Entry Clearance Officer -United States of America v MW (United States of America) & Ors [2016] EWCA Civ 1273

Case No C5/2015/1304[2016] EWCA Civ 1273
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr Justice Haddon-Cave and Upper Tribunal Judge Clive Lane
OA/10645/2013, OA/10646/2013, OA/10647/2013
& OA/10648/2013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/12/2016
Before
THE MASTER OF THE ROLLSLADY JUSTICE KINGLORD JUSTICE IRWIN
Between
ENTRY CLEARANCE OFFICER - UNITED STATES OF AMERICAAppellantMW (UNITED STATES OF AMERICA) AND OTHERSRespondents
Mr John Paul Waite (instructed by Government Legal Department) for AppellantMs Deborah Revill (instructed by Direct Access Scheme) for RespondentsHearing Hearing date: 09/11/2016
JudgmentSir Terence Etherton MR, Lady Justice King, Lord Justice Irwin:Introduction
[1]This is the judgment of the Court.[2]The issue in this appeal is the interpretation and application of paragraph S-EC.1.4 of Appendix FM to the Immigration Rules, dealing with entry clearance for a foreign national with significant previous criminal convictions.

Facts

[3]The facts are essentially common ground. The First Respondent is an American citizen, resident in California. He was born in 1968. On 22 April 2005 he was convicted of an offence for which he received a sentence of imprisonment of four years. Further, on 19 May 2008, he was convicted of another offence, for which he was sentenced to imprisonment of 16 months. He was released on parole in May 2008, and was fully discharged from parole in May 2011. We set out below the further findings of the First Tier Tribunal in relation to the First Respondent.[4]After the First Respondent’s release from prison he met and in 2012 married Lisa Whitby Flack. She has acted as his “sponsor”. She gave evidence before the First Tier Tribunal. She is a British national and resident, who at the time of the Tribunal hearing had been working for 13 years as a fire fighter. She has extensive family connections in Britain, owns her own home and has close relationships with her parents and extended family. The evidence was that she had formed close relationships with the First Respondent’s children. It was not practical for her to move to the United States, since she is debarred there from following her occupation of fire fighter, by reason of American stipulations on age.[5]The Tribunal found that all parties, including the mother of the children and the mother’s relatives in the United States, as well as Ms Flack’s family in the United Kingdom, were content for the children to move to the United Kingdom. There was evidence that suitable arrangements could be made for the children’s schooling in the United Kingdom. There was no evidence adduced before the Tribunal that the children were in unsatisfactory conditions in the United States.[6]The First Respondent was refused entry clearance on 8 April 2013. The basis of his application was as a “partner under Appendix FM of the Immigration Rules”. The reasons for refusal were given as follows:
“You have sought entry clearance to the United Kingdom as a partner under Appendix FM. However, on 22 April 2005 you were convicted of an offence for which you were sentenced to a period of imprisonment of 4 years. Also, on 19 May 2008 you were convicted of an offence for which you were sentenced to a period of imprisonment of 16 months. Consideration has been given to whether there are compelling factors as to why you should nevertheless be allowed entry to the UK. However, the circumstances you have put forward are not considered to amount to exceptional circumstances. I have also considered your application under Article 8 of the Human Rights Act 1998 and I am satisfied that the decision is justified and proportionate. It is such that the public interest in maintaining refusal is outweighed [sic]. I am therefore refusing your application under paragraph S-EC.1.4 (a and b) and S-EC.1.5 of the Immigration Rules.”
[7]The Entry Clearance Officer stated that the other requirements for entry had been fulfilled. The applications of the other Respondents were refused as a consequence of the refusal of the First Respondent.

