Cahyono, R (on the application of) v Entry Clearance Officer

Immigration Rule 320(18) is engaged by a conviction for an offence which, if committed in the United Kingdom, would be punishable by at least 12 months’ imprisonment. The relevant question is the seriousness of the offence, not the sentence actually imposed abroad or a speculative sentence that might have been imposed in the United Kingdom.

Entry clearance should normally be refused unless strong compassionate circumstances justify admission. Even where that exception is unavailable, a residual discretion remains. The decision-maker must consider the relevant circumstances, but the assessment of their weight is primarily for the entry clearance officer. Judicial review is available only where the resulting decision is irrational or unlawful.

The claimant sought judicial review of a refusal of entry clearance for a short visit to friends in the United Kingdom. He had been convicted in Indonesia of possessing ten ecstasy tablets and sentenced to four years’ imprisonment.

The original refusal was reconsidered after permission for judicial review had been granted. A fresh refusal was issued on 26 September 2012 under Immigration Rule 320(18). Permission to proceed was granted on the single ground that the fresh decision was irrational. The issues included the significance of the foreign sentence, the operation of the compassionate-reasons exception and residual discretion, and whether the entry clearance officer had considered the relevant matters.

1. The claim was dismissed. The claimant was convicted of an offence which, if committed in the United Kingdom, would have been punishable by 12 months’ imprisonment or more. Rule 320(18) was therefore engaged.
2. Rule 320(18) provides that entry clearance should normally be refused in such a case. If the officer is satisfied that strong compassionate circumstances justify admission, refusal on the basis of that rule is inappropriate. A residual discretion to grant entry clearance also remains in exceptional circumstances, even where strong compassionate circumstances have not been established.
3. The entry clearance officer was not required to speculate about the sentence which a United Kingdom court might have imposed. A possible sentence of less than 12 months would not automatically constitute a strong compassionate circumstance. The officer was entitled to regard possession of a Class A drug as a serious offence and to give substantial weight to the seriousness of the offence and the actual conviction.
4. The officer considered the claimant’s age, the lapse of time, the absence of further offending, employment, stable circumstances, personal relationships and the proposed social visit. His conclusion that those matters did not amount to strong compassionate reasons was rational. The officer was not required to consider an unidentified exceptional circumstance or to treat the sponsor’s confidence in the claimant as such a circumstance.
5. The claimant’s challenge based on allegedly excessive or inadequate weight failed. The court doubted whether such a complaint could succeed independently of irrationality, and in any event the decision was not irrational. The court also found no substantive misdirection concerning the effect of strong compassionate circumstances.
6. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed. Permission to appeal was refused.

This was a first-instance judicial review. The original refusal dated 23 November 2010 was reconsidered after permission was granted, resulting in a fresh refusal dated 26 September 2012. The High Court dismissed the challenge to the fresh decision.