The Entry Clearance Officer v Oniel Spence [2026] EWCA Civ 722

[2026] EWCA Civ 722CA-2025-001060
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Reeds and Deputy Upper Tribunal Judge Moxon
UI-2024-004326
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 June 2026
Before
LORD JUSTICE SINGHLORD JUSTICE LEWISLADY JUSTICE ELISABETH LAING
Between
THE ENTRY CLEARANCE OFFICERAppellantONIEL SPENCERespondent
Zane Malik KC (instructed by Government Legal Department) for AppellantZainul Jafferji and Huzefa Broachwalla (instructed by Abbott Solicitors) for RespondentHearing Hearing date: 19 May 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 9 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against a decision of the Upper Tribunal dismissing an appeal against a decision of the First-tier Tribunal dated 18 August 2024. By that decision, the First-tier Tribunal had allowed an appeal against a decision of the appellant, the Secretary of State for the Home Department, refusing the respondent, Oniel Spence, entry clearance to enable him to enter the United Kingdom.[2]In brief, Mr Spence is a national of Jamaica. His wife, and 11-year-old daughter are British nationals. They have always lived in the United Kingdom. Mr Spence has never lived with them. He applied for entry clearance to enable him to come to the United Kingdom. An entry clearance officer refused that application as the exclusion of Mr Spence from the United Kingdom was considered conducive to the public good because of his character, conduct and associations. Mr Spence had been convicted in the United States of America of a sexual offence against a child and sentenced to three years’ imprisonment. The entry clearance officer also considered whether there were exceptional circumstances which would render a refusal of entry clearance a breach of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The entry clearance officer concluded there were no such exceptional circumstances.[3]On appeal, the First-tier Tribunal decided that the refusal of entry clearance was not compatible with Article 8 of the Convention because it did not consider that exclusion of Mr Spence from the United Kingdom was conducive to the public good. The Upper Tribunal dismissed an appeal against that decision.[4]There are five grounds of appeal. In fact, it is only necessary to deal with one of those grounds, namely ground 4 which is that:
“The First-tier Tribunal’s ultimate conclusion was inadequately reasoned and perverse”
. LEGAL FRAMEWORK The provisions governing the grant of entry clearance

LEGAL FRAMEWORK

[5]Subject to immaterial exceptions, a person who is not a British citizen shall not enter the United Kingdom unless he has been given leave to enter: see section 3(1) of the Immigration Act 1971 (“the 1971 Act”). Section 3(2) provides for the Secretary of State to lay statements of the rules as to the practice to be followed for regulating entry into, and stay in, the United Kingdom. These are the Immigration Rules.[6]Appendix FM to the Immigration Rules governs the grant of leave to enter on the basis of a person’s family life. It sets out the requirements that have to be met, reflects how the balance is to be struck between the right to respect for private and family life under Article 8 of the Convention and the legitimate aims justifying interference with that right, and deals with the provisions of Part 5A of the Nationality, Asylum and Immigration Act 2002 (“the 2002 Act”) and section 55 of the Borders, Citizenship and Immigration Act 2009: see paragraph GEN.1.1 of Appendix FM.[7]The requirements under Appendix FM include those determining whether a person is eligible and suitable to be granted entry clearance to come to the United Kingdom. In the present case, Mr Spence met the requirements for eligibility. The issue concerns suitability.[8]The section of Appendix FM dealing with suitability was, at the material time, included in section S-EC (which stands for suitability - entry clearance). The provisions have now changed. Paragraph S-EC.1.1. provided that an applicant “will be refused entry clearance if any of paragraphs S-EC1.2 to 1.9 apply.” Paragraph S-EC.1.4 provided that the exclusion of an applicant was conducive to the public good where he had been convicted of an offence for which he was sentenced to a particular period of imprisonment. In particular, paragraph S-EC.1.4(b) provided for exclusion from the United Kingdom if a person had been convicted of an offence for which they had been sentenced to at least 12 months’ imprisonment but less than four years “unless a period of 10 years has passed since the end of the sentence”. That did not apply in Mr Spence’s case because, although he had been sentenced to three years’ imprisonment for an offence, more than 10 years had passed since the end of the sentence.[9]The material provision at the relevant time in Mr Spence’s case was paragraph S-EC.1.5 which provided that:
“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 above), character, associations, or other reasons make it undesirable to grant them entry clearance.”

