date and the date when the custodial element of the sentence expired. It was observed that the appellant had provided no evidence of an appeal having been lodged or “attempts to have this sentence overturned”. Paragraph S-EC.1.4 was applied by the decision-maker, and the application was refused on the ground that it was not conducive to the public good for the appellant to be admitted to this country. Additionally, it was expressly determined that no exceptional circumstances arose that would render refusal of entry clearance a breach of article 8 ECHR.
Parties’ cases as to paragraph S-EC.1.4.
117. The parties agree that the burden of proof in relation to the suitability provisions falls upon the respondent. Once satisfied, the burden falls upon the appellant when seeking to establish exceptional circumstances.
118. The core of the appellant’s case is that he was targeted by the Russian authorities in a politically motivated prosecution. His lawyer in Russia considered that the prosecution was illegal but advised him to plead guilty for convenience.
119. Mr Malik KC observed that the panel is required for the purpose of determining this appeal to consider the construction of a Rule and would therefore be mindful of applicable principles identified by the Supreme Court in Mahad. As to published guidance, the respondent when exercising powers under the 1971 Act is required to act in accordance with published Home Office policy, and the Rules must be read in conjunction with such policy. Where there is tension between the Rules and policy, the respondent must act in accordance with published policy and consequently the Rule is to be read down in light of the policy as confirmed by the Court of Appeal in Pokhriyal.
120. Mr Malik submitted that the respondent’s approach to the Rule denied both the decision-maker and later a tribunal the opportunity to examine whether the conviction was arbitrary, deficient for procedural fairness or pursued for political reasons. His first contention was that the Rule itself was not clear, as it failed to adequately define two key elements: (i) what is meant by an “offence” and (ii) what is meant by “conviction”.
121. Mr Malik posited that on a proper construction “offence” means a crime recognised by domestic law in the United Kingdom. This is the only sensible construction of the word as a draftsman would not draft so wide that it could catch any offence, for example blasphemy in Iran. Mr Malik drew upon the last paragraph of the guidance as support:
“If the person has received a conviction for an offence not recognised in the UK you should not refuse or cancel permission solely on the grounds of that conviction.”
122. As to “convicted”, Mr Malik contended that it should be defined as “a reliable declaration of a person’s guilt by an independent court of law”. The foundation for this interpretation is that the Secretary of State could not intend a conviction resulting from the arbitrary act of a dictator to be applicable or a conviction arising from a lack of due process. Mr Malik acknowledged that this construction went beyond the guidance, but there must be a reason for the requirement, “... convicted of an offence ...” and it is proper to consider that the requirement conveys reliability, of due process in a court of law and that the conviction relate to a crime recognised in this country. The fact that a person has been imprisoned cannot, by itself, be sufficient for refusal on the grounds of conducive to the public good with an attendant bar upon re-applying for entry clearance.
123. On the respondent’s case, the appellant fell to be refused under paragraph S-EC.1.4(b) consequent to (i) the fact that he was convicted of an offence, (ii) the fact that he was sentenced to a period of imprisonment of at least twelve months but less than four years, and (iii) the fact that ten years had not passed since the end of the sentence. Mr Thomann said the accumulation of these facts was the short and complete answer under the Rules. Guidance cannot sensibly be read as mandating a technical examination of whether a specific provision of a foreign criminal code matches with precision, or near precision, a charge within the United Kingdom’s criminal legislation. The exception provides for an inquiry that is directed at consideration of broad equivalence.
124. Mr Thomann submitted that the appellant seeks to read down paragraph S-EC.1.4, and accordingly paragraph S-EC.1.1, through the Rule being circumscribed by the last sentence of the Home Office’s guidance. However, guidance cannot change the Rules when they are identified in clear terms. In any event, the relevant paragraph of the guidance is not concerned with the scope and meaning of terms, but with the appropriateness of a decision-maker considering the making of an exception, and so derogating from the Rule in section S-EC, in respect of conduct that is not criminal in the United Kingdom.
