The Entry Clearance Officer, New York v F

Immigration Rules paragraph 320(18) requires a two-stage approach. The decision-maker must first consider whether admission is justified by strong compassionate reasons. If so, the paragraph does not apply. If it does apply, refusal remains discretionary because the paragraph falls within the Rules’ category of grounds on which entry clearance should normally be refused.

A decision-maker who neither addresses compassionate reasons nor exercises that discretion misapplies the Rules. Where an appeal succeeds, the tribunal should identify the correct legal ground, since leave granted outside the Rules may adversely affect a later application to extend leave.

The claimant, a United States national married to a British citizen, applied for entry clearance as a spouse after returning to the United States to make the required out-of-country application. The Entry Clearance Officer refused the application because of a historic criminal conviction.

The First-tier Tribunal treated paragraph 320(18) of the Immigration Rules as unsatisfied and allowed the claimant’s appeal on Article 8 grounds. It did not clearly determine the appeal under the Rules. The Entry Clearance Officer appealed, contending that the Article 8 conclusion lacked adequate reasons.

The central issues were the proper operation of paragraph 320(18), the legal consequence of the Officer’s failure to consider its requirements, and the appropriate substituted disposal.

1. The appeal was allowed. The Upper Tribunal found an error of law in the First-tier Tribunal’s decision, set it aside, substituted a decision allowing the claimant’s appeal, and directed that entry clearance be issued.

2. Paragraph 320(18) of the Immigration Rules has two distinct stages. First, the decision-maker must assess whether admission would be justified for strong compassionate reasons. If satisfied that such reasons exist, paragraph 320(18) has no application. Secondly, where the paragraph applies, it is a discretionary rather than mandatory ground for refusal because it appears under the heading of grounds on which entry clearance should normally be refused.

3. The Entry Clearance Officer erred by treating the relevant conviction as sufficient to establish refusal without considering strong compassionate reasons or showing that the discretion had been exercised. The First-tier Tribunal also erred by referring to exceptional rather than strong compassionate circumstances and by failing to resolve the Rules appeal on the basis of the Officer’s defective decision.

4. The Tribunal exercised its power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to set aside the decision. It considered that an Article 8-only outcome would result in leave outside the Rules and could prejudice a later application for leave as a spouse.

5. On the established facts, the claimant met all substantive spousal requirements, was rehabilitated, posed no danger to the community, and had previously entered the United Kingdom without objection. Even if there were no strong compassionate reasons, the discretion under paragraph 320(18) could rationally be exercised only in his favour. Entry clearance was therefore directed.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Entry Clearance Officer’s appeal for error of law, set aside the First-tier Tribunal’s decision, substituted a decision allowing the claimant’s appeal, and directed the issue of entry clearance.

• First-tier Tribunal: Allowed the claimant’s appeal under Article 8, without a clear determination under paragraph 320(18) of the Immigration Rules. No citation is stated in the judgment.