SA (India) v Secretary of State for the Home Department [2015] EWCA Civ 791

Case No C5/2014/3947[2015] EWCA Civ 791
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Monday, 8 June 2015
Between
SA (INDIA)Applicant
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SALES
v
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentDAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Mr Parkin (instructed by David Wyld and Co Solicitors) appeared for Applicant for The Respondent was not present and was not representedJ U D G M E N T
[1]This is an application for permission to appeal renewed orally, permission having been refused on the papers by Floyd LJ by order dated 6 February 2015.[2]It is an application in relation to a second appeal and accordingly the usual restrictive principles apply. Permission will only be granted if the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.[3]The background is that the Applicant applied for leave to enter on the basis of a relationship with a person already settled in the United Kingdom. The entry clearance officer was not persuaded that this was a genuine subsisting relationship, but that finding was overturned on appeal to the FTT.[4]However, as a distinct matter leave to enter was refused by the FTT on grounds of application of paragraph 320(11) of the Immigration Rules. That provides:
"In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply: Grounds on which entry clearance or leave to enter the United Kingdom is to be refused... (11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by: (i) overstaying; or (ii) breaching a condition attached to his leave; or (iii) being an illegal entrant; or (iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the redocumentation process."
[5]In this case, the background circumstances include use by the Appellant of more than one document which was found to be fraudulent and using such false documents in an attempt to gain entry clearance on more than one occasion.[6]The FTT considered that that these constituted aggravating circumstances sufficient for satisfaction of paragraph 320(11) in conjunction with paragraph 320(11)(iv). The Upper Tribunal dismissed the appeal in relation to that.[7]The submission before me today is essentially a submission of law which I would accept is, if right, of considerable significance and importance such as to constitute an important point of principle or practice for the purposes of the second appeal test. However, I refuse permission to appeal on the grounds that it does not give rise to an arguable contention of law with a real prospect of success on appeal.[8]The argument is that for the purposes of paragraph 320(11) the aggravating circumstances referred to have to be distinct from the basic conditions identified in sub-paragraphs (i) to (iii) and (iv), which are relied upon for the purposes of application of that paragraph. Therefore, it is said, although the Appellant may have used false documents on more than one occasion in an attempt to use deception to obtain leave to enter, that cannot be regarded as aggravating circumstances for the application of the latter part of the paragraph. It is suggested that the aggravating circumstances have to be of an altogether different character.[9]I do not consider that this gives rise to an arguable point of construction with any real prospect of success on appeal. It is plain that the matters listed in sub-paragraph (iv), using deception in an application for entry clearance, overlap with items in the list of other aggravating circumstances, including using an assumed identity or multiple identities or switching nationality. The two parts of the test are not in hermetically sealed boxes.[10]That being so, I do not consider that there is any real prospect of success on appeal. The FTT and the Upper Tribunal were, in my view, plainly entitled to consider that the use of multiple false documents on more than one occasion in an effort to use deception to obtain leave to enter constituted aggravating circumstances sufficient for application of paragraph 320.[11]Accordingly, permission to appeal is refused.