125. Mr Thomann observed that the charges of swindling and legalisation are closely analogous with domestic provisions established respectively by the Fraud Act 2006 and the Proceeds of Crime Act 2007. Additionally, the criminal nature of both the fraud and money laundering offences was, at all relevant times, recognised at supranational level and so recognised both in Russia and the United Kingdom as well as under international law.
126. As to the appellant’s reasons for entering guilty pleas, the respondent’s position was that the judgment evidenced the appellant aiding the Russian authorities in its continued investigation, for example by providing information as to offences that the authorities were unaware of. This established that the appellant committed the offences of swindling and legalisation under Russian law.
Paragraph S-EC.1.4 generally
127. The Master of the Rolls, King and Irwin LJJ said when considering this paragraph of the Rules in Entry Clearance Officer v MW (United States of America) and Others [2016] EWCA Civ 1273, [2017] 1 WLR 1556, at [37], that it would be surprising if the policy in regard to those living abroad but seeking to enter the United Kingdom were to be more liberal than the policy affecting those already resident here. As to the latter, the power in section 3(5)(a) of the 1971 Act to deport a person from the United Kingdom where the Secretary of State deems their deportation to be conducive to the public good is most often exercised on the basis of criminal conviction. There is no requirement placed upon the Secretary of State to undertake an assessment of a domestic conviction. It is sufficient that there be a conviction and appeal rights have been exhausted. Section 3(5)(a) deportation is intertwined in practice with section 117D(2) of the 2002 Act, with the question of whether a person is a “foreign criminal” going to how a tribunal will assess article 8 ECHR.
128. Our starting point is the natural and ordinary meaning of “convicted” and “offence”. We are not searching for a purpose above and beyond these words because they are statements of the Secretary of State’s policy. As to “convicted” we are required to consider the natural and ordinary meaning of “conviction” which is defined for the purposes of the Rules.
129. “Offence” is not defined in the Rules, nor is it defined by domestic statute. We conclude its natural and ordinary meaning to be “an illegal act or omission”. Neither “convicted” nor “conviction” are defined by domestic statute. We consider “convicted” to possess the meaning of “being guilty of an offence which makes a person liable to legal punishment”. “Conviction” is “the act of proving or finding a person guilty of an offence with which he or she is charged before a legal tribunal”.
130. We proceed to consider the meaning borne by “convicted” and “offence” in the context of the Rule, keeping in mind the requirement to apply the meaning sensibly rather than strictly with construction being contextual and purposive. Our starting point is to discover from the words what the Secretary of State must be taken to have intended. As an aid we observe that conviction is defined by the Rules as a “conviction for a criminal offence in the United Kingdom or any other country”.
131. Though they have separate meanings, the two requirements are entwined. Lewis LJ observed as to the consideration of “foreign convictions” in Gosturani v Secretary of State for the Home Department [2022] EWCA Civ 779, [2022] 1 WLR 4345, at [36]:
“Furthermore, other statements of policy indicate that the fact that a person has been convicted of an offence in another country is relevant to whether that person ought to be permitted to enter the United Kingdom. The Immigration Rules contemplate that a person convicted of a serious offence ought not to be granted entry clearance to come to the United Kingdom unless refusal would have unjustifiably harsh consequences for the applicant or members of his family. There is a need to bear in mind that, where the conviction occurred abroad, the seriousness of an offence cannot necessarily be measured by the sentence imposed by the foreign courts. There may be instances where a foreign conviction is not based on conduct which would be criminal in the United Kingdom (such as offences involving homosexuality or proselytising) or where a severe sentence is imposed which would not be imposed here (such as a sentence imposed for a minor public order offence in a country with an authoritarian regime): see MW (United States of America) and Others v Entry Clearance Officer [2016] EWCA Civ 1273, [2017] 1 WLR 1556 at paragraphs 39 to 41. Subject to that caveat, the fact that a person has been convicted of a serious offence abroad is seen by the executive as relevant to whether a person should be allowed to enter the United Kingdom. By analogy, it is legitimate to have regard to the fact that a person has been convicted of a serious criminal offence abroad when deciding whether it is in the public interest to deport that individual.”