Appeals to the First-tier Tribunal

[10]Section 82(1)(b) of the 2002 Act provides, amongst other things, that a person may appeal to the First-tier Tribunal where “the Secretary of State has decided to refuse a human rights claim” made by that person. Section 84(2)(2) sets out the grounds of appeal and provides that:
“(2) An appeal under section 82(1)(b) (refusal of a human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.”
[11]Section 6 of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Those are the rights defined in section 1 of the 1998 Act. And are set out in Schedule 1 to that Act. They include Article 8 of the Convention which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[12]Part 5A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Rules breaches a person’s right to respect for private and family life, and as a result, would be unlawful under section 6 of the 1998 Act: see section 117A of the 2002 Act.

THE FACTUAL BACKGROUND

[13]The material facts, which are taken from the First-tier Tribunal judgment and the material before us, are as follows. Mr Spence is a national of Jamaica born in 1982. He formed a relationship with a fifteen-year old child who was a British national when she was on holiday in Jamaica in 2006. Mr Spence subsequently committed a sexual offence against a child in the United States in 2008 when he was aged 25 years old. He was sentenced to three years’ imprisonment and deported to Jamaica after spending 18 months of that sentence in prison.[14]Mr Spence then married the British national with whom he had started a relationship in 2006. They have a child born in 2015. His wife and child have always lived in the United Kingdom. Mr Spence has never lived in the United Kingdom but lives in Jamaica. It appears that he and his wife and child have met on holidays (outside the United Kingdom) and they maintain telephone contact.[15]Applications were made for entry clearance by Mr Spence to enable him to come to the United Kingdom but these were refused. He applied again in April 2023. He was interviewed. He was asked if he had any involvement with the police and said he had. He was asked what the involvement was and answered:
“It was in America actually we went to a club when I was working, and I started partying with a female and she was underage. So that is how I got involved.”
[16]In response to another question he said he had served time for the crime saying that was “for lewd and lascivious behaviour. I did 18 months”. Asked for further details he said:
“It happened in November 2008; it is in my deep remorse for my action that day. I have tried for the last 16 years to make amends for that. I can’t take it back, but I have learned from it. It was just one night in a bar. I should have just asked questions instead of partying. That is my only run in with the law.”
[17]In fact, the evidence given by his wife at the hearing before the First-tier Tribunal was that the offence involved sexual intercourse with a child. His counsel, in submissions to that tribunal, said that it was oral sex with a child.[18]By letter dated 1 September 2023, an entry clearance officer refused his application for entry clearance and the “human rights claim” included in that application. The reasons said, so far as material to this appeal, that Mr Spence had been convicted of a criminal offence overseas and sentenced to three years’ imprisonment. Entry clearance was refused as “in light of your character/conduct/associations I consider it undesirable to issue you an entry clearance.” The Application was refused under S-EC.1.5. The entry clearance officer then went on to consider whether there were exceptional circumstances which would render refusal a breach of Article 8 of the Convention and concluded that there were not.