The First Tier Tribunal

[8]The hearing before the First Tier Tribunal took place on 18 February 2014. At the outset of the hearing, the Respondent’s advocate conceded that the appeals would fail under the Immigration Rules, and she relied on Article 8 of the European Convention on Human Rights. Both sides agreed that the appeal turned on the “proportionality and justification” of the decision to refuse entry, in the light of the First Respondent’s criminal convictions. The applications fell to be considered under paragraph S-EC.1.1 to 1.4 of Appendix FM of the Immigration Rules, as amended.[9]The relevant parts of S-EC.1 read as follows: “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. … S-EC.1.3. … S-EC.1.4. 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. 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 factors. ” (HC76013.12.2012) S-EC.1.2. …

S-EC.1.3. …

[10]The principal argument of the Appellant before the First Tier Tribunal was that the last sentence of S-EC.1.4 meant the Tribunal was precluded from considering an Article 8 Convention claim (or by implication, any other claim based on a qualified Convention Right), unless and until “compelling factors”, arising in “exceptional circumstances” arose. In other words, the submission was that the provisions of S-EC.1.4 represent not merely public policy laid down by the Secretary of State, but a prescription by the Secretary of State as to how the Tribunal is constrained in its approach to such an application, erecting a threshold before a Convention claim can even be considered.[11]The Tribunal was referred to some of the principal decisions then available on deportation of “foreign criminals”, meaning those foreign nationals who have been convicted in the United Kingdom of an offence and sentenced to 12 months, and/or 4 years, or more, bringing them within the automatic deportation provisions laid down in S.32 of the UK Borders Act 2007 [“the 2007 Act”], and within paragraphs A398, 399 and 399A of the Immigration Rules. Specifically, the Tribunal was referred to Gulshan (Article 8 – new rules – correct approach) [2013] UKUT 640 (1AC), Nagre v SSHD [2013] EWHC 720; Izuazu [2013] UKUT 45 (1AC), and Green (Article 8 – new rules) [2013] UKUT 393 (1AC). In the course of her decision,

Judge Lingam stated (paragraph 15):

“I accept that although all of the decisions relate to a removal decision, the principles in the decision apply in the appeal before me.”
[12]However, despite apparently accepting that the principles from the deportation cases applied in the appeal before her, Judge Lingam did not start with a preliminary consideration of whether there were “compelling factors” arising in circumstances which were “exceptional”, before entertaining the Article 8 claim. Rather, she simply proceeded to consider the claim itself.[13]We note that it does not appear that the territorial jurisdiction of the European Convention was given any consideration in this case. On the face of it, the jurisdiction arises only in respect of the sponsor, a British citizen and resident, and not directly in the case of the Respondents, who were not British nationals, and were neither resident nor present in the United Kingdom, or elsewhere within the territorial jurisdiction of the Convention. Mr Waite for the Appellant indicated he took no point on this before us. Following the decision of R (Box) v SSHD [2002] UK IAT 02212, the First Tier Tribunal accepted that the Article 8 claim was founded on the State’s positive obligation to respect private and family life.[14]The Tribunal proceeded to address the five relevant questions for consideration in Article 8 claims, as identified by Lord Bingham in R v SSHD (Ex parte Razgar) [2004] UKHL 27. It was not contested that the First Respondent and his sponsor had formed “an Article 8 family life”, although intermittent, and formed and maintained in America, or remotely. The Tribunal accepted that there was sufficient evidence to demonstrate the decision would interfere with the exercise of that family life, and that the interference would be of such gravity that it would engage the operation of Article 8. Judge Lingam accepted that the decision to refuse entry was in accordance with the law, but proceeded to consider whether the exercise of effective immigration control was proportionate and justified, reciting the fourth and fifth Razgar questions.[15]Having recited the background,

Judge Lingam stated her key conclusions as follows:

“41. Regarding A1’s criminal record, I take into account the US court observations regarding the appellant’s offences: “[The] Court exercises discretion pursuant to Penal Code 1385 and strikes prior of 667.5(b) PC, sequence *3, dated 07/26/1999 for the following reason(s): The current offense is not a violent or serious felony; there was no injury or threat of injury to any person in the current offense; and the defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process in the current case.”
. I accept that there is also evidence to show that since his release on parole from imprisonment, he has been drug free. 42. I take account that the US family court which would have probably been aware of A1’s past conviction, was content to grant full residence order for his three children to A1. The family court was further satisfied that in the event A1 were to move to the UK he would maintain his responsibilities for his children and has made suitable contact provisions for the children and their mother. Therefore, the court is satisfied that A1 is a responsible and trustworthy parent who would ensure the well being of his children is preserved. 43. Moreover, I place weight on the views of those who have met the appellant including that of the sponsor, to accept that A1 has probably put his past behind him and changed for the better. I accept that his obligations towards his children and his marriage to the sponsor are the two most important positive factors in A1’s life. Having the decisions in mind, I accept that A1’s past criminal record is not a sufficient reason or ground to prevent his entry to the UK. 44. In addition, I accept that if the appellants were not allowed to join the sponsor in the UK, the sponsor would be forced to terminate a secure job as well as the security of her home, which she has built over the years. I accept it [is] significant that if the appellant (sic) were to re locate to the UK (sic), she would not be able to continue fulfilling her public service as a fire fighter because of the ‘age’ requirement in the US. Therefore, the sponsor would be forced to re train to find alternative employment. I accept that the change would be significant because A1 works as a plumber and he lives with his mother to cope with his childcare responsibilities. I accept that the inclusion of the sponsor without access to immediate employment in the US, would cause an additional financial burden on A1 and on the appellants’ current living arrangements in the UK. Whereas, in the UK, the sponsor would maintain her well paid secured job, a house to the appellants’ disposal, a new social and family network, a job arranged for A1 and the children being able to resume their education following arrival in the UK. I accept that the suitable country where the established family life can be preserved and developed is the UK. For those reasons, I accept that the continued denial of entry to the appellants would cause the sponsor to suffer unreasonable personal losses including the loss of all of her other benefits as a British citizen including her potential rights under the EU law. 45. In totality, I accept that the decision to deny entry clearance on grounds relied on by the respondent, is disproportionate and unjustified under Article 8 ECHR. I accept that the decision causes the UK to act in breach of its obligations under ECHR.”[16]Save by implication in the short passage at the end of paragraph 43, the judge did not address whether “compelling factors” existed in the case which outweighed the public interest and, if so, why so.