132. The Rule permits the exclusion of a person convicted of a serious offence from being granted entry clearance. A conviction is final once appeal rights have been exhausted. The purpose of the Rule permits reliance upon a criminal conviction which in turn establishes the illegal act or omission constituting the offence. The Rule attributes seriousness to the required offence by requiring a custodial term to have been imposed, though as observed by Lewis LJ in Gosturani a sentence of imprisonment is not necessarily determinative of the requirement.
133. We conclude that the Rule is clear in terms. Its words bear their natural and ordinary meaning. Its requirements are met by the establishment of the core elements: conviction for an offence, for which there has been a sentence of imprisonment, and an identified period following the end of the sentence has not passed.
134. We agree with Mr Thomann that on a reasonable reading the Home Office guidance is directed towards a factual assessment of personal conduct. It confirms the respondent’s intention that there is an exception to the application of the Rule where there is a conviction for which there is no direct match in domestic criminal law, even on the application of broad equivalence. Where conduct is not considered criminal in this country, that there is a foreign conviction resulting from its commission or omission does not necessitate the application of the Rule. A second, similar, exception may arise where a foreign sentence is passed in respect of an act which would constitute a criminal offence in this country, but where the sentence is higher than a sentence that may be imposed in this country. An example is section 5 of the Public Order Act 1986 concerned with using threatening or abusive words or behaviour or disorderly behaviour etc. likely to cause harassment, alarm or distress. The maximum sentence is a level 3 fine of £1000 and consequently the conduct required for the offence is not of a seriousness the domestic authorities consider appropriate for a custodial sentence. The fact that an foreign court adopted a different approach to such conduct and imposed a term of imprisonment does not override the domestic assessment as to the seriousness of the offence.
135. For the purpose of paragraph S-EC.1.4 it is sufficient for the respondent to place reliance upon a recorded foreign conviction in relation to a criminal offence for which a person has been sentenced to a period of imprisonment as required by the individual sub-paragraphs, and the necessary period of time to pass since the end of the sentence has not expired. We consider the contrary construction advanced by the appellant to be impracticable and unworkable as it places upon the decision-maker a forensic and burdensome examination of whether a specific provision of a foreign criminal code matches precisely, or nearly matches, a criminal charge established by domestic legislation, without the requirement of any input from an applicant. A clear example of the impracticality that may arise can be identified from Professor Butler’s expert evidence as to legalisation as established in the Russian Criminal Code and the domestic offence of money laundering under the 2002 Act. Professor Butler accepted that in broad terms Article 174 of the Criminal Code equates to money laundering, and the plain language of section 327 of the 2002 Act overlaps with Article 174. This is unsurprising as both the United Kingdom and the Russian Federation have ratified the 2000 UN Convention Against Transnational Organised Crime. However, even with this backdrop, Professor Butler confirmed difficulties arising in Russian criminal law as regards conversion. We consider the construction advanced by the appellant as fundamentally at odds with the purpose of a Rule that seeks to provide consistency in the deportation and exclusion regimes following conviction.
136. Paragraph S-EC.1.4 is properly to be considered in terms of its overall purpose, namely being concerned with the exclusion of a person from this country on conducive to the public good grounds. The requirement of there being an offence is the foundation of the requirement that there be a foreign conviction. The meaning of “offence” in the paragraph is that it is an illegal act or omission recognised by the criminal law in the State in which the conviction is recorded, and the conviction is recorded following a finding or acceptance of guilt in respect of an offence with which a person has been charged before a lawfully constituted legal tribunal in that State. Noting its purpose we conclude that by its clear terms the Secretary of State intended for the Rule simply requires “offence” and “convicted” to be applied with their natural and ordinary meaning, and for exclusion following criminal conviction to be akin to the policy affecting those persons already resident here and convicted of criminal offences. The Rule itself does not require a crime to be recognised by domestic law in this country. The guidance addresses the small number of instances where conduct does not necessitate the sanction imposed by the Rule in circumstances where they have been a conviction for an illegal act or omission in the foreign country.
