Tribunal decisions

The decision

IN THE UPPER TRIBUNAL Case No: UI-2024-005921
IMMIGRATION AND ASYLUM CHAMBER UI-2024-005922; UI-2024-005923

First-tier Tribunal No: HU/61476/2023 LH/06581/2024
HU/61477/2023 LH/06583/2024
HU/61478/2023 LH/06582/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On 28 March 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY
DEPUTY UPPER TRIBUNAL JUDGE MALIK KC

Between

ENTRY CLEARANCE OFFICER
Appellant
and

BERTHA CAROLYN DAVIES
SHEILA DANIELLE DAVIES
CHIMWEMWE KELLANA DAVIES
(ANONYMITY DIRECTION NOT made)
Respondents

Representation

For the Appellant: Mr Kavin Ojo, Senior Presenting Officer
For the Respondent: Mr David Sellwood, Counsel, instructed by Wilson Solicitors

Heard at Field House on 4 March 2025

DECISION AND REASONS

Introduction
1. This is an appeal by the Entry Clearance Officer (“the ECO”) against the decision of First-tier Tribunal Judge Krish (“the Judge”), promulgated on 18 November 2024. By that decision, the Judge allowed the appeals of Mrs Bertha Carolyn Davies (“Mrs Davies”) and her two daughters, Miss Sheila Danielle Davies (“Sheila”) and Miss Chimwemwe Davies (“Chimwemwe”), against the refusals of their applications for entry clearance to the United Kingdom.
Factual background
2. Mrs Davies is a citizen of Malawi, born on 4 May 1984. Her daughters, Sheila and Chimwemwe, were born on 30 September 2009 and 22 May 2011, respectively. They are also citizens of Malawi. Mrs Davies is married to Mr Richard Davies, a British citizen who is present and settled in the United Kingdom. She applied for entry clearance to join him on 28 June 2023, along with her daughters. The ECO refused their applications on 24 August 2023.
3. The ECO accepted that Mrs Davies met the relationship, financial, and English language requirements. However, the ECO took the view that she did not meet the suitability requirement under Paragraph S-EC.1.5 of Appendix FM to the Immigration Rules. The ECO held that her exclusion from the United Kingdom was conducive to the public good and stated:
“Records held in the United Kingdom indicate that you have been convicted of a criminal offence on 20/06/2008 and have been sentenced to imprisonment for 8 months. I accept that the offense was more than 5 years ago and that your application does not fall for refusal under S-EC1.4. of Appendix FM of the Immigration Rules. However I note that on your previous spouse visa application under Appendix FM, the ECO states that they were satisfied that you had made false representations and used deception as part of that application. They were satisfied that the circumstances of your imprisonment and of your removal were significantly different from how you had described them on the application form. In your sponsor’s letter dated 20/05/2023 they state that they admit that inaccurate information was included and that this was due to the fact that you had not received legal advice and that it was the first time that your immigration history and conviction had been discussed. However, the ECO noted that the circumstances were significantly different from how they were presented in your application form and they were satisfied that false representations had been made and deception had been used.”
4. The appeals brought by Mrs Davies and her daughters were heard by the Judge on 31 October 2024. At [29], the Judge found that there was no “deliberate intention to deceive” on the part of Mrs Davies. At [30]-[35], the Judge made an alternative finding that the refusal under Paragraph S-EC.1.5 of Appendix FM to the Immigration Rules was not justified in any event. The Judge was not satisfied that her exclusion from the United Kingdom would be conducive to the public good. Accordingly, the Judge held that Mrs Davies qualified for entry clearance under the Immigration Rules and that the refusal of her application was incompatible with Article 8 of the ECHR. In the further alternative, at [37]-[50], the Judge considered Article 8 independently and held that the refusal of entry clearance resulted in unjustifiably harsh consequences for the entire family. The Judge concluded that the ECO’s decision was disproportionate under Article 8. The Judge allowed the appeals in a decision promulgated on 18 November 2024.
5. The ECO was granted permission to appeal on 30 December 2024.
Grounds of appeal
6. There are two pleaded grounds of appeal.
7. The first ground of appeal advances two connected points. First, the Judge erred in holding that Mrs Davies’s 2008 conviction was a spent conviction and failed to attach the correct weight to it. Second, the Judge erred in finding that there were insurmountable obstacles to family life continuing outside the United Kingdom and placed undue weight on the reasons given by Mr Davies for not wishing to relocate to Malawi.
8. The second ground of appeal contends that the Judge made an irrational finding in holding that Mrs Davies was of good character and failed to consider relevant factors in assessing proportionality under Article 8.
Submissions
9. Mr Kavin Ojo, who appeared for the ECO, made no oral submissions. However, as will be seen below, in response to our questions, he provided helpful clarification of the position taken by the ECO before the Judge.
10. Mr David Sellwood, who appeared on behalf of Mrs Davies and her daughters, relied on his Rule 24 Response. He submitted that the Judge made no material error of law and invited us to uphold the decision.
Immigration Rules
11. Paragraph S-EC1.4. of Appendix FM to the Immigration Rules provides:
“The exclusion of the applicant from the UK is conducive to the public good because they have:
(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
(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
(c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.”
12. Paragraph S-EC1.5. of Appendix FM to the Immigration Rules provides:
“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.”
Applicable legal principles
13. We bear in mind the following well-established principles as to the approach in appeals from the decisions made by the First-tier Tribunal.
14. First, the First-tier Tribunal is a specialist fact-finding tribunal, and the Upper Tribunal should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678, at [30].
