Ivlev, R (on the application of) v Entry Clearance Officer, New York

Paragraph 320(19) of the Immigration Rules confers a wide evaluative power and discretion. The decision-maker need only form a rational view that exclusion is conducive to the public good and that refusal seems right. Outstanding foreign criminal charges may be considered where the applicant has not shown them to be baseless, even if political motivation is alleged. The decision-maker need not conduct a mini-trial or apply the higher threshold under article 1F of the Refugee Convention. Relevant considerations may include foreign relations, possible extradition or immigration proceedings, and avoidable public expenditure. An unlawful surrender of the designated decision-maker’s function may nevertheless justify refusal of relief in exceptional circumstances where no real prospect of a different outcome is shown.

The claimant, a US citizen and lawyer formerly associated with Yukos, sought Tier 1 (General) entry clearance to work in the United Kingdom. Russian criminal charges and an Interpol Red Notice were outstanding against him. The application satisfied the points requirements but was refused under paragraph 320(19) of the Immigration Rules, read with paragraph 245C.

The UKBA head office in London advised refusal, and the Entry Clearance Officer wrongly understood that advice as a direction. The Secretary of State conceded unlawful surrender of the decision-making function. The claimant also challenged the assessment of the Russian charges, the consideration of foreign relations and possible proceedings, the adequacy of reasons, and the alleged right of appeal under section 82 of the 2002 Act.

1. Merits of refusal. Paragraph 320(19), read with paragraph 245C, gives the decision-maker a wide power of evaluation and discretion. The applicable test is whether the decision-maker rationally formed the relevant opinion and judgment, without breach of public law principles. The higher threshold under article 1F of the Refugee Convention was inapposite because the claimant had no prima facie right of admission and was protected in the United States.
2. The decision-maker was entitled to treat the charges as possibly having substance. Political motivation did not establish that the charges were wholly baseless. The claimant had not supplied material enabling an informed assessment of the underlying merits, and the authorities were not required to conduct a mini-trial. The seriousness of the charges, the Red Notice, possible extradition or immigration proceedings, effects on relations with Russia and international co-operation, and possible costs to the public purse were all matters capable of being taken into account.
3. The decision notice gave adequate and intelligible reasons. It was not necessary to separate mechanically the assessment of whether exclusion was conducive to the public good from the discretionary question whether refusal seemed right. The reasoning showed that both matters had been considered. The rationality standard applied; the decision was also proportionate on the facts.
4. The ECO had unlawfully surrendered her decision-making function by treating London’s advice as a direction. However, the February Submission and meeting provided an adequate briefing, and there was no real prospect that the ECO would have reached a different conclusion. The circumstances were exceptional. The court therefore declined, in its discretion, to quash the decision.
5. The claimant had no statutory appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002. Article 4 of the 2008 Order brought the amended section 88A into effect for applications required to be considered under the Points Based System, including refusals under the general grounds. Judicial review was therefore the proper route.

The claim was dismissed.

The claimant applied for administrative review after refusal of entry clearance; the decision was confirmed in April 2011. The High Court then dismissed the judicial review claim on all grounds, including by exercising its discretion not to quash the decision despite the conceded unlawful surrender.