137. Turning to the guidance, we observe that the relevant version was informed by the judgment of the Court of Appeal in MW (United States of America). We acknowledged that the Court was considering previous iterations of the Rule and guidance. In that appeal the applicant sought to join his wife in this country and was refused, in part, under paragraph S-EC.1.4 on the ground that he has served two periods of imprisonment in the United States; the first of four years and the second of sixteen months. He had not shown exceptional circumstances. The Court of Appeal allowed the entry clearance officer’s appeal observing that the provisions of paragraph S-EC.1.4 represented an authoritative statement of public policy, broadly consistent with relevant statute. Further, paragraph S-EC.1.4 had been intended to emphasis the public interest in maintaining refusal. The Court observed per curiam, at [41], that care is needed in the application of policy in paragraph S-EC.1.4 to the facts.
138. We have considered Professor Butler’s evidence with care. However, it reinforces our conclusion that the guidance is directed to conduct with the burden of proof placed upon an applicant. A forensic examination of whether a specific criminal offence established in the criminal legislation in this country precisely matches, or very nearly matches, a specific criminal offence in a foreign criminal code would, as advanced in this matter, require a decision-maker to consider the offence of fraud where the domestic requirement of “dishonesty” forms no part of the foreign criminal law requirement. On its face, as identified by Professor Butler, sections 2 and 4 of the 2006 Act do not match Article 159 of the Russian Criminal Code which requires “deceit” alone, with consideration directed to movement and not state of mind. A decision maker, and subsequently a tribunal, would be required to engage with technical nuances of foreign law, which is a question of fact that, for a tribunal, requires expert evidence: Hussein & Anor (Status of passports: foreign law) [2020] UKUT 00250 (IAC).
139. We agree with the respondent that the inquiry conducted under the guidance is one undertaken by the application of broad equivalence. We consider “broad equivalence” to be a useful guide, not a term of art, permitting consideration of the approach adopted to conduct in two separate legal regimes. It permits a functional assessment as to whether the underlying conduct is unlawful in both countries, or a comparison of sentencing regime, rather than a forensic examination of specific legal concepts or terminology. Such approach incorporates the role national sovereignty has in developing its own criminal legislation in respect of acts and omissions conducted by persons across the world.
140. Whilst the guidance expressly references two examples of conduct where an exception to the Rule may be exercised, we do not consider that they are determinative of possible exceptions. However, the burden falls upon an applicant to establish that their personal conduct is such to enjoy the exercise of discretion in their favour, and there is to be substance to the contention advanced in circumstances where the respondent relies upon a matter of public record as to a conviction for which a sentence of imprisonment has been imposed. In respect of reliability of conviction or absence of due process, the starting point in most instances will be the exhaustion or otherwise of appeal rights. The respondent and later a tribunal can properly expect such complaint to be initially advanced through appeal mechanisms established by the foreign legal regime. We recognised that to be effective, a remedy must be capable of providing adequate redress. It must offer a reasonable prospect of redress. This may not be possible in certain States, but such fact is an evidential question that requires expert evidence and the burden of proof rests upon an applicant.
141. We have noted Professor Butler’s concerns as to the safety of the appellant’s prosecution, particularly as to a failure by the authorities to arrange a confrontation. There is tension in the evidence of the appellant, who states that he could not file an appeal having agreed to cooperation, and the opinion of Professor Butler that appeals are widely initiated and are primarily a right of supervision in respect of a legal issue. We do not consider that anything turns on this. The appellant engaged in a pre-judicial cooperation agreement and even if an appeal right existed in respect of the conviction, rather than the sentence, we would not expect it to have been pursued in the circumstances.
