Muhandiramge (section S-LTR.1.7)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 03 November 2015 |
| Neutral Citation | [2015] UKUT 675 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 03 November 2015 |
[2015] UKUT 675 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Upper Tribunal Judge Bruce
For the Appellant: Mr S M Khan, of SMK Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Office
Muhandiramge (section S-LTR.1.7)
Where an application for leave to remain in the United Kingdom is refused under Section S-LTR.1.7 of Appendix FM of the Immigration Rules on the ground of the Applicant's failure without reasonable excuse to comply with a requirement to provide information, the burden of establishing a reasonable excuse rests on the applicant and the standard of proof is the balance of probabilities.
This appeal originates in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”), dated 12 September 2014, whereby the application of the Appellant, a national of Sri Lanka, aged 26 years, for variation of his leave to remain as the spouse of a person present and settled in the United Kingdom was refused. Simultaneously, a decision was made to remove him by directions under section 47 of the Immigration, Asylum and Nationality Act 2006. The ensuing appeal to the First-tier Tribunal (the “ FtT”) was dismissed. In a considered grant of permission to appeal, a single arguable error of law has been identified, in the following terms:
“ …. The Judge found that there was no requirement for dishonesty in respect of a refusal under S-LTR.1.7 ….
The Judge concluded that, once the Respondent had provided a Memorandum of Conviction and a copy of the completed application form, including the tick box relating to convictions, the burden rested on the Appellant to demonstrate that he had a ‘reasonable excuse’. It is arguable that the burden of showing an absence of any reasonable excuse still rests on the Respondent.”
Permission to appeal was granted accordingly.
The subject matter of Appendix FM of the Immigration Rules (“ the Rules”) is “Family Members”. This embraces a regime characterised by its detailed prescription. Within this regime it is possible for varying types of family member to secure leave to remain, under differing guises, in the United Kingdom. One dedicated compartment of the Appendix, Section R-LTRP, is devoted to the discrete subject of “Eligibility for Indefinite Leave to Remain as a Partner”. This provides, inter alia, that all of the requirements in Section E-LTRP must be satisfied. It further provides that the applicant must not fall for refusal under the “Suitability – Leave to Remain” provisions arranged in Section S-LTR, paragraph 1.1 whereof provides that the applicant “ will be refused limited leave to remain on grounds of suitability” if any of paragraphs 1.2 – 1.7 applies. Within paragraph 1.7 there is a specific requirement, in subparagraph (b), that –
“ The applicant has failed without reasonable excuse to comply with a requirement to —…..
(b) provide … information”.
The words “will be refused” in paragraph S-LTR1.1 attract attention. Their clear import is that of mandatory refusal. This provision is to be contrasted with paragraph S-LTR.2.1, which provides:
“ The applicant will normally be refused on grounds of suitability if any of paragraphs S-LTR.2.2 to 2.4 apply.”
[Emphasis added.]
Within paragraphs 2.2 – 2.4 a series of defaults is postulated: the provision of false information, representations or documents; non-disclosure of material facts; a failure to pay relevant NHS charges; and the non-provision of a requested maintenance and accommodation undertaking. Strikingly, where any of these situations obtains, the refusal of an application for limited leave to remain as a partner is discretionary. The contrast with paragraph 1.7 is unmistakeable.
The material facts are few and uncontroversial. The Appellant entered the United Kingdom lawfully as a Tier 4 (General) Student in January 2011. His presence in the United Kingdom has been consistently lawful. His sponsor, the British citizen with whom he wishes to settle, is described as a person who is Malaysian by birth, aged 43 years, with two children aged 11 and 15 years respectively. She has been settled in the United Kingdom since July 2008. The relationship between the Appellant and the sponsor dates from September 2013 and they were married on 16 June 2014. Section 10 of the application form, under the rubric of “Personal History”, states:
“ It is mandatory to complete section 10 ….
This section asks about any criminal convictions ….
If you fail to answer all of these questions as fully and accurately as possible, your application may be refused.”
