Upper Tribunal (Immigration and asylum chamber), 2018-02-15, HU/23129/2016
| Jurisdiction | UK Non-devolved |
| Date | 15 February 2018 |
| Published date | 05 March 2018 |
| Hearing Date | 31 January 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/23129/2016 |
Appeal Number: HU/23129/2016
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Upper Tribunal
(Immigration and Asylum Chamber) |
Appeal
number: HU/23129/2016
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the immigration Acts |
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Heard at: Field House |
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Decision and Reasons promulgated |
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ON 31 JANUARY 2018 |
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ON 15 february 2018 |
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Before
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Upper Tribunal Judge Gill
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Between
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Entry Clearance Officer, UKVS Sheffield |
Appellant | ||||
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And
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PA Saikou Bojang (Anonymity Order Not Made)
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Respondent | ||||
Representation:
For the appellant: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer.
For the respondent: Mr Y Y Darboe of Queen’s Park Solicitors.
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The Entry Clearance Officer (hereafter the “ECO") has been granted permission to appeal the decision of Judge of the First-tier Tribunal Kimnell who, in a decision promulgated on 6 October 2017 following a hearing on 26 September 2017, allowed the appeal of Mr Pa Saikou Bojang (hereafter the “claimant”), a national of the Gambia born on 17 November 1982, against a decision of the respondent of 14 September 2016 to refuse his application of 13 June 2016 for entry clearance as the husband of Mrs. Kemi Liza Bojang (hereafter the “sponsor”) under Appendix FM of the Immigration Rules. The sponsor is a British citizen.
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The ECO refused the application under paragraph 320(11) of the Rules and S-EC.1.4.(c) of Appendix FM because the claimant was apprehended previously when he arrived at Luton Airport on 25th May 2015 travelling on a Belgian passport (in the identity of a person with a date of birth of 17 November 1983) which had been deliberately altered to make it appear as if it belonged to him. He was carrying a Swedish bank card in another name. He claimed asylum, saying that he feared returning to the Gambia or Denmark. He withdrew his asylum claim two hours later. He was removed on the same day to Denmark where he was convicted of a criminal offence and sentenced to 40 days’ imprisonment.
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In relation to the refusal under paragraph 320(11), the ECO considered that the claimant had attempted to frustrate the intentions of the Immigration Rules in view of the fact that, on 25 May 2015, he had carried a fraudulently altered passport, used different identities with no satisfactory explanation and made a frivolous application to remain in the United Kingdom.
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In relation to the refusal under S-EC.1.4.(c) of Appendix FM, the ECO considered that the claimant did not meet the suitability requirements on account of the fact that he had a criminal conviction for which he was sentenced to 40 days’ imprisonment. The ECO accepted that the remaining requirements for entry clearance as a partner were satisfied.
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Paragraph S-EC.1.4.(c) provides that an applicant will be refused entry clearance on the grounds of suitability where exclusion is conducive to the public good because he has been convicted of an offence for which he has been sentenced to a period of imprisonment of less than twelve months, unless a five year period has passed since the end of the sentence. Where that paragraph applies, unless refusal would be contrary to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 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.
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Accordingly, as the judge noted (at para 23 of his decision), the appellant in this case could make another application without being caught by the suitability requirement, provided he waits a further three to four years before making a renewed application.
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The ECO also considered the application outside the Immigration Rules under Article 8 of the ECHR. The ECO considered that the decision was proportionate, noting, in particular, that no reason had been advanced as to why the sponsor was unable to enjoy family life with the claimant in the Gambia.
The judge's decision
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In summary, the judge found that, although “highly borderline”, it was just about possible to say that the sponsor cannot reasonably be expected to join the claimant in the Gambia. He considered that the claimant had returned at his own expense to the Gambia and waited for 12 months before making the application for entry clearance, that he withdrew his asylum claim speedily “thus causing the UK authorities virtually no trouble, expense or inconvenience”, that the prison sentence was short and there was no other criminality, that the factors in s.117B of the Nationality, Immigration and Asylum Act 2002 as to financial independence and English language were satisfied and that the decision to maintain the refusal now and insist that the claimant wait until 5 years had elapsed would have a disproportionate impact on the sponsor, regardless of the impact on the claimant.
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The judge gave his reasons for his decision at paras 11-34 which read:
“11. The burden is on the [claimant] to establish the facts on which he relies, though in this case there is no dispute between the parties as to the facts; it is the decision to be drawn from those facts that is in dispute between the [claimant] and [ECO].
12. The accepted facts are these: the [claimant] was born on 17th November 1982 in Gambia and is married to his current wife, his sponsor, Mrs Kemi Liza Bojang whom he first met in Gambia on 25t1 October 2011.
13. The couple married in Gambia on 25th April 2014. In May of that year the [claimant] had a visit visa for Denmark for a period of three months. He travelled there on 29th June 2014 and moved to Sweden on 30th June 2014, the following day. The visa expired and the [claimant] remained living illegally. A civil marriage ceremony was conducted in Sweden on 31st January 2015. The couple could not settle in Sweden, consequently it was decided that the sponsor should return to the United Kingdom, which she did, and where she secured employment with a software company earning £26,500 per year which has since increased to an annual salary £47,000 a year.
14. The [claimant] accepted advice that he could use a fake Belgian passport to visit the United Kingdom and with that passport he travelled to Luton where he was apprehended. The [claimant] confessed to possession of a false passport and claimed asylum but after a short period of time the [claimant] acknowledged that he was happy to return it to Denmark, and he was removed the same day. He was detained on return to Denmark and sentenced to a term of imprisonment for 40 days, following which he returned to the Gambia.
15. The [claimant’s] wife advised him to return to the Gambia to make a proper application to join her in the United Kingdom. He waited, as advised, for a period of twelve months before making his application during which time he has remained in the Gambia whilst his wife has lived in the UK.
16. In his witness statement the [claimant]...
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