142. We observe the appellant’s contention that his prosecution and conviction follow from his being targeted by the Russian authorities. If we considered the prosecution to have been political in substance, which we do not, the appellant could seek to rely upon the guidance because the core of his contention would be directed to his conduct. It would be open to him to say that there was no substance to the charge, and he could pray in aid a lack of due process. We accept the appellant entered into a pre-judicial cooperation agreement on the advice of his lawyer, CC. We accept that it was attractive to the appellant because it gave rise to a real likelihood that he would spend as little time as possible in detention in circumstances where pre-trial detention is not taken into account at the sentencing stage and there is an extremely high rate of conviction upon charges being brought before a court. We accept that CC gave professional, competent advice and that both the appellant and CC were expecting a sentence at the lower end of the sentencing scale, possibly avoiding custody altogether. However, we observe the information provided by the appellant to the Russian authorities consequent to the cooperation agreement assisted the investigation by divulging the acts of accomplices and providing information as to the distribution of resulting funds, addressed in the sentencing remarks. We find that this information was not known to the authorities and establishes to the requisite standard that the appellant was engaged in the criminal activity underpinning his convictions in Russia. We do not find his conviction in Russia to be the result of the exercise of arbitrary justice or that the prosecution was an affront to justice.
143. We conclude that the appellant secures no benefit from the guidance.
Paragraph S-EC.1.4(b)
144. The appellant meets the requirements of paragraph S-EC.1.4(b), and accordingly falls for refusal under section S-EC of Appendix FM. He does not secure benefit from the guidance.
Paragraph GEN.3.2(2) - Exceptional circumstances
145. We turn to the exceptional circumstances’ exception established by paragraph GEN.3.2(2) of Appendix FM. An entry clearance application as a partner considered under section EC-P and refused on conducive to the public good grounds under paragraph S-EC.1.4 is to be considered by a decision-maker under paragraph GEN.3.2 “on the basis of information provided by the applicant”. The question for the decision-maker, and in turn this panel on appeal, is whether there are exceptional circumstances which would render refusal of entry clearance a breach of article 8 ECHR because such refusal would result, in this matter, in unjustifiably harsh consequences.
146. We are mindful of the possibility of jigsaw identification. Whilst certain relevant facts may be addressed within this decision in general terms, the panel confirms that the specific facts and concerns relied upon by the parties have been placed into our consideration of exceptional circumstances.
Parties' cases
147. Mr Malik observed that the appellant engaged in pre-judicial cooperation and pleaded guilty on the advice of his lawyer because he was subject to a politically motivated prosecution where the statistical chances of being found not guilty were minimal. In the circumstances, the respondent cannot lawfully deem the appellant’s conviction sufficiently legitimate to render his exclusion from this country as conducive to the public good. The appellant therefore properly enjoys the benefit of the exceptional circumstances’ exception provided for by paragraph GEN.3.2.
148. As to article 8 ECHR generally, Mr Malik submitted that the respondent’s decision results in unjustifiably harsh consequences for the appellant and amounts to compelling compassionate circumstances. BA’s rights are fully engaged and properly to be taken into account. She cannot be expected to relocate to Russia to join the appellant as the authorities will be hostile to her British identity. Mr Malik addressed us on BA’s personal circumstances.
149. Mr Thomann observed that article 8 ECHR requires a balancing exercise. He accepted on behalf of the respondent that article 8 family life rights were engaged, the couple were in a genuine relationship, they have wider family, and there is no complaint that either BA or the appellant previously breached United Kingdom immigration control. However, the appellant has property in Russia, BA has returned to the country on occasion, the United Kingdom and Russia have consular relations and there is no cogent evidence before the panel demonstrating adverse consequences of persons residing in Russia with dual nationality. As to the circumstances of the conviction, the respondent observed the appellant’s willing engagement in the pre-judicial cooperation agreement with the Russian authorities and the information he provided as to the acts of accomplices and the distribution of funds. Mr Thomann accepted that BA has a difficult choice to make in either relocating to Russia or remaining in contact with the appellant from the United Kingdom by modern means of communication. However, the decision to exclude the appellant from this country on conducive to the public good grounds was underpinned by a clear policy statement of the executive and the attendant ten-year bar was not disproportionate. Consequently, no exceptional circumstances arise.