The appeal and the judgment of the First-tier Tribunal

[19]Mr Spence appealed against the decision to refuse his human rights claim. The sole issue for the First-tier Tribunal to determine was whether the refusal of entry clearance was compatible with his right to respect for his family life guaranteed by Article 8 of the Convention. The issue of how the First-tier Tribunal approached that question is not a ground of appeal and was not the subject of argument before this Court (although both parties accepted that some, at least, of the observations of the First-tier Tribunal were incorrect). In those circumstances, it is not necessary to consider that matter in this judgment. The sole issue on this appeal is the basis upon which the First-tier Tribunal allowed the human rights appeal.[20]At paragraph 3, describing the background, the First-tier Tribunal said this:
“3. The facts of the case are set out in the papers before the Tribunal. By way of a brief summary, the Appellant is a 41-year-old child sexual offender from Jamaica. He is married to Emmi-Ricci Ward-Spence (‘ERWS’). They commenced a relationship in 2006 when ERWS was a child and the Appellant was an adult. They later married and they now have a child who lives in the United Kingdom with ERWS. In 2008 the Appellant committed a sexual offence against a child in the United States of America. He was sentenced to a period of imprisonment of 3 years and was deported to Jamaica after serving the custodial part of his sentence.”
[21]The First-tier Tribunal had witness statements from Mr Spence, his wife and his mother-in-law and heard oral evidence from his wife. We were told that Mr Spence had wanted to give oral evidence and was prepared to be cross-examined but, due to a misunderstanding, Mr Spence thought he was not permitted to give evidence from Jamaica.[22]The critical part of the First-tier Tribunal’s reasoning is at paragraphs 13 to 15 which it is necessary to set out in full. Those paragraphs say: “13. I have considered the likelihood of the Appellant committing further offences in the UK. I was initially concerned about the Appellant’s sexual attraction to children and the risk that this might pose to children in the United Kingdom if he is allowed to come to this country. The Appellant was convicted of a sexual offence against a child under the age of 16 in 2008 when he was then 25 years of age. This was 2 years after he commenced his relationship with ERWS when she was a 15-year-old girl on a family holiday with her parents. He was a 23-year-old man at the time. Plainly, this Appellant has been sexually attracted to children and has pursued relationships with children in the past.14. Although it was argued on his behalf that the Appellant is a reformed character, and no longer a risk to children, he has at various times sought to downplay the significance of his sexual offending against a child. At one stage he told the Respondent that no sex was involved in his offending (Stitched Bundle, page 40). During his interview with the Entry Clearance Officer, he told the Respondent that his conviction arose from him attending a party with a child (Stitched Bundle, Page 575). At the hearing, ERWS’s evidence was that the Appellant had sexual intercourse with his victim. The Appellant’s counsel said in his submissions that ERWS was mistaken in her belief that the Appellant had sexual intercourse with his victim and that the Appellant’s offending involved oral sex with a child, rather than penetrative sex. Either alternative is more severe than the scenario presented to the Entry Clearance Officer at any time prior to the hearing before me. The Appellant’s attempts to downplay his sexual involvement with children and his lack of candour about the nature of his offending in my view raise doubts over whether he has truly addressed his sexual attraction to children.15. There are however also other factors to be taken into account. There is no evidential basis to conclude that the Appellant continues to pursue sexual relationships with children. The fact is that the single offence for which the appellant has been convicted took place over 12 years ago, and that there have been no subsequent convictions or offences of a similar type. This leads me to conclude that the risk of the appellant re offending in a similar manner is negligible. Ms Poshai did not directly submit otherwise. There is substantial evidence that the Appellant has appropriate, adult relationships, and has done for some time. The Appellant is now 41-years old. The Respondent specifically accepts that the Appellant is in a genuine and subsisting relationship with ERWS, who is now 34-years-old. That the Appellant is in a genuine and subsisting relationship with an adult suggests that he is now primarily sexually attracted to adults rather than children. There is no suggestion that the Appellant’s relationship with his daughter is anything other than an appropriate parental relationship”.[23]The conclusion at paragraph 17 is in the following terms:
“17. Looking at the Appellant's circumstances as a whole and having taken full account of all the matters identified above including the Appellant's criminal behaviour and his history of pursuing sexual relationships with children, I conclude that it would not be conducive to the public good to exclude him from the UK. I find that his conduct (including the conviction which does not fall within S-EC.1.4.) character and associations do not make it undesirable to grant him entry clearance. I therefore conclude that the appellant…does not fall foul of the Suitability requirements of Appendix FM of the Immigration Rules, it not being asserted that he falls foul of any requirements set out in S-EC.1.1 to S-EC.3.2., save for S-EC.1.5, which I have rejected.”
[24]The First-tier Tribunal then went on to note that the entry clearance officer’s decision interfered with the appellant’s right to respect for his family life under Article 8 of the Convention and, in particular, the opportunity for him to undertake full marital relations with his wife. The First-tier Tribunal, therefore, allowed the human rights appeal.

