CB (United States of America) v Entry Clearance Officer (Los Angeles)

Under paragraph 320(19) of the Immigration Rules, exclusion must be assessed by evaluating the risk to the public, including whether the applicant’s presence could or might lead to disorder or crime. The decision-maker need not prove on the balance of probabilities that a particular future event will occur. An immigration judge must also address and give appropriate weight to the Secretary of State’s assessment of the public good. Failure to apply this approach, or to give adequate reasons for material factual conclusions, may amount to a material error of law.

A United States citizen and professional singer sought entry clearance to perform in the United Kingdom under a work permit. The application was refused under paragraph 320(19) of the Immigration Rules on public-good grounds, having regard to his character and conduct, including a Heathrow incident and previous convictions.

An Immigration Judge allowed the appeal. Senior Immigration Judge Warr upheld that decision on reconsideration. The Entry Clearance Officer appealed, raising issues concerning the assessment of future risk, the weight due to the Secretary of State’s view, and the reasoning concerning the Heathrow incident.

1. The appeal was allowed, and the matter was remitted for reconsideration to be re-opened.
2. Under paragraph 320(19) of the Immigration Rules, once relevant primary facts are established, the decision-maker must evaluate whether exclusion would conduce to the public good. The relevant question was whether there was a substantial risk that the applicant’s presence could or might lead to disorder or crime. The Immigration Judge instead required proof, on the balance of probabilities, that the applicant would in fact cause violence or disorder. That was a material error of law.
3. In this field, the original decision-maker’s assessment has particular force because the Secretary of State and Entry Clearance Officers have responsibility for wider strategic and overarching public-interest considerations. Under N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094, the appellate decision-maker must form an independent judgment but must address and give proper weight to the Secretary of State’s assessment.
4. The Immigration Judge also erred in stating that there was no evidence of the applicant’s responsibility for the Heathrow disorder. Relevant evidence existed, including witness evidence and the applicant’s admission of a public-order offence. Reasons were required if that evidence was rejected or disregarded.
5. Lord Justice Carnwath dissented, considering that any errors were immaterial. Lord Justice Richards agreed with Laws LJ that the errors were material and that the Senior Immigration Judge had erred in finding otherwise.

• Court of Appeal (Civil Division): appeal allowed; the matter was remitted for reconsideration.
• Asylum and Immigration Tribunal: Senior Immigration Judge Warr upheld Immigration Judge Bird’s decision on reconsideration.
• Immigration Judge: Immigration Judge Bird allowed the appeal against refusal of entry clearance.