Analysis of exceptional circumstances
150. “Exceptional circumstances” means circumstances which could or would render refusal of entry clearance a breach of article 8 ECHR because refusal could or would result in unjustifiably harsh consequences. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. Additionally, “exceptional” does not mean “unusual”. Rather, it means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under article 8.
151. “Unjustifiably harsh consequences” are those involving a harsh outcome or outcomes which is not justified by the public interest which includes the maintenance of effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others. This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case.
152. The respondent has accepted that the appellant has a family life with BA that falls for protection under article 8 ECHR. We observe that family life may be engaged where an individual outside this country wishes to secure entry to join members of their family residing here, as confirmed by the Strasbourg Court in Abdulaziz, Cabales and Balkandali v United Kingdom (A/94 et al) (1985) 7 EHRR 471, at [59]-[60]. The principle was re-affirmed in Sen v Netherlands (31465/96) (2001) (36 EHRR 7, at [36]. The Court confirmed in Abdulaziz, Cabales and Balkandali that article 8 does not give a couple a right to choose where to live together.
153. We remind ourselves that article 1 of the ECHR determines the personal scope of the Member States and it follows that the Member States are the obligated parties under the Convention and the persons within their jurisdiction are the beneficiaries. Though article 1 is not incorporated domestically by the Human Rights Act 1998, it is given effect by the Act itself. In this appeal, BA is resident in the jurisdiction of the United Kingdom; the appellant is not.
154. The Court of Appeal recognised the unitary nature of a family for article 8 ECHR purposes in Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393, [2018] 1 WLR 533, at [17], with the consequence that interference with the family life of one person is an interference with the rights of all those within the ambit of the family whose rights are engaged. This was recognised by the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] AC 115 where it was held that the rights of all family members, and not only the person immediately affected, by a removal direction, must be considered in the article 8 balance.
155. In Abbas the Court cited at [17] the admissibility decision in Khan v United Kingdom (11987/11) (2014) 58 EHRR SE15. At [27] of its decision, the Strasbourg Court observed that the positive obligation under article 1 of the Convention rests, in large part, on the fact that one of the family members/ applicants is present in the Member State and is being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State.
156. The positive obligation owed by the United Kingdom in this appeal is therefore directed to BA, who is lawfully resident in the jurisdiction, and not to the appellant who resides in Russia. BA is therefore the primary focus of the proportionality assessment under article 8(2) ECHR.
157. Exceptional circumstances are to be established because it has been concluded by the respondent that it is conducive to the public good for the appellant to be excluded from this country. That conclusion underpins the public interest in the maintenance of immigration that is to be placed into the article 8 ECHR assessment. The appellant cannot establish exceptionality from his contention that he was subject to a politically motivated prosecution. By his conduct he was engaged in criminal activity that justifies the respondent excluding him from this country on conducive to the public good grounds.
158. In her oral evidence, BA confirmed her educational qualifications, aspects of her previous employment in Russia and her present circumstances. We observe her evidence as to her last visit the appellant in Moscow which post-dated her naturalisation. On balance, we do not accept BA will experience difficulties on relocating to, or visiting Russia, because she is a dual citizen, though we accept that this concern is genuinely held. She has not identified herself as a critic of the Russian authorities. We have considered the country objective evidence filed in this appeal and consider that it does not establish to the requisite standard that a dual citizen will face harassment or detention simply because they hold a second citizenship. We acknowledge that travelling to Russia presently requires transit through a third country. However, travel remains possible and whilst likely additional expense means, as explained by BA, “we cannot afford to do this as often as we would ideally like to”, it would be a personal decision taken by BA not to travel to meet the appellant. BA explained that she could meet the appellant in a third country, but he would be required to secure a visa to that country. No evidence has been filed establishing the appellant would be precluded from applying for third-country visas consequent to his conviction or not be permitted to journey outside Russia for a holiday. We were not asked to consider whether BA would be at risk of mobilisation if she returned to Russia.