The appeal to the Upper Tribunal

[25]The Secretary of State appealed to the Upper Tribunal. The material ground of appeal for present purposes was that the reasoning that the conviction was not sufficient to justify exclusion under S-EC.1.5 was “at odds with” the First-tier Tribunal’s findings at paragraph 13 that Mr Spence has been sexually attracted to children and had pursued relationships with children in the past and paragraph 14 where the First-tier Tribunal referred to its doubts about whether Mr Spence had truly addressed his sexual attraction to children. The ground of appeal continued by stating that the First-tier Tribunal had failed to provide any reasoning on that point.[26]The Upper Tribunal rejected that argument, noting that the First-tier Tribunal judgment had to be considered as a whole, including by reference to paragraph 15 which assessed the risk of re-offending in a similar manner as negligible. It dismissed the appeal.

THE APPEAL

[27]The Secretary of State appeals with leave to this Court. The only ground that is necessary to consider is ground 4, that the Upper Tribunal erred in failing to find that the decision of the First-tier Tribunal was perverse and that it had failed to provide adequate reasons.

Submissions

[28]Mr Malik KC, for the Secretary of State, submitted that the findings of the First-tier Tribunal were that Mr Spence had been sexually attracted to children in the past, that there were doubts as to whether he had truly addressed his sexual attraction, and that he is now “primarily” sexually attracted to adults – indicating that sexual attraction to children still existed. Given the First-tier Tribunal’s findings, its conclusion at paragraph 17 that exclusion would not be conducive to the public good was perverse, or inadequate reasons were given for its conclusion.[29]Mr Jafferji, with Mr Boachwalla, for Mr Spence, submitted that it was well-established that this Court ought to approach appeals from expert tribunals, such as the First-tier Tribunal and the Upper Tribunal, with an appropriate degree of caution, and that their decisions should be respected unless it is clear that they had misdirected themselves in law. Appellate courts should not rush to find such a misdirection simply because they might have reached a different conclusion on the facts. He relied, in particular, on the decisions of the Supreme Court in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 676, especially at paragraphs 19, 30, and 43, and MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; especially at paragraphs 43 to 46.[30]Mr Jafferji submitted that the First-tier Tribunal had carefully considered all the relevant factors and reached a conclusion based on those factors. As the Upper Tribunal rightly accepted, it could not allow the appeal simply because it disagreed with the First-tier Tribunal’s decision. Further, Mr Jafferji submitted that perversity was not a ground of appeal to the Upper Tribunal and this Court should not allow the Secretary of State to advance that as a ground of appeal now.

