The Entry Clearance Officer, Lagos v Irikwefe Chapson Ukus

Where an immigration decision-maker has recognised and exercised a discretion under the Immigration Rules, the decision is lawful even if the Tribunal would have weighed the relevant factors differently. If the discretion is appealable, Nationality, Immigration and Asylum Act 2002 section 86(3)(b) permits the Tribunal to substitute its own exercise of that discretion.

Conversely, where the decision-maker has failed to exercise the discretion lawfully, the decision is not in accordance with the law. The application remains outstanding and the proper course is to require a fresh lawful decision. The Tribunal must therefore distinguish failure to exercise a discretion from a lawful exercise capable of being reconsidered on appeal.

The Entry Clearance Officer refused Mr Ukus entry clearance as a spouse under paragraph 320(18) of the Immigration Rules, having considered his criminal offending and whether there were sufficiently compelling compassionate circumstances.

Immigration Judge Nicholls, in a determination promulgated on 18 May 2011, allowed the appeal. The judge considered that strong compassionate circumstances justified exercising the discretion differently. The Entry Clearance Officer appealed, contending that the matter should instead have been returned for reconsideration because the original discretionary decision was unlawful.

The central issue was whether the Entry Clearance Officer had failed to exercise the discretion, or had lawfully exercised it so that the Tribunal could itself reach a different discretionary decision.

1. The appeal was dismissed. The Entry Clearance Officer had made a lawful discretionary decision under paragraph 320(18) of the Immigration Rules. The Immigration Judge was therefore entitled to decide, under section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002, that the discretion should have been exercised differently.

2. A decision-maker has lawfully exercised a discretion where the decision shows that he identified the applicable rule, understood that it conferred a discretion, considered the material factors, and reached a conclusion by balancing them. The Tribunal does not treat such a decision as unlawful merely because it would assess the merits differently. Here, the Entry Clearance Officer had considered the appellant’s offending, compassionate circumstances and other material matters, and had concluded that they were insufficiently compelling.

3. Where a decision-maker has failed to exercise a discretion lawfully, the decision is instead not in accordance with the law under section 86(3)(a). The Tribunal should require the decision-maker to complete the outstanding task by making a lawful decision, consistently with SSHD v Abdi [1996] Imm AR 148. That remedy is distinct from reviewing and replacing a lawful exercise of an appealable discretion.

4. The Tribunal explained that PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) concerned a failure to address the correct discretionary question and was therefore compatible with section 86(3)(b). It did not require remittal where a lawful discretionary decision had already been made.

5. The case fell within the category in which the decision-maker lawfully exercised an appealable discretion and the Tribunal exercised that discretion differently. The requirements of paragraph 281 were also met, supporting the direction that entry clearance be granted.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer’s appeal was dismissed in [2012] UKUT 307 (IAC). The Tribunal upheld the Immigration Judge’s power to exercise the appealable discretion differently.
• First-tier Tribunal: Immigration Judge Nicholls allowed Mr Ukus’s appeal against refusal of entry clearance in a determination promulgated on 18 May 2011.