15. Second, where a relevant point is not expressly mentioned by the First-tier Tribunal, the Upper Tribunal should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 [2011] 2 All ER 65, at [45].
16. Third, when it comes to the reasons given by the First-tier Tribunal, the Upper Tribunal should exercise judicial restraint and should not assume that the First-tier Tribunal misdirected itself just because not every step in its reasoning is fully set out: see Jones v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625, at [25].
17. Fourth, the issues that the First-tier Tribunal is deciding and the basis on which the First-tier Tribunal reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095, at [27].
18. Fifth, judges sitting in the First-tier Tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145, at [34].
19. Sixth, it is the nature of the fact-finding exercise that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 [2017] WLR 1260, at [107].
Discussion
20. The primary point made by the ECO in the pleaded grounds of appeal is directed to the Judge’s reasoning, at [26], namely:
“However, the credibility or otherwise of that account is not what I am being asked to consider. It is not for me to retry that issue. The appellant either pleaded guilty or was found guilty of an offence in relation to this incident and received a prison sentence, which she has served. The conviction is now spent. I did not have an indictment or the sentencing judge’s sentencing remarks, so I simply do not know what was said at the time of sentence, either by her counsel or by the judge.”
21. The pleaded grounds of appeal submit that the 2008 conviction was not spent pursuant to section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The relevant provisions of the Rehabilitation of Offenders Act 1974 do not apply in relation to immigration decisions.
22. This ground, with respect, is a red herring, and Mr Ojo was right not to develop it in his oral submissions.
23. The ECO did not rely on the 2008 conviction to justify the exclusion of Mrs Davies from the United Kingdom as conducive to the public good. The relevant part of the ECO’s decision is quoted above. The ECO had refused Mrs Davies’s application under Paragraph S-EC1.5 of Appendix FM to the Immigration Rules on the ground that she had made false representations and used deception in her previous application for entry clearance made on 22 March 2021. Mr Sellwood’s skeleton argument, dated 8 February 2024 and filed at the First-tier Tribunal, raised that point and sought to argue that there was no deception. The ECO filed a written review of that skeleton argument and accompanying evidence on 31 May 2024. There was no suggestion in that document that the ECO was relying on the 2008 conviction to justify the decision under Paragraph S-EC1.5 of Appendix FM to the Immigration Rules. Mr Ojo, answering our question, accepted that no reliance was placed on the 2008 conviction in the review.
24. Accordingly, the fact that the 2008 conviction is not a spent conviction is of no consequence. The ECO did not ask the Judge to find that the exclusion of Mrs Davies was conducive to the public good because of that conviction. The Judge’s comment at [26], to the effect that the conviction was spent, was erroneous but immaterial to the outcome.
25. In fact, it was the ECO who suggested to the Judge that the 2008 conviction was a spent conviction. The ECO filed a bundle of documents below, including a document which, under the heading “Immigration History”, stated:
“Criminal Case - 18/07/2008 – 8 months custodial sentence – conviction now spent”.
26. The Judge, at [3], quoted this description and proceeded on that basis. Accordingly, when the Judge observed that the 2008 conviction was a spent conviction, she was simply adopting the information provided by the ECO. Although the information was incorrect, it ultimately made no difference, as the ECO did not rely on that conviction to refuse Mrs Davies’s application on suitability grounds.
27. The key issue of fact before the Judge, as noted at [11], was whether Mrs Davies had made false representations and used deception in her previous application for entry clearance made on 22 March 2021. The Judge carefully considered this issue but was not satisfied that Mrs Davies was dishonest. The burden of proof was on the ECO, and the Judge held that it was not discharged. The ECO has not challenged the Judge’s finding on the issue of dishonesty. On the principles set out above, there is no proper basis for us to interfere with that finding.
28. It follows that the Judge was entitled to conclude that Paragraph S-EC1.5 of Appendix FM to the Immigration Rules did not apply. As noted above, the ECO accepted that all eligibility requirements in the Immigration Rules were met. It is well-settled that where a person satisfies the Immigration Rules, this will be positively determinative of that person’s Article 8 claim: see TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 [2018] Imm AR 1301, at [34]. Based on her finding that there was no deception on the part of the Appellant and that the relevant Immigration Rules were met, the Judge was entitled to allow the appeal on Article 8 grounds.
29. In the circumstances, there is no need for us to consider the Judge’s alternative findings on (a) the balancing exercise under Paragraph S-EC1.5 of Appendix FM to the Immigration Rules, (b) insurmountable obstacles and relocation to Malawi, (c) unjustifiably harsh consequences, and (d) proportionality under Article 8. The remaining points made in the grounds of appeal are academic and incapable of affecting the ultimate outcome.
Conclusion
30. For all these reasons, we conclude that although the Judge’s decision contains an error regarding the status of the 2008 conviction, it is not an error of law that justifies setting aside the decision. We uphold the Judge’s decision and dismiss the ECO’s appeal.

Notice of decision
31. The First-tier Tribunal’s decision is upheld and shall remain in effect.

Anonymity
32. We consider that an anonymity order is not justified in the circumstances of this case, having regard to the Presidential Guidance Note No 2 of 2022, Anonymity Orders and Hearing in Private, and the overriding objective. We make no order under Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Zane Malik KC
Deputy Judge of Upper Tribunal
Immigration and Asylum Chamber

Date: 25 March 2025