The Upper Tier Tribunal

[17]The Appellant appealed to the Upper Tier Tribunal, where the matter was heard on 9 July 2014, before a constitution consisting of Haddon-Cave J and Upper Tribunal Judge Clive Lane. The Tribunal reserved its decision, which was promulgated on 16 January 2015. The Ground 1 of Appeal to the Upper Tribunal read:
“The judge erred in law by failing to identify ‘an arguable case that there may be good grounds for granting leave outside the Rules by reference to Article 8’ or to ‘consider whether there are compelling circumstances not sufficiently recognised under the Rules to require the grant of such leave’ per Nagre [2013] EWHC 720 (Admin).”
[18]At the hearing on 9 July 2014, the UTT directed both parties to file and serve written submissions addressing the above Ground of Appeal. Counsel representing the First Respondent did so. However, no submissions were received from the Appellant.[19]The UTT noted the decision of this Court in MM v SSHD [2014] EWCA Civ 985, which contained a summary of authorities bearing on deportation cases in paragraphs 130 to 135. The UTT laid particular stress on the analysis in MM of the decision in MF (Nigeria) v SSHD 2013] EWCA Civ 1192, where this Court considered the then new paragraphs 398-399A of the Immigration Rules. After reviewing MF (Nigeria) and further authority, the Court in MM concluded as follows: “Where the relevant group of [Immigration Rules], upon their proper construction, provide a "complete code" for dealing with a person's Convention rights in the context of a particular IR or statutory provision, such as in the case of "foreign criminals", then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although references to "exceptional circumstances" in the code will nonetheless entail a proportionality exercise. But if the relevant group of IRs is not such a "complete code" then the proportionality test will be more at large, albeit guided by the Huangtests and UK and Strasbourg case law.” (paragraph 135)[20]With that conclusion in mind, the UTT in the instant case considered the submissions of Ms Revill, counsel then and now appearing on behalf of the Respondents. The UTT agreed with her submission that S-EC.1.4 also provides for a “comprehensive code”, in a similar way to the provision in the Immigration Rules for those liable to automatic deportation but relevant to those seeking entry clearance. However, by way of contrast to the deportation provisions in paragraphs 398 to 399A, they concluded S-EC.1.4 does not provide for an “exceptional circumstances” approach,. The wording of the last part of S-EC.1.4 meant that:
“The specific provisions of the rule be applied, followed then by an assessment as to whether the Human Rights Convention … would be breached by excluding an applicant, and then for a consideration of any “exceptional circumstances”
. Following the ratio of MF, the last stage of that process would appear to be nugatory, given that a proper assessment of an applicant’s human rights and “exceptional circumstances” should produce the same result.” (paragraph 14)[21]The UTT therefore rejected the submission that the Tribunal Judge erred because she failed to identify “case-specific compelling circumstances” before being entitled to consider an appeal on Article 8 grounds. Such an approach would be contrary to the wording of the Rule itself.[22]For those reasons, the UTT dismissed Ground 1 of the appeal before them.[23]There was a second Ground before the UTT. The Appellant complained that the First Tier Tribunal had failed to consider properly, or at all, the Appellant’s “precarious immigration status” in the course of evaluating proportionality under Article 8. The UTT rejected this Ground also. They noted that the Entry Clearance Officer had recorded that the First Respondent met “relationship requirements”, and the application for permission to appeal to the UTT contained no suggestion that the judge was wrong in stating that both parties agreed family life existed. The UTT were not persuaded that the:
“judge’s failure to refer in the Determination to a circumstance of which she was patently aware constitutes an error of law or one so serious that it would justify the setting aside her Determination”
. Therefore the appeal was dismissed.

Appeal to the Court of Appeal

[24]The Appellant was given permission to appeal on the First Ground only, namely the approach to an Article 8 question under S-EC.1.4. Permission was refused by Sharp LJ on the Second Ground, which turns on the Respondent’s “precarious immigration status”. A renewed application for permission on this Ground was made to us, which we granted.

