Delroy Campbell v Entry Clearance Officer, Kingston

An exclusion decision is distinct from an exclusion order. The Secretary of State may make an exclusion decision against a non-EEA national under the extra-statutory power preserved by Immigration Act 1971, including after that person has voluntarily left the United Kingdom.

The Zambrano principle may apply to an entry-clearance refusal. It is engaged only where refusal would in fact deprive a Union citizen of the genuine enjoyment of the substance of citizenship rights by forcing that citizen to leave the Union. Economic disadvantage and the wish to preserve family unity are insufficient without the necessary relationship of dependency.

In assessing Article 8 proportionality where an excluded person seeks re-entry, no fixed period of exclusion should be imposed. The effect of time on family circumstances and on the public interest must be assessed on the facts.

The appellant, a Jamaican citizen, appealed against refusal of entry clearance to join his British-citizen wife in the United Kingdom. The refusal was mandatory under paragraph 320(6) of the Immigration Rules because the Secretary of State had personally directed that his exclusion was conducive to the public good after his voluntary departure from the United Kingdom.

The First-tier Tribunal dismissed the appeal. An earlier Upper Tribunal panel found material errors in its Article 8 assessment and set its decision aside. On re-making the decision, the Tribunal considered the legality and effect of the exclusion decision, the appellant’s family relationships with his wife and children, the possible application of Article 20 TFEU, and whether refusal was proportionate under Article 8.

1. Appeal dismissed. The First-tier Tribunal had materially erred in law and its decision was set aside, but the Upper Tribunal re-made the decision by dismissing the appeal.
2. An exclusion decision was not an exclusion order. An exclusion order under regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006 was distinct from the Secretary of State’s extra-statutory power, preserved by section 33(5) of the Immigration Act 1971, to exclude a non-EEA national where presence was not conducive to the public good. The decision remained lawful although made 17 days after the appellant had voluntarily left. He had been warned that exclusion could follow, knew of it by January 2009, and did not challenge it.
3. The Tribunal held that the Zambrano v Office National de l'Emploi (ONEm) principle was capable in principle of applying to an entry-clearance case. Article 20 TFEU nevertheless did not assist the appellant. The British-citizen children remained in the United Kingdom with their mother, who could care for them. The appellant’s continued exclusion did not compel them to leave the Union or deny them the substance of their Union-citizenship rights. Family unity and economic detriment did not establish the required dependency.
4. The refusal was in accordance with law for Article 8(2) purposes. The Tribunal accepted that the appellant had family life with his wife and child, and that his absence caused detriment. Those interests did not outweigh the public interest arising from his prolonged unlawful residence, false-document offence, awareness that exclusion could follow voluntary departure, and the valid exclusion decision. The low assessed risk of reoffending did not alter that balance.
5. There was no fixed period during which a voluntarily departing person subject to exclusion must remain outside the United Kingdom. The passage of time required a fact-specific Article 8 assessment, although the public interest in exclusion might generally diminish over time. On the facts at the February 2010 decision date, only 17 months had passed since departure and refusal was proportionate.

• Upper Tribunal (Immigration and Asylum Chamber): An earlier Upper Tribunal panel found that the First-tier Tribunal had materially erred in its Article 8 assessment and set aside its decision. On re-making the appeal, the Tribunal dismissed it.
• First-tier Tribunal: On 3 September 2010, the First-tier Tribunal dismissed the appeal against refusal of entry clearance.