Upper Tribunal (Immigration and asylum chamber), 2015-09-04, OA/03709/2014
| Jurisdiction | UK Non-devolved |
| Date | 04 September 2015 |
| Published date | 20 January 2016 |
| Hearing Date | 06 July 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/03709/2014 |
Appeal Number: OA/03709/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/03709/2014
THE IMMIGRATION ACTS
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Heard at: Field House |
Decision and Reasons Promulgated |
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On: 6th July 2015 |
On: 4th September 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE BRUCE
Between
Entry Clearance Officer, Bangkok
Appellant
and
NF
(Anonymity Direction Made)
Respondent
Representation:
For the Appellant: Mr Clarke, Senior Home Office Presenting Officer
For the Respondent: Ms Ahmed, Counsel
DETERMINATION AND REASONS
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The Respondent is a national of Thailand date of birth 27 April 1981. On the 23 February 2015 the First-tier Tribunal (Judge Hussain) allowed her appeal against a decision to refuse to grant her entry clearance as the spouse of a person present and settled in the United Kingdom. Her Sponsor is British national F. The Entry Clearance Officer now has permission to appeal against that decision1.
Background and Matters in Issue
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The Respondent made her application for entry clearance on the 27 November 2013. She set out the relevant information about her relationship with F, his income etc. Asked about her immigration history she stated that she had entered the United Kingdom on the 1 January 2007 and had left on the 1 January 2011.
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The Entry Clearance Officer found that the travel history given in the VAF did not tally with the records held in Bangkok: there was no record of the Respondent ever having been granted a visa.
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The Entry Clearance Officer contacted the Respondent to ask her about the discrepancy. She said that she had made arrangements with an agent called Mr J to bring her to the UK so that she could work as a masseuse. These arrangements had entailed her changing her name to J so that she could pretend to be his daughter. She obtained an Irish visa in that name and in December 2007 travelled to EIRE with this agent. She subsequently entered the UK illegally. The Notice of Refusal sets out the Entry Clearance Officer’s record of the rest of that telephone interview, and the enquiries which followed it:
“you were asked why you wanted to travel to the UK and you said to work as a ‘masseuse’. You stayed in a rented apartment with your friend ‘B’ where you posted pictures on the internet advertising your services. If customers were interested in you they contacted an ‘agency’ and you provided services in the apartment.
Records held in this office show that you first came to the attention of the police on 19 May 2010 when you were arrested and then bailed in Crawley. You were then arrested on 23 June 2011 in Glasgow along with 2 other Thai nationals at an address being investigated as a suspected brothel used for prostitution. On the 25 June 2011 you were charged with entering the UK illegally and were removed back to Thailand on 8 July 2011.”
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Further enquiries revealed that the Respondent had been working illegally as a “masseuse” in Malaysia and Hong Kong.
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The Entry Clearance Officer notes that the Appellant claims to have been living with F since 2008 but in light of her “character, conduct and associations” the ECO considered it undesirable to grant her entry clearance. Entry was therefore refused with reference to paragraph S-EC.1.5 of Appendix FM:
S-EC.1.5. 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.), character, associations, or other reasons, make it undesirable to grant them entry clearance.
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Entry was further refused with reference to paragraph 320(11) which provides that entry should “normally” be refused:
(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re- documentation process.
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The Respondent exercised her right of appeal.
The Decision of the First-tier Tribunal
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The First-tier Tribunal heard live evidence from F. He understood the reasons why his wife had been refused but considered the Entry Clearance Officer to be prejudiced: he could support her now.
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The determination deals first with the suitability criteria under Appendix FM. The First-tier Tribunal directed itself that paragraph S-EC.1.5 requires the decision maker to consider two matters. First, a finding of fact must be made about the nature of the applicant’s conduct. Secondly, consideration must be given to whether the nature of that conduct is such that it would be undesirable for the applicant to be admitted to the UK. In addressing question one, it is noted that the ECO has not provided evidence that the Respondent was working in the UK as a prostitute; nor has she admitted as much. The refusal notice strongly suggests sex-work but falls short of making such an assertion. The conduct that the Respondent has admitted to consists of illegal entry, having been arrested (but not convicted) and removed from the country. Turning to question two the determination says this:
“in my view, given that the appellant entered the United Kingdom illegally it is difficult to see what law she broke by working here. I am not aware that working as a masseuse is illegal in the United Kingdom and therefore this fact does not take the Entry Clearance Officer’s case any further. In my view, simply entering the United Kingdom illegally is not a sufficient basis to exclude a spouse from the United Kingdom because that would mean anyone who has either entered the United Kingdom illegally or has overstayed here would automatically be refused admission….for an applicant to fall within paragraph S-EC.1.5 their conduct must reach a level of seriousness before they can be considered for exclusion. Simply entering the United Kingdom illegally does not reach that threshold.” [at §21]
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In respect of paragraph 320(11) it is noted that this is not a provision that requires automatic refusal. It is a discretionary power. The First-tier Tribunal notes that the ECO has made no assessment of whether there is a genuine family life here, and in those circumstances the discretion inherent in 320(11) – “should normally be refused” – has not been properly exercised. The determination concludes that such an assessment could only be properly exercised if the ECO had taken into account the strength of the Respondent’s family life in the UK and the extent to which exclusion would interfere with, or show a lack of respect for, her relationship with F. The appeal was therefore allowed to the extent that it is ‘remitted’ to the ECO to make a decision in accordance with the law.
The Grounds of Appeal
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The ECO submits that the First-tier Tribunal erred in the following material respects:
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Irrationality: the finding that the Respondent did not break the law by working illegally is not one that a reasonable Tribunal could have reached.
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Failure to consider material facts: the reasoning does not take into account the extent of the Respondent’s breaches of immigration control, viz the fact that she used a false identity, stayed for four years and only left when forcibly removed.
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In his submissions Mr Clarke submitted that in changing her name and in assuming a false identity the Respondent committed fraud, which has been defined by parliament as a “serious crime”2. The matter of “character” did not depend on any convictions: the Respondent’s admission that she had committed these crimes revealed an innate characteristic incompatible with entry being granted to the UK.
Rule 24 Response
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For the Respondent Ms Ahmed submitted that the First-tier Tribunal...
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