Discussion

[31]The sole issue for the First-tier Tribunal was whether the refusal of entry clearance was compatible with Article 8 of the Convention. Enforcement of immigration control is a legitimate aim which may justify an interference with the right to respect for family and private life guaranteed by Article 8(1) unless outweighed by other considerations. A person’s conduct, character and associations may render his presence in the United Kingdom undesirable as appears from the Immigration Rules themselves. Refusal of entry clearance to allow a person to come to the United Kingdom will, in such circumstances, be in the public interest. Absent any other circumstances outweighing that public interest, refusal of entry clearance will be compatible with Article 8 of the Convention. It will serve a legitimate aim and will be proportionate. That is accepted in the present case. That is why the First-tier Tribunal considered Mr Spence’s conduct and character.[32]The findings of the First-tier Tribunal on that issue were as follows. First, Mr Spence had been sexually attracted to children in the past and had pursued relationships with children. That followed from the fact that he formed a relationship with a child (now his wife) and had a conviction for a serious sexual offence against a child. That is the finding in paragraph 13 of its judgment. Secondly, so far as the present is concerned, Mr Spence continues to have at least a degree of sexual attraction to, or interest in, children. That appears from paragraph 14 where the First-tier Tribunal doubted that Mr Spence had truly addressed his sexual attraction to children. It is apparent from paragraph 15 where the First-tier Tribunal found that Mr Spence is “now primarily sexually attracted to adults”. The fact that he is primarily attracted to adults must mean that the First-tier Tribunal considered that he has, at least, a residual or secondary sexual attraction to children. That is the logical conclusion from paragraphs 14 and 15 of the First-tier Tribunal’s decision.[33]The First-tier Tribunal, therefore, considered that Mr Spence is a person whose character and conduct is such that he has had, and continues to have, a sexual attraction to children. In those circumstances, the First-tier’s conclusion that excluding him from the United Kingdom was not conducive to the public good and so it was not undesirable to exclude him from the United Kingdom – in other words, the conclusion that there is no public interest in refusing entry clearance – is frankly perverse. The conclusion runs counter to and contradicts the very assessment made by the First-tier Tribunal. Given the assessment that Mr Spence has a past and current sexual attraction to children, it is difficult to see on what basis the First-tier Tribunal could conclude that there was no public interest in refusing entry clearance. An alternative way of considering matters is that the First-tier Tribunal provides no, or no adequate, reason as to why, having found that Mr Spence is a person who has been and continues to be sexually attracted to children, his conduct and character do not render it conducive to the public good for him to be refused entry clearance.[34]I do not consider that that conclusion is contrary to the observations in AH (Sudan) and the Supreme Court in MA (Somalia). This is not a case where an inference is being made that the First-tier Tribunal must have misdirected itself on the law because of a disagreement with its assessment of the facts. Rather, given the findings and the assessment made by the First-tier Tribunal itself, its reasoning is self-contradictory and therefore perverse.[35]I have also considered whether the allegation of perversity was a matter raised on the appeal to the Upper Tribunal and, if not, whether it would be appropriate for this Court to grant permission to raise a new ground on appeal. Parties to an appeal in the First-tier Tribunal are expected to identify the relevant issues that that tribunal must determine: see the recent decision in Secretary of State for the Home Department v OSB [2026] EWCA Civ 647 which reviewed earlier case law. This case, however, is not one concerning the adequacy of the identification of the issues in the First-tier Tribunal. Rather it concerns the logic of the reasons that the First-Tribunal gave for the conclusion it reached. In such circumstances, the grounds of appeal to the Upper Tribunal should be clear and specific. Similarly, the grounds of appeal to this Court ought to be “concise and specific” (see OSB at paragraph 24).[36]This Court does, however, have a discretion to allow a new point of law, that is, one that was not raised in the Upper Tribunal, to be raised on an appeal to this Court. The Court will be cautious about permitting that and will not generally do so if dealing with the issue would require new evidence, or if the trial below would have been conducted differently if the issue had been raised there, or if the other party has not had time to deal with the issue or has acted to his detriment on the faith of the earlier omission: see Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829; [2025] 1 WLR 4368 at paragraph 65 and OSB at paragraph 28, both relying on the approach taken in the earlier case of Singh v Dass [2019] EWCA Civ 360 especially at paragraphs 15 to 18.[37]The grounds of appeal to the Upper Tribunal could have been more clearly expressed. The first ground of appeal did not expressly say that the reasoning of the First-tier Tribunal was being challenged on the ground that it was perverse. However, reading the ground of appeal fairly, that was in substance the basis of that ground. It said, in essence, that the conclusion of the First-tier Tribunal was “at odds” with its findings in paragraphs 13 and 14 of its reasons. That is, in essence, alleging that there was perversity, or illogicality, in the conclusion of the First-tier Tribunal. That appears to be how the Upper Tribunal understood the ground of appeal. In the circumstances, therefore, I do not consider that ground 4 of the grounds of appeal to this Court, alleging perversity, was raising a new ground. In any event, if it had been necessary to do so, I would have granted permission to the Secretary of State to raise this ground. The point involves an analysis of the logic of the First-tier Tribunal’s own reasoning. It would not require any new evidence and obviously does not affect the way in which the proceedings before the First-tier Tribunal were conducted. Nor is there any unfairness or other reason why the issue should not be ventilated now.

