Entry Clearance Officer — United States of America v MW (United States of America) and Others
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lady Justice King,Lord Justice Irwin |
| Judgment Date | 14 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1273 |
| Docket Number | Case No: C5/2015/1304 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2016 |
[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
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lady Justice King
and
Lord Justice Irwin
Case No: C5/2015/1304
Mr John Paul Waite (instructed by Government Legal Department) for the Appellant
Ms Deborah Revill (instructed by Direct Access Scheme) for the Respondents
Hearing date: 09/11/2016
Approved Judgment
Sir Terence Etherton MR, Lady Justice King,
Introduction
This is the judgment of the Court.
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
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.
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.
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.
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."
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
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.
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)
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.
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."
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.
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.
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.
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...
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