The Submissions

[25]In the course of argument, Mr Waite abandoned the submission that the provision of S-EC.1.4 precluded a Tribunal from even considering an Article 8 claim, until “compelling factors” and/or exceptional circumstances were demonstrated. This was an abandonment of the first part of Ground 1, and of the critical point on which the Upper Tribunal had rejected the appeal before them. However, Mr Waite emphasised the second element of Ground 1: even if those matters are not a threshold to entertaining a claim, they do represent important statements of public policy which must be expressly considered and addressed before such an appeal may be allowed. He argued there should be consistency with the deportation cases:
“Essentially the same approach should be taken whether the case is concerned with entry clearance or with deportation save where the circumstances dictate a different approach.”
[26]Mr Waite cited a number of additional cases dealing with deportation, including MF (Nigeria) v SSHD [2013] EWCA Civ 1192; LC (China) v SSHD [2014] EWCA Civ 1310; SSHD v AJ (Angola) [2014] EWCA Civ 1636; and SSHD v AQ (Nigeria) and Others [2015] EWCA Civ 250. He argued that decision-makers must have close regard to the weight of factors required under the Rules to tip the balance of proportionality away from deportation, “or here, in favour of entry”.[27]In the course of the hearing before us, the differences between the parties as to the meaning of the critical final paragraph in S-EC.1.4 appeared to narrow. A reading of the text was put to the parties by King LJ, and the parties were given a short opportunity to reflect and discuss the matter. In addition, within a week of the hearing before us, the decision in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 was handed down by the Supreme Court. The parties were able to consider that decision before making final written submissions.[28]In Hesham Ali, the Supreme Court considered IR 398/399, the “New Rules” governing deportation. It is not necessary for us to engage in a full review of that decision. We note briefly that Lord Reed, with whom the majority agreed, observed that the Immigration Rules, including the “new rules”, are not law, although they are for some purposes treated as law (paragraph 17); they represent an authoritative statement of policy (paragraph 17 and passim), consistent with Parliament’s view of the public interest as enshrined in Sections 32 and 33 of the 2007 Act (paragraph 14); that the term “exceptional circumstances” in Rule 398 does not mean that a test of exceptionality is to be applied, but indicates a “departure from a general rule” (paragraphs 36 to 38); that the “new rules”, even if aptly described as a “complete code”, do not alone govern appellate decision-making, despite dicta to that effect in recent cases such as LC (China) and AJ (Angola) (paragraphs 51 and 52), since the obligation to consider convention rights remains, although the policies adopted and expressed in the Rules are an important consideration for tribunals considering such appeals (paragraph 53).[29]Following consideration, including consideration of Hesham Ali, counsel for both parties indicated, subject to one disputed word, they were agreed on the following formulation as the correct construction of S-EC.1.4:
“Where this paragraph applies, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by [very] compelling factors, unless refusal would be contrary to the Human Rights Convention, or to the Convention and Protocol relating to the Status of Refugees.”
[30]Mr Waite submits that the construction should include the emphasis “very” compelling reasons, no doubt in reliance on the dicta concerning the “new rules” in MF (Nigeria).[31]The parties also agreed, up to a point, as to the approach to be followed by a Tribunal when considering an Article 8 appeal in this context. They agreed that, where this paragraph applies, a tribunal must determine that appeal in accordance with the principles derived from the Strasbourg and domestic jurisprudence. The Tribunal will need to take account (inter alia) of(i) the absence of immigration status when a relationship was entered into and/or(ii) the fact that the rule contains a statement of policy (endorsed under the negative resolution procedure) as to what the SSHD considers to be in the public interest. Thus far the parties now agree.[32]As we have indicated, the Appellant goes on to submit that there is an equal weight to be attached to the public interest in refusal of entry under these provisions, to that which arises under paragraphs 398 to 399A in the context of deportation. The Respondent rejects this, on two grounds. Firstly, as a matter of construction, paragraph S-EC.1.4 simply does not operate in the same way as paragraphs 398 to 399A. Secondly, the public interest in deportation as expressed in the Rules arises through the will of Parliament, since it is rooted in primary statute (the 2007 Act), whereas the public interest in refusing entry clearance arises from executive policy, meaning that less weight attaches to it.[33]Further, the Respondent argues that there is good sense in the distinction between the two formulations. Parliament can be taken to understand the significance of a twelve month, or alternatively four year, prison sentence passed in the United Kingdom. Such sentences will be a signifier of serious offending. Sentencing practice and the criminal law abroad is very much more variable. Not infrequently, criminal liability and significant sentences may be imposed for matters which do not even constitute criminal conduct in the United Kingdom.