This is followed by, inter alia, the question:
“ Have you or any dependants who are applying with you been convicted of any criminal offence in the UK or any other country?”
In response, the Appellant ticked the “No” box. The application is signed by the Appellant and is dated 30 July 2014.
In the Secretary of State's decision, the following is stated:
“ On 02 January 2013 you were convicted of two counts of fraud at North Staffordshire Magistrates' Court. On section 10.1 of the application form you stated that you had no convictions. Your application falls for refusal by virtue of paragraph S-LTR.1.7 of Appendix FM ….. [and] is refused under D-LTRP1.3.”
This is the only reason proffered for refusing the application. The decision maker also considered the Appellant's case under the private life rubric of paragraph 276 ADE of the Immigration Rules, concluding that it was non-compliant with the applicable requirements.
There were two grounds of appeal to the First-Tier Tribunal (the “ FtT”), which were:
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(a) that the Appellant did not intentionally conceal his convictions; and
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(b) that the impugned decision was in breach of Article 8 ECHR
Both were rejected by the FtT. The main issue for the FtT was whether the Appellant's admitted failure to disclose his conviction in the application form could be forgiven by the “ reasonable excuse” dispensation in the Rules. The explanation proffered by the Appellant was that he had formed an understanding that the outcome of the criminal proceedings against him was a compromise at the Magistrates' Court, involving the repayment of the sum in question (some £400), together with court costs of £175, whereby, per his statement –
“ I was led to believe that so long as the sum in question was settled in full, there was no further liability … I believed that the above did not fall within the definition of a conviction. The omission was therefore an honest mistake on my part as it was never my intention to be deceitful or deceptive [sic].”
In a nutshell, the FtT found this explanation wholly unconvincing and rejected it for the reasons given.
The issue of law upon which the grant of permission to appeal is focused emerges from the following passages in the decision of the FtT:
“ In the present case, it is not for the Respondent to prove that anything was done dishonestly or with an intention to deceive. Insofar as there is any burden upon the Respondent, I find that it has been sufficiently discharged …. [by producing] …. a copy of the completed FLR(M) application form ….. and, secondly, a copy of the Appellant's Memorandum of Conviction ….”
The FtT considered that there was a burden upon the Appellant, expressed in the following terms:
“ …. The Appellant in this appeal must be understood to be contending that he has a reasonable excuse for his undisputed failure to comply with the requirement to provide information. Such being his case, I apprehend that the burden rests upon him to establish the necessary facts upon the balance of probabilities.”
At the conclusion of the Judge's consideration of, and reasoned rejection of, the Appellant's explanation for his aberration, the Judge stated:
“ … It is my conclusion that the Appellant has failed to discharge the burden of showing on the balance of probabilities that he has a reasonable excuse.”
It has been frequently observed, at all levels, that the world of immigration and asylum law is complex, challenging and populated by a seemingly ever increasing number of legal rules, both domestic and international. I apprehend that few would quibble with this analysis. The complexities and potential for error have been increased by the intermittent emergence of burdens and standards of proof during recent years. This may be linked to another question, which to my mind is not yet finally settled, relating to the essential character of immigration and asylum appeals, resorting to the conventional taxonomy, are these adversarial? Or inquisitorial? Or a combination of both? Or of some other species? Furthermore, in considering all of these questions, what is the influence of the public law overlay in this sphere? I consider that when questions of burden and standard of proof arise in immigration and asylum appeals they cannot be isolated from this broader context.
Burdens and standard of proof have progressively, and almost with stealth, become an established feature of decision making in the field of immigration and asylum law. Their emergence may properly be described as organic. They have featured particularly in cases where it is alleged by the Secretary of State that the applicant has engaged in deception or dishonesty with the result that the application in question should be refused. This discrete line of authority is not recent, being traceable to the decision of the Immigration Appeal Tribunal in Olufosoye [1992] IMM AR 141. In tribunal jurisprudence, the origins of this particular...
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