PS v The Entry Clearance Officer, New Delhi

Where the automatic bar in paragraph 320(7B) of HC395 is disapplied, a refusal under paragraph 320(11) requires a careful discretionary assessment. The decision-maker must identify genuinely aggravating circumstances and consider the case as a whole. That exercise must give proper weight to the public interest in encouraging an immigration offender to leave the United Kingdom voluntarily and to seek to regularise status through entry clearance.

A refusal is not lawful where it merely recites past illegal entry and immigration offending without addressing the published guidance, the true aggravating features, and relevant family circumstances. The balancing exercise must not produce an outcome counter-productive to the coherent operation of the Immigration Rules.

The appellant had entered the United Kingdom clandestinely, claimed asylum and remained without leave. He married a British citizen and voluntarily returned to India in September 2008 to apply for entry clearance to join her.

The Entry Clearance Officer refused the application under paragraphs 320(11) and 281 of HC395. The Asylum and Immigration Tribunal found that the maintenance and accommodation requirements in paragraph 281(iv) and (v) were met, but upheld the discretionary refusal under paragraph 320(11). Collins J ordered reconsideration after concluding that there were strong grounds to find a material error of law.

The issue was whether the discretionary refusal had lawfully assessed aggravating circumstances and the relevant public and family considerations.

1. Appeal allowed. The Upper Tribunal set aside the immigration judge’s decision for material error of law, remade the decision by allowing the appeal, and remitted the entry-clearance application to the primary decision-maker.

2. Paragraph 320(7C) disapplied the automatic prohibition in paragraph 320(7B) because the application was made as a spouse under paragraph 281. In any event, paragraph 320(7B) did not apply because the appellant had left voluntarily more than 12 months before applying.

3. The Entry Clearance Officer had to decide, under paragraph 320(11) and its guidance, whether the prior breach of immigration law had sufficiently aggravating features to justify refusal. A bare reliance on clandestine entry, a failed attempt to remain indefinitely, and a speculative inference of illegal working did not demonstrate that the correct question had been addressed.

4. The officer should have recognised the significance of the appellant’s voluntary departure and his attempt to regularise his status from abroad. If circumstances that are not truly aggravating justify refusal, persons unlawfully present may be discouraged from leaving and regularising their position. That would undermine the purposes and coherent operation of the Immigration Rules.

5. The published guidance required a case-specific balancing exercise, including relevant family circumstances. The appellant’s Article 8 claim might not independently have been strong, but his family life still required careful evaluation within that exercise. The immigration judge endorsed the same unlawful approach and therefore made the same material error.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the immigration judge’s decision for error of law, and remitted the entry-clearance application to the primary decision-maker.
• High Court: Collins J ordered reconsideration on 21 January 2010, finding strong grounds for a material error of law.
• Asylum and Immigration Tribunal: On 22 July 2009, dismissed the appeal against the Entry Clearance Officer’s refusal dated 9 February 2009.