SS (Nepal) v Entry Clearnace Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Lewison,Lord Justice Moore-Bick |
| Judgment Date | 25 July 2013 |
| Judgment citation (vLex) | [2013] EWCA Civ J0725-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2013 |
| Docket Number | Case No: C5/2012/2370 |
[2013] EWCA Civ J0725-1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-bick
Lord Justice Elias
and
Lord Justice Lewison
Case No: C5/2012/2370
Mr Zane Malik and Mr Nazir Ahmed (instructed by Messrs Ash Norton) appeared on behalf of the Appellant.
Mr Andrew Sharland (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
The appellant, a citizen of Nepal, was born on 31 July 1994. He is the son of a Ms Pardhan who has a residence permit as a domestic worker allowing her to live in the UK. He sought entry clearance to join his mother. The Secretary of State refused his application on the grounds that the applicant did not comply with any of the conditions in paragraphs 197(vi)(a) of the Immigration Rules. That provision deals with the circumstances where a child may join another family member in this country. In addition, she held as a distinct and separate reason for refusing the application for entry clearance that he had infringed paragraph 320(A) of the Immigration Rules. This is as follows:
"Entry clearance or leave to enter the United Kingdom is to be refused…
(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application…"
The representation is false only if it is dishonest: see the observations of this court in the case of Adedoyin v SSHD [2010] EWCA Civ 733, [2011] WLR 564.
The applicant unsuccessfully sought to appeal these findings first to the First-tier Tribunal and then to the Upper Tribunal. He then sought to appeal the Upper Tribunal's decision in relation to paragraph 320(7A) to this court. He was given permission to do so. He did not seek permission in respect of paragraph 197 however. Accordingly, even if he is successful in his appeal, the decision not to grant him entry clearance will still stand.
Mr Malik has sought to explain to us today why he wished to challenge the Upper Tribunal's finding notwithstanding that even if successful, his client cannot gain the right of entry. His first explanation was that rule 320(7B)(ii) provides that if an applicant for entry clearance is found to have sought to obtain entry by deception in his application, whether the application was successful or not, he cannot re-apply for entry for at least ten years. We agree that in principle he would be justified in appealing the Upper Tribunal's ruling on that point so as to avoid the application of that provision should he re-apply for entry. However, in fact this particular restriction did not and still does not apply to someone who was under the age of 18 when he gave the false information. That is made clear in paragraph 320( 7C)(b) which was in force at the material time. (The principle still applies but now under a different rule.)
However, today Mr Malik identified a further difficulty which justifies the court ruling on this appeal. It arises because of the terms of paragraph 320(11), which provides that entry clearance would normally be refused:
"(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules"
That paragraph goes on to say that guidance will provide examples of the circumstances in which an applicant who has previously overstayed or breached a condition, or acted in various other unacceptable ways, is likely to be considered as having contrived in a significant way to frustrate the intentions of the rules.
We were taken to the guidance. It is not necessary to deal with it any detail. It provides that paragraph 320(11) would typically apply where there have been, amongst other matters, breaches of the Immigration Rules and where there are aggravating circumstances. There is a list of aggravated circumstances which is said not to be exhaustive. They do not specifically cover the deception which allegedly arose in this case. But one paragraph of the guidance is as follows:
"Where 320(7C) applies (which makes an applicant exempt from 320(7B)) an ECO must consider whether a refusal under paragraph 320(11) is appropriate."
We heard some...
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