Nazmum Ara v Entry Clearance Officer - Dhaka

A successful appeal against refusal of entry clearance does not itself confer entry clearance. Where no binding direction has been given, the Entry Clearance Officer must make a fresh and lawful decision under paragraph 27 of HC 395, assessed by reference to circumstances at the time of that decision.

The officer may consider material that was available but not produced at the successful appeal, as well as new material. The later tribunal must give appropriate weight to the earlier determination, but may reach a different conclusion where the evidence is materially different. Accordingly, a tribunal does not err in dismissing an appeal against a re-refusal founded on properly proved earlier deception.

The appellant, a Bangladeshi national, appealed against Immigration Judge P-J White’s dismissal of her appeal from refusal of entry clearance as a student under paragraph 320(7B)(d) of HC 395.

An earlier appeal against a 2009 refusal under paragraph 320(7B) had been allowed by Immigration Judge Morgan because the respondent had produced no evidence that the appellant had used forged documents in a 2008 application. No direction was made requiring entry clearance to be granted. When the appellant sought entry clearance following that successful appeal, the Entry Clearance Officer reconsidered the available verification material and again refused the application.

The central issue was whether the earlier successful appeal prevented the officer and the later Immigration Judge from relying on evidence that could, but had not, been placed before Immigration Judge Morgan.

1. Appeal dismissed. Immigration Judge P-J White made no error of law in dismissing the appeal against the re-refusal.

2. A successful appeal against refusal of entry clearance does not automatically entitle the appellant to entry clearance. Immigration Judge Morgan could not grant entry clearance by allowing the earlier appeal. Under section 87(2) of the Nationality, Immigration and Asylum Act 2002, his decision would bind the decision-maker only to the extent of any direction given. No such direction was made.

3. Paragraph 27 of HC 395 required the Entry Clearance Officer to determine the application in light of circumstances existing when the fresh decision was made. That statutory-rules framework differs from cases concerning leave to remain, where an unappealed adjudicator’s decision may preclude an administrative attempt to circumvent it.

4. The officer was entitled, and required, to consider all relevant material, including evidence available at the earlier appeal but not then produced. The earlier determination remained relevant, but it had been made on wholly different evidence. The later Immigration Judge could therefore give it appropriate, rather than determinative, weight.

5. The later evidence rationally established that the appellant had used deception in her 2008 application by relying on a forged bank statement and an unreliable degree certificate. The mandatory refusal provision in paragraph 320(7B)(d) consequently applied. The earlier failure to prove the allegation did not prevent the respondent from proving it in the later appeal.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld Immigration Judge P-J White’s decision of 17 January 2011.

• Immigration Judge P-J White: dismissed the appeal against the 7 July 2010 re-refusal of entry clearance under paragraph 320(7B) of HC 395.

• Immigration Judge Morgan: had allowed an earlier appeal against a 2 March 2009 refusal because the respondent produced no evidence supporting the allegation of prior deception. No direction was given under section 87(2) of the Nationality, Immigration and Asylum Act 2002.