HETAL RAJESH PATEL v ENTRY CLEARANCE OFFICER

A claim of conspicuous unfairness arising from an earlier immigration decision requires the claimant first to establish that the earlier decision was unlawful on public law grounds. A later finding that deception was not proved in a separate appeal does not, without more, show that the earlier decision was unlawful.

In any event, judicial intervention is confined to extreme cases. Promptness, the availability and non-pursuit of a judicial-review remedy, and the absence of a conclusion which the decision-maker could only have reached in the claimant’s favour may defeat a claim of conspicuous unfairness. Exceptional circumstances do not make a refusal of discretionary leave outside the Immigration Rules irrational.

The applicant had left the United Kingdom voluntarily after refusal of leave to remain. Her subsequent application for entry clearance as a Tier 1 (General) Migrant was refused in 2010 under paragraph 320(7A) of the Immigration Rules on the basis of an allegedly false representation.

A later visitor application was refused under paragraph 320(7B). The First-tier Tribunal allowed her appeal against that later refusal, finding that deception in the 2010 application had not been established. Following requests for reconsideration, the Entry Clearance Officer accepted that the paragraph 320(7A) refusal no longer stood but declined to grant entry clearance in the now-closed Tier 1 route or equivalent discretionary leave.

The applicant sought judicial review of the 2013 reconsideration decision. The central issue was whether the absence of a present remedy for the assertedly wrongful 2010 refusal was irrational or unfair.

1. The application for judicial review was refused. The applicant had not established that the Entry Clearance Officer’s decision of September 2010 was unlawful on public law grounds. The later First-tier Tribunal finding that dishonesty had not been proved in a different appeal did not show that the earlier decision was one which the Entry Clearance Officer could not lawfully reach on the evidence then available.
2. The Tribunal followed R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546. In a claim based on the Rashid line of authority, the court must first determine whether the earlier decision was legally flawed. Judicial review concerns illegality, rather than maladministration. That requirement disposed of the substantive unfairness challenge.
3. Procedural-unfairness authorities did not assist. No particular procedural unfairness had been pleaded or identified in the treatment of the applicant’s case.
4. Alternatively, even if prior unlawfulness were not required, the facts did not disclose conspicuous unfairness. Intervention is reserved for extreme cases in which, on proper consideration of the facts, the decision-maker could only have reached a conclusion favourable to the applicant. The applicant had delayed for nearly three years in pursuing her administrative review and had failed to use an available judicial-review remedy against the 2010 decision or any failure to review it.
5. The refusal to grant discretionary leave outside the Immigration Rules was not irrational. The Entry Clearance Manager’s acknowledgement that the circumstances were exceptional did not require a grant of leave akin to that available under the former Tier 1 route.
6. The respondent was entitled to costs, to be assessed if not agreed. Permission to appeal to the Court of Appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application dismissed: [2015] UKUT 77 (IAC).
• First-tier Tribunal: In March 2013, allowed the applicant’s appeal against refusal of a later visitor application, concluding that the respondent had not established deliberate deception in the 2010 application.
• Entry Clearance Officer: Refused the Tier 1 (General) Migrant application in September 2010 under paragraph 320(7A) of the Immigration Rules. In 2013, declined to reopen that application or grant equivalent discretionary leave, while recording that the paragraph 320(7A) refusal no longer stood.