159. Whilst the continued separation of AA and BA will adversely impact them if BA continues to reside in the United Kingdom, ultimately that would be consequent to a decision made by BA.
160. We conclude that the respondent’s decision to refuse the appellant leave to enter the United Kingdom and join BA on conducive to the public good grounds will not result in unjustifiably harsh consequences for either the appellant or BA. In the circumstances, we do not consider exceptional circumstances to exist in this matter.
Article 8 ECHR outside the Rules
161. Mr Malik did not address us as to the application of article 8 ECHR outside of the Rules.
162. In R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823 the Supreme Court addressed the weight that is to be given to the Rules in the context of an article 8 ECHR proportionality assessment. Lord Reed observed, at [47], that in considering how the balance is to be struck in individual cases, this panel has to “take the Secretary of State’s policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular cases”.
163. In undertaking our assessment, we adopt the balance sheet approach: Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. In doing so, we consider whether countervailing factors outweigh the importance attached to the public interest in the exclusion of foreign nationals on the ground of conducive to the public good. We acknowledge that not all factors placed in the assessment are equally weighted.
164. Section 117C of the 2002 Act establishes additional article 8 ECHR considerations in cases involving foreign criminals. Observing section 117D(2) of the 2002 Act, a foreign national who has been convicted outside the United Kingdom of an offence is not, by reason of that conviction, a “foreign criminal” for the purposes of section 117C: Cokaj (paras A398-339D: ‘foreign criminal’: procedure) [2020] UKUT 187 (IAC), [2020] Imm AR 1121. Consequently, the additional considerations are not applicable to the appellant in this appeal.
165. We are required to consider article 8 ECHR and the public interest by application of section 117B of the 2002 Act. Again, we observe that the positive obligation owed by the United Kingdom in this appeal is directed to BA and so she is the primary focus of the proportionality assessment. As noted above, we are mindful of the possibility of jigsaw identification. We confirm that the specific facts and concerns relied upon by the appellant and BA have been placed into our consideration of exceptional circumstances, though we identify them in general terms below.
166. On one side of the balance sheet we place the public interest in immigration control. The respondent’s reasoned and lawful conclusion that the exclusion of the appellant on conducive to the public good grounds enjoys weight in the assessment. Additionally, we have not been provided with evidence that the appellant fluently speaks English.
167. We accept that BA has sufficient funds through her employment and savings to ensure that the appellant would not be a burden on taxpayers when residing in this country and that the couple will reside at BA’s home. However, this is a neutral factor: Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, [2018] 1 WLR 5536.
168. On the appellant’s side of the balance sheet, we place the genuine and substantive nature of the relationship enjoyed by the appellant and BA. We accept that the relationship commenced before BA relocated to the United Kingdom and consequently weight is properly to be given to the relationship. We note BA is a British citizen, is employed in this country and has integrated into her local community. We observe familial relationships and friendships enjoyed in this country.
169. We conclude on the facts existing in this matter that the countervailing factors favourable to the appellant and BA do not outweigh the public interest in the appellant’s exclusion. The respondent’s decision strikes a fair balance between the interests of the appellant and BA and those of the public. There are no very compelling or exceptional circumstances.
Notice of Decision
170. By a decision sent to the parties on 25 October 2024 the Upper Tribunal set aside the decision of the First-tier Tribunal dated 12 December 2023.
171. The decision in this appeal is remade. The appellant’s human rights (article 8 ECHR) appeal is dismissed.
172. An anonymity order is made.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
17 November 2025