Visa Officer, Warsaw v Sergejs Cvetkovs

A respondent who refuses an entry-clearance application must comply with The Asylum and Immigration Tribunal (Procedural) Rules 2005 by providing the Tribunal with the application and material documents referred to in the decision. That duty enables a fair and effective appeal.

Where the respondent’s default deprives the First-tier Tribunal of that material, the respondent will ordinarily be unable to challenge a reasoned decision on the ground that the judge lacked evidence or gave insufficient reasons. The First-tier Tribunal may direct that continued non-compliance will result in the appeal being treated as unopposed. Subject to any mandatory ground of refusal, a paper appeal may then succeed.

Visa Officer, Warsaw v Sergejs Cvetkovs concerned a visit-visa refusal. The Visa Officer was not satisfied that the applicant’s circumstances in Latvia showed that he was a genuine visitor who would leave the United Kingdom at the end of the proposed visit.

The applicant appealed on the papers. The Visa Officer did not provide a respondent’s bundle, including the application form and documents which had been supplied to the decision-maker. Immigration Judge Rowlands nevertheless allowed the appeal, relying on the sponsor’s evidence and the applicant’s previous compliance with immigration requirements.

The Visa Officer appealed, alleging inadequate reasons. The central issue was whether that challenge could succeed when the Visa Officer’s own procedural default had prevented the First-tier Tribunal from considering the relevant documents.

1. The Visa Officer’s appeal was dismissed. The Upper Tribunal found no error of law in the Immigration Judge’s decision. On the material available, the judge gave adequate reasons for concluding that the applicant was a genuine visitor who met the relevant requirements.

2. Rule 13 of The Asylum and Immigration Tribunal (Procedural) Rules 2005 required the respondent to provide more than the refusal notice. It required the application form, material submitted by the applicant, and documents referred to in the decision. The failure was a clear breach which usually frustrates the effective hearing of an appeal.

3. The respondent could not complain that the Immigration Judge’s reasoning was inadequate where its own failure to provide the relevant material had prevented the judge from considering it. It was not known whether the missing college letter and other material might have supported the applicant’s ties to Latvia.

4. For future entry-clearance appeals, the First-tier Tribunal may direct that, unless the Visa Officer promptly supplies the required documents, the appeal will proceed on the basis that the respondent no longer opposes it or relies on the contentions in the refusal letter. In the absence of evidence of a mandatory ground for refusal, such a paper appeal is likely to succeed.

5. Applications by a defaulting respondent for permission to appeal on grounds of insufficient evidence or reasons should generally be refused, although mandatory grounds of refusal may require different consideration. The Visa Officer was required to reconsider the application in light of the Immigration Judge’s conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): The Visa Officer’s appeal was dismissed in [2011] UKUT 212 (IAC).
• First-tier Tribunal: Immigration Judge Rowlands allowed the applicant’s appeal against refusal of a visit visa. No citation was stated in the judgment.