OA052572014

We have been referred to the case of PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) . In that case the Upper Tribunal commented at paragraph 14:

As was the Appellant's case, in the PS case the Entry Clearance Officer had failed to recognise that the Appellant had voluntarily left the UK in order to make an application to legitimise his entry into the UK.

The Upper Tribunal in PS further commented at paragraph 14 -

The decision notice refusing entry clearance states the reasons why the Entry Clearance Officer has considered that paragraph 320(11) applied.

There was no reflection of what other considerations the Entry Clearance Officer has considered in the exercise of his discretion. There were clear family life considerations that had not been addressed by the Entry Clearance Officer in his refusal notice.

The Entry Clearance Officer should have considered that the Appellant voluntarily left the UK, he should have considered that the Appellant was honest about her status as an overstayer on the application form when weighing up the failure to disclose and he should have considered whether there were any aggravating factors.

The Officer should then have conducted a balancing exercise before reaching his decision about entry clearance.

We consider that the Entry Clearance Officer's decision was therefore not in accordance with the law."

The First-tier Tribunal then went on to indicate that it was allowing the appeal outright.

The Secretary of State, in seeking permission to appeal to the Upper Tribunal, contended that the First-tier Tribunal had erred in failing to address the Entry Clearance Officer's concerns regarding shortcomings in the documentary evidence pertaining to the financial requirements of the Immigration Rules and in failing to adequately consider the issues under paragraph 320(11). The Secretary of State noted in her grounds that the First-tier Tribunal had made no finding "on whether discretion should have been exercised differently".

On 5 th June 2015, permission to appeal was granted by a judge of the First-tier Tribunal. The salient part of that grant reads as follows;

In fact, it turned out not to be the strongest ground because Mr Mills chose not to pursue it. He acknowledged, before Mr Vokes could even make the point, and indeed in my judgment, entirely correctly, that it could not be pursued because of the concession which had been made before and accepted by the First-tier Tribunal that the financial requirements were met. This meant that the only live issue of dispute between the parties was that relating to the First-tier Tribunal's treatment of paragraph 320(11). Here, Mr Mills contended that it had materially erred. This was because it had not decided, for itself, what the decision regarding paragraph 320(11) should be. Having decided that the Entry Clearance Officer had not properly exercised the discretion afforded to him by the Rule (discretion because it says entry clearance should normally be refused under certain circumstances) it should then have either concluded that the decision was unlawful and effectively remitted to the Entry Clearance Officer for a lawful decision to be made or gone on to exercise the discretion, for itself, based upon its findings.

Mr Vokes, I think it is fair to say, accepted the inevitability of my conclusion that the First-tier Tribunal had erred in law in the way Mr Mills contended it had. Having only decided that the Entry Clearance Officer had not exercised his discretion correctly, such that the decision was not in accordance with the law, and not having gone beyond that, it was not open to it to simply allow the appeal outright.

I indicated to the parties that I would, in the circumstances, set aside the First-tier Tribunal's decision only on the basis it had erred to that extent. I indicated that everything else in the determination, including the findings of fact, would be preserved. There was no disagreement by either party as to that approach. I also indicated, again with the agreement of the parties, that I would now move on to consider how the decision should be remade. Mr Vokes accepted that it would not be necessary for him to call any oral evidence with respect to that discrete issue so that the matters could be dealt with by way of submissions.

Mr Mills addressed me, on the point, first of all. He acknowledged that there was no dispute about the fact that the Claimant and Sponsor have a subsisting relationship. He acknowledged that she had made a voluntary departure and that these were factors in her favour. Against that, however, was her immigration history. She had been an overstayer and an absconder. Those were aggravating factors.

Mr Vokes said he accepted that the overstaying was an aggravating factor but, essentially, it was the only one. It had not been worsened by her seeking to use false identifies or the like. She had simply gone to ground. I should bear in mind what was said in the case of PS , cited above, to the effect that substantial credit must be given to a person who overstays but then makes a voluntarily departure. The relationship between the Claimant and the Sponsor was a genuine one. The Sponsor had even gone to China when she returned there and, had not health difficulties and the need for treatment in the UK arisen, he would have remained there, at least, for a longer period. If the Claimant were to be successful in her appeal she would only receive a grant of leave limited to some two and a half years, as opposed to a grant of indefinite leave, so if there was any further breach of the Rules the Home Office would be able to act against her.

I have carefully considered those helpful competing submissions. I have reminded myself of the full content of paragraph 320(11) of the Immigration Rules. Essentially, the Rule states that entry clearance should normally be refused;

Here, there is no dispute that the Claimant's conduct, in overstaying, brings her within the scope of Rule 320(11). There was also a suggestion that she had used deception when seeking entry clearance in that she had answered a question on the relevant entry clearance application form in a way which seemed to indicate she had been living at her current address in China for a period of four years, as at the date of application, when, in fact, she had spent a good deal of that time unlawfully in the UK. However, the First-tier Tribunal found that there was no deliberate attempt to deceive, because she had made it clear elsewhere that she had overstayed and had not left the UK until 2014, such that there was no intention to mislead. As indicated, the findings of the First-tier Tribunal have been preserved.

Of course, the fact that the Rule indicates leave to enter will "normally" be refused means that my starting point, given that the Claimant's conduct falls within the scope of the Rule, is that such should be refused. I look, therefore, to the Claimant to persuade me otherwise. I take into account, against her, the above points made by Mr Mills and bear in mind that her period of overstaying was a lengthy one. The mere fact of overstaying was aggravated, in my view, by her failing to respond to the Home Office when they apparently located her in 2010. Although Mr Vokes contends that she only "went to ground" as distinct from committing some of the other actions specified in paragraph 320(11)(iv) that, of itself, is serious. There are , though, the various points in her favour to which Mr Vokes referred. I accept, following PS , that weight is to be attached to her making a voluntary departure from the UK in order to seek entry clearance. There is no dispute about the fact that that is what she did. I also take into account the findings of the First-tier Tribunal, unchallenged, to the effect that she and her husband are in a genuine relationship. He is, of course, a British national who, understandably, wishes to enjoy his family life, with her in the UK. She had, it was found in preserved findings, acted honestly when making her application for entry clearance rather than seeking to hide her previous adverse immigration history. Whilst there are certainly arguments both ways, I have concluded that, on the facts, this is a case where the Claimant has been able to demonstrate that, in all the circumstances, the normal situation should not apply and that entry clearance should be granted.