BS (India) v Secretary of State for the Home Department

Paragraph 320(11) of the Immigration Rules contains a non-exhaustive approach to aggravating circumstances. Prior deception may justify refusal even where the current application contains no deception, particularly where there has been concealment, use of another sponsor, repeated entry, and misleading conduct in an earlier appeal. A later grant of indefinite leave to remain does not amount to an amnesty. Revised human-rights rules do not apply retrospectively unless transitional provisions require that result. Where the traditional Razgar approach applies, an appellate court will not interfere with a tribunal’s Article 8 assessment absent an error of law.

The applicant sought permission to appeal against the Upper Tribunal’s decision, which had remade the First-tier Tribunal’s decision and dismissed his appeal against refusal of entry clearance as the spouse of a United Kingdom citizen. The refusal relied on prior deception and aggravating circumstances under paragraph 320 of the Immigration Rules, together with Article 8 of the Convention.

The Upper Tribunal found that the applicant had concealed his wife’s presence in the United Kingdom in earlier applications and had misled the First-tier Tribunal during an earlier appeal. The central issues were whether paragraph 320(11) applied despite the absence of deception in the current application, whether revised rules introduced on 9 July 2012 applied, and whether the Article 8 assessment disclosed an arguable error of law.

The Court of Appeal, Beatson LJ, refused the application for permission to appeal.

1. Applicable rules. The Entry Clearance Officer decided the application on 20 June 2012. The revised rules introduced by HC194 on 9 July 2012 therefore did not apply. The Court followed Edgehill v Secretary of State [2014] EWCA Civ 402 and Singh and Khalid v Secretary of State [2015] EWCA Civ 74. Haleemudeen v Secretary of State [2014] EWCA Civ 559, which reached the contrary view, had been held per incuriam.
2. Paragraph 320. The earlier First-tier Tribunal decision was a public document which the Upper Tribunal was entitled to consider. Although best practice required notice and an opportunity for submissions before relying on it, the failure to do so did not create an arguable ground in the circumstances. Paragraph 320(11)’s examples of aggravating circumstances are not exhaustive. The applicant’s concealment of his wife’s unlawful presence, use of another sponsor, repeated entries, and conduct of the earlier appeal could amount to significant contrivance and aggravating circumstances, notwithstanding the absence of deception in the current application.
3. Article 8. The Upper Tribunal was entitled to take account of the applicant’s compliance with other requirements, voluntary departure, visits to his wife, subsisting marriage, and adult children in the United Kingdom. Those compassionate factors had been considered. The refusal was not shown to involve an error in the traditional Razgar analysis.

The application was refused.

1. Court of Appeal (Civil Division): [2015] EWCA Civ 1408 — refused permission to appeal from the Upper Tribunal’s decision.
2. Upper Tribunal: decision promulgated on 13 December 2013 — found a material error of law, remade the First-tier Tribunal’s decision, and dismissed the applicant’s appeal.
3. First-tier Tribunal: decision dated 12 June 2013 — dismissed the appeal against the Entry Clearance Officer’s refusal of entry clearance on 20 June 2012.