The Entry Clearance Officer v Oniel Spence

On an Article 8 appeal against refusal of family entry clearance, a tribunal must give reasons that are logically consistent with its factual findings. Where it finds that an applicant has a past and continuing sexual attraction to children, a conclusion that exclusion is not conducive to the public good, without explaining why there is no public interest in refusal, is perverse or inadequately reasoned. Appellate caution does not prevent correction of internal contradiction. The matter should be remitted where relevant countervailing circumstances have not been determined.

The Entry Clearance Officer refused Mr Spence, a Jamaican national, entry clearance under the suitability provisions of Immigration Rules Appendix FM. He had been convicted in the United States of a sexual offence against a child. His wife and daughter were British nationals living in the United Kingdom.

The First-tier Tribunal allowed his Article 8 human rights appeal. The Upper Tribunal dismissed the Secretary of State’s appeal. The Court of Appeal considered whether the First-tier Tribunal’s conclusion was perverse or inadequately reasoned, and whether that ground had been raised sufficiently below.

Appeal allowed and remitted. The Court of Appeal allowed the appeal and remitted the matter to the First-tier Tribunal. The tribunal had not made findings on other relevant issues needed for the Article 8 assessment.

1. Under Appendix FM paragraph S-EC.1.5 of the Immigration Rules, conduct, character and associations may make exclusion conducive to the public good and entry clearance undesirable. Refusal of entry clearance will serve a legitimate aim and be proportionate under Article 8 unless other circumstances outweigh that public interest.

2. The First-tier Tribunal found that Mr Spence had previously been sexually attracted to children, had pursued relationships with children, and might not have addressed that attraction. Its conclusion that exclusion was not conducive to the public good therefore contradicted its own assessment. That conclusion was perverse, or alternatively was unsupported by adequate reasons.

3. The approach was consistent with the caution required when reviewing expert tribunals. AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 676 and MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 did not prevent intervention where the tribunal’s reasoning was internally self-contradictory, rather than merely a different assessment of the facts.

4. Although the grounds below could have been clearer, the challenge that the conclusion was at odds with specified findings substantially alleged perversity or illogicality. It was therefore not a new ground. In any event, permission would have been granted to raise it because the issue required no new evidence, would not have altered the proceedings below, and caused no unfairness or detriment.

5. Lady Justice Elisabeth Laing LJ expressed a provisional view, without argument, that on a human rights appeal the First-tier Tribunal’s function is to decide whether the refusal is unlawful under section 6 of the Human Rights Act 1998. It should assess the nature and quality of the Article 8 rights, any interference, and proportionality, rather than act as a proxy for the Secretary of State’s primary assessment of conduciveness. Lord Justice Singh declined to express a view on that wider issue.

1. Court of Appeal (Civil Division): allowed the appeal in [2026] EWCA Civ 722 and remitted the matter to the First-tier Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal: allowed the appeal against refusal of entry clearance and the human rights claim on Article 8 grounds.