Entry Clearance Officer -United States of America v MW (United States of America) & Ors

Paragraph S-EC.1.4 of the Immigration Rules does not impose a threshold which must be met before a tribunal may consider an Article 8 claim. Refusal contrary to the Convention is an independent reason not to refuse entry clearance.

The rule is nevertheless an authoritative statement of public policy. A tribunal must address it expressly in the proportionality assessment. Ordinarily, very compelling reasons are required to outweigh the public interest in refusing entry to an applicant with the specified criminal convictions. Care is required where a foreign conviction concerns conduct which is not criminal in the United Kingdom, or where a foreign sentence is grossly disproportionate.

The first respondent, a United States citizen, applied for entry clearance as the partner of a British citizen. He had received sentences of four years’ and 16 months’ imprisonment in the United States. The Entry Clearance Officer accepted that the other entry requirements were met, but refused the application under paragraph S-EC.1.4 of Appendix FM to the Immigration Rules. The associated applications of his children were refused consequentially.

The First-tier Tribunal, after a concession that the applications failed under the Rules, allowed the appeals under Article 8. The Upper Tribunal dismissed the Entry Clearance Officer’s appeal. The Court of Appeal considered whether paragraph S-EC.1.4 preconditioned consideration of Article 8 and the weight to be given to the policy of refusal.

1. Appeal allowed in part. The Court quashed the decisions of the First-tier Tribunal and Upper Tribunal and remitted the matter to the First-tier Tribunal for a rehearing. The appeal on the separate ground concerning immigration status was dismissed.

2. Paragraph S-EC.1.4 does not prescribe a threshold of compelling or exceptional circumstances before a tribunal may consider an Article 8 claim. Its final sentence distinguishes the question whether refusal would breach the Convention from the question whether compelling factors exceptionally outweigh the public interest in maintaining refusal. If refusal would be contrary to Article 8, that is an independent basis for allowing entry clearance. This construction was consistent with R (Sehwerert) v Entry Clearance Officer [2015] EWCA Civ 1141.

3. The rule remains an authoritative statement of public policy which a court or tribunal must consider carefully and expressly. In the ordinary case, its policy carries weight comparable to that governing deportation of foreign criminals. Where the specified conviction provisions apply, very compelling reasons will ordinarily be required to outweigh the public interest in refusal. This did not remove the tribunal’s duty to determine Article 8 in accordance with Convention and domestic principles, as explained in Hesham Ali (Iraq) [2016] UKSC 60.

4. The application of that policy requires care. A foreign conviction for conduct not criminal in the United Kingdom may make application of the policy inappropriate. A similar issue may arise where a foreign sentence is wholly disproportionate to the conduct. The First-tier Tribunal had not expressly addressed the policy or the required weight, so its proportionality decision could not stand.

5. There was no material error in the failure expressly to describe the respondents’ status as precarious. The First-tier Tribunal was plainly aware that they had not entered the United Kingdom and had no immigration status there.

• Court of Appeal (Civil Division): Allowed the Entry Clearance Officer’s appeal on the construction and application of paragraph S-EC.1.4, dismissed the status ground, quashed both lower decisions, and remitted the appeals for rehearing: [2016] EWCA Civ 1273.
• Upper Tribunal (Immigration and Asylum Chamber): On 16 January 2015, dismissed the Entry Clearance Officer’s appeal and upheld the First-tier Tribunal’s Article 8 decision.
• First-tier Tribunal: On 18 February 2014, allowed the respondents’ appeals under Article 8 after it was conceded that they failed under the Immigration Rules.