CONCLUSION

[38]I would allow this appeal on the ground that the conclusion of the First-tier Tribunal, given the assessment that it made of the facts that it found, was perverse. It is not necessary to consider the other grounds of appeal. The First-tier Tribunal did not make findings of fact on other relevant issues. The matter will, therefore, have to be remitted to the First-tier Tribunal for it to determine whether the public interest in excluding Mr Spence from the United Kingdom on the basis of his conduct and his character, namely his past and current sexual attraction to children, is outweighed by the existence of other circumstances which render refusal of entry clearance a disproportionate and unjustified interference with the right to respect for family life guaranteed under Article 8 of the Convention. LADY JUSTICE ELISABETH LAING[39]I agree with the judgment of Lewis LJ and would allow this appeal for the reasons which he has given.[40]In this case the Secretary of State encouraged the First-tier Tribunal (‘the F-tT’) to decide for itself whether or not it was conducive to the public good to refuse entry to Mr Spence. Mr Malik told us that this is the way in which the Secretary of State and the F-tT have been approaching these cases for 20 years. He acknowledged that there is no authority which supports this approach. The consequence of that approach is that, the F-tT having decided that it was not conducive to the public good to refuse entry to Mr Spence, his appeal succeeded. The F-tT’s analysis of the nature of his article 8 rights was minimal, because, on this approach, the issue of conduciveness is decisive of an appeal.[41]Whether that was correct was not an issue on this appeal, and we heard no argument about it. I acknowledge that that issue raises complicated questions.[42]I must make it clear, nevertheless, that my agreement with the judgment of Lewis LJ is not a tacit endorsement of the approach of the F-tT. The F-tT’s only power on an appeal against the refusal of a human rights claim is to decide whether decision to refuse the human rights claim which is the subject of the appeal is unlawful under section 6 of the 1998 Act. That decision, in brief, in an article 8 case, requires the F-tT to decide, first, on the nature and quality of the appellant’s article 8 rights, second, whether the decision interferes with those rights, and, if so, to balance the public interest at issue (usually the public interest in firm immigration control) against those rights in order to decide whether or not that interference is proportionate.[43]My provisional view (without the benefit of argument) is that the primary assessment whether a grant of entry clearance is conducive to the public good is, in constitutional terms, for the Secretary of State. On a human rights appeal the F-tT’s function is different from that of the Secretary of State when the Secretary of State makes a decision to refuse a human rights claim. To suggest that the F-tT can, or should, step into the shoes of the Secretary of State, and make such an assessment as a proxy for the task which, in section 84(2) of the 2002 Act, Parliament has entrusted to it, is (again in my provisional view, and without the benefit of argument), wrong in principle. LORD JUSTICE SINGH[44]I agree with the judgment of Lewis LJ. I would prefer not to express a view, even a provisional one, on the issue which has been raised in the judgment of Elisabeth Laing LJ, since it is potentially one of wider importance and was not the subject of any argument before this Court, since it does not feature in any of the grounds of appeal and the parties were not in dispute about it.

Cited in 1 later judgment