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

On a second appeal, permission requires an important point of principle or practice, another compelling reason, and an arguable case with a real prospect of success. Under the Immigration Rules, paragraph 320(11), the conduct relied on to establish deception need not be wholly distinct from the aggravating circumstances. The two parts of the test may overlap. Repeated use of multiple false documents in attempts to obtain entry clearance by deception may therefore constitute aggravating circumstances. Permission was refused because the proposed construction argument had no real prospect of success.

The applicant sought entry clearance on the basis of a relationship with a person settled in the United Kingdom. The First-tier Tribunal accepted that the relationship was genuine but refused leave to enter under paragraph 320(11) of the Immigration Rules, relying on the applicant’s repeated use of fraudulent documents. The Upper Tribunal dismissed the appeal. The applicant renewed an oral application for permission to bring a second appeal, contending that the aggravating circumstances had to be distinct from the deception relied on under paragraph 320(11)(iv).

Permission to appeal refused. This was a renewed oral application concerning a second appeal. Permission would be granted only if the proposed appeal raised an important point of principle or practice, or there were some other compelling reason for the Court of Appeal to hear it. Although the proposed construction argument would have been significant if correct, it was not arguable with a real prospect of success.

1. Paragraph 320(11) of the Immigration Rules contains two elements: conduct which significantly frustrates the intentions of the Rules, and other aggravating circumstances.
2. Those elements are not hermetically sealed. Conduct falling within paragraph 320(11)(iv), namely deception in an application, may overlap with listed aggravating circumstances such as using multiple identities or switching nationality.
3. The First-tier Tribunal and Upper Tribunal were plainly entitled to treat the applicant’s use of multiple false documents, on more than one occasion and in attempts to obtain entry clearance by deception, as aggravating circumstances sufficient to engage paragraph 320(11).
4. The application for permission to appeal was accordingly refused.

• Court of Appeal (Civil Division): Sales LJ refused the renewed oral application for permission to appeal on 8 June 2015: [2015] EWCA Civ 791.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the applicant’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal: accepted that the relationship was genuine but refused leave to enter under paragraph 320(11) of the Immigration Rules.