Muhammad Latif v Entry Clearance Officer

An applicant who remains subject to a deportation order must first obtain its revocation before applying for entry clearance. Immigration Rules (HC 395) paragraph 320(2) then requires refusal of an entry-clearance application while the order remains in force.

A statement under section 120 of the Nationality, Immigration and Asylum Act 2002 may expand grounds challenging the decision appealed against. It cannot make a fresh revocation application to the Tribunal. In an entry-clearance appeal, the statutory restriction to circumstances existing at the date of decision prevents later revocation representations from curing that defect.

Article 8 will not ordinarily justify bypassing this clear two-stage procedure where the applicant has an available remedy under the Rules.

The appellant, a Pakistani national, had been made subject to a deportation order after overstaying. He later left the United Kingdom voluntarily and applied from Pakistan for entry clearance as a fiancé. The Entry Clearance Officer refused the application under paragraph 320(2) of Immigration Rules (HC 395), as well as under paragraph 320(11), and raised paragraph 281(iii).

An Immigration Judge dismissed the appeal. The appellant contended that his entry-clearance application, or alternatively his appeal grounds, should have been treated as an application to revoke the deportation order. He also challenged the treatment of paragraph 320(11), Article 8, the children’s interests, and a late European Union citizenship argument.

The central issue was whether revocation could be raised through the entry-clearance appeal rather than by a prior application for revocation.

1. Appeal dismissed. The appellant remained subject to a deportation order when he applied for entry clearance. Paragraph 320(2) of Immigration Rules (HC 395) therefore required refusal. The Entry Clearance Officer made the only decision open on the application before him.

2. The Rules establish a two-stage procedure. Under paragraphs 390 to 392, revocation requires an application and supporting representations, followed only if successful by an application for admission. The procedure enables the decision-maker to consider the grounds for deportation, the applicant’s representations, immigration control and compassionate circumstances before any entry-clearance application. An entry-clearance application does not contain an implied revocation application merely because revocation is necessary for the application to succeed.

3. Section 120 of the Nationality, Immigration and Asylum Act 2002 obliged the Tribunal to consider matters raised only insofar as they supplied a ground of appeal against the decision under challenge. Following AS (Afghanistan) [2009] EWCA Civ 1076, it did not permit the appellant to make an entirely new application to the Tribunal. The restriction in section 85A, applicable to entry-clearance appeals, also confined consideration to circumstances existing at the decision date.

4. The Immigration Judge erred by insufficiently considering the required care under paragraph 320(11), and by making no finding on paragraph 281(iii). Those errors were immaterial because paragraph 320(2) independently required refusal.

5. The Article 8 decision was set aside and remade. Family life existed and refusal interfered with it, but the interference was lawful and pursued immigration control. Although there were factors favouring the appellant, he had a clear available route: apply for revocation and then apply as a fiancé. It would be very difficult for Article 8 to justify circumventing that route. The European Union citizenship submission also failed because the children were not deprived of the genuine enjoyment of rights of citizenship.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal. It set aside and remade the Immigration Judge’s Article 8 decision, again dismissing the appeal.
• First-tier Tribunal: Immigration Judge Broe dismissed the appeal against refusal of entry clearance following a hearing on 9 August 2011.