Conclusions

[34]Mr Waite was wise to abandon the submission formerly made by the Appellant that S-EC.1.4 represents a prescriptive threshold to the consideration of a Convention claim.[35]We are not moved by the argument advanced by Ms Revill for the Respondent based on the “source” of S-EC.1.4. The provisions were laid before Parliament, subject to negative resolution. Once the question no longer arises as to whether they operate as a constraint on judicial consideration of Convention rights, it seems to us unnecessary to examine further whether S-EC.1.4 bears quite the authority of other provisions based on primary statute. The provisions do represent an authoritative statement of public policy, broadly consistent with the 2007 Act and the “new rules”, and as such must be considered carefully (and expressly) by a Court or Tribunal considering a case to which they apply.[36]The wording of the last sentence in S-EC.1.4 is on any view rather clumsy. Exactly the same wording appears in paragraph 320(2) of the Immigration Rules, also concerned with entry clearance, and was considered by this court in R (Sehwerert) v Entry Clearance Officer [2015] EWCA Civ 1141. In the course of his judgment, with which McFarlane and Sales LJJ agreed, Richards LJ said:
“24. The original decision of the ECO found that the appellant fell within paragraph 320(2)(b) and that there were no “exceptional circumstances” to justify the grant of entry clearance. The ECHR, in particular article 10, became a feature of the case only later. The written submissions on behalf of the appellant, and some of Miss Jegarajah’s oral submissions, wrapped up the arguments under article 10 with the question whether there were exceptional circumstances justifying the grant of entry clearance. It is clear from the wording of paragraph 320(2), however, that the question of exceptional circumstances is distinct from the question whether refusal of entry clearance would be contrary to the ECHR. If refusal would be contrary to article 10, that is an independent reason for entry clearance to be granted. If refusal would not be contrary to article 10, it is difficult to see how exceptional circumstances could be established by reference to article 10; but it is sufficient in any event to concentrate on article 10 without complicating the analysis by considering whether the circumstances are exceptional within the meaning of the rule.”
[37]In our view the intention behind S-EC.1.4 was to emphasise the public interest in maintaining refusal. The intended meaning was that compelling factors will usually be required to outweigh the public interest in maintaining refusal. That is consistent with the approach in deportation cases. In MF (Nigeria), this Court emphasised that, in considering the deportation of foreign criminals where the provisions of paragraphs 399 and 399A do not apply, then “very compelling reasons will be required to outweigh the public interest in deportation” (paragraph 43). We consider that the policy here must carry similar weight, and the emphasis marked by the phrase “very compelling reasons” is appropriate. 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.[38]This approach is also consistent with the approach in Sehwerert.[39]However, we accept that there may be important distinctions in the application of the policy, as Ms Revill has argued. In a deportation case, the UK conviction and sentence arise within a familiar legal system, and can be taken to be reliable indicators of the severity of the criminality, and thus the degree of public interest in deportation. In cases of application for entry, the same does not apply in all cases. The illustration arose in argument that, in a number of countries, homosexual acts lawful here are regarded as criminal and can be visited with imprisonment for four years or longer. Such circumstances might well be relevant to a Convention or asylum claim.[40]Mr Waite accepted this point, and took us to a document published in April 2016 by UK Visas and Immigration for the guidance of Home Office Staff, the relevant part of which reads:
“Convictions outside of the UK You must only take account of the sentence imposed and not seek to identify what are the comparable offences in the UK. However, a person may have a sentence for an act which would not constitute a criminal offence in UK, for example, homosexuality or proselytising (to convert someone from one religious faith to another). Such an offence should be treated as an exception.”
[41]It follows that where a foreign conviction is based on an act which would not be criminal in the United Kingdom, Home Office guidance recognises that it would be inappropriate to apply the policy laid down. A similar question may arise where a severe foreign sentence is passed in respect of an act which would constitute a criminal offence in this country, but where the sentence is wholly disproportionate to any sentence which might be imposed here: an illustration might be a minor public order offence committed in a country with an oppressive regime. That question does not arise in this case, but the point emphasises the need for care in the application of the policy when considering the facts.[42]As indicated, we gave permission to argue the second ground of appeal, namely that the First Tier Tribunal should have had regard to the fact that the Respondents had no current immigration status in the United Kingdom. The term “precarious” immigration status is not helpful here. We are not convinced that the judge failed to take this matter into account. She was fully alive to the facts and circumstances, amongst the most obvious and relevant of which were that the Respondents had no leave to enter, had not entered, had no immigration status in the United Kingdom, and indeed that all direct contact between the sponsor and the Respondents has been in America. We dismiss the appeal on this Ground.[43]We allow the appeal on the remaining part of ground 1. The decisions of the First Tier Tribunal and the Upper Tribunal are quashed. The matter must be remitted to the First Tier Tribunal for rehearing.

Cited in 2 later judgments