OA008482014 & Ors.

"In any event it is respectfully requested that if the Immigration Judge is satisfied that the relationship is genuine and subsisting (and her illegal entry/exit to/from the UK forms part of reaching that conclusion) then the application is remitted back to post in order to consider the applications again with specific regard to any clandestine activity and some intention to significantly frustrate the Immigration Rules."

The judge found that there was a genuine and subsisting relationship and noted the submissions at paragraph 30 that if he was minded to allow the appeal he was invited to remit the matter back to the Entry Clearance Manager and he was referred to paragraph 320(11) of the Immigration Rules by the Presenting Officer.

By way of counter submission the appellant's representative stated that the Tribunal had no power under the Rules to remit the matter back to the Entry Clearance Officer.

At the hearing Ms Sreeranam accepted that the Entry Clearance Officer had not in fact recorded a reference to paragraph 320(11) in the initial refusal notice and accepted that the factual basis had been before the Entry Clearance Officer in which to make a discretionary ruling under paragraph 320(11) but it was not raised by the Entry Clearance Officer.

Even if the judge could have considered "the question of paragraph 320(11)" as this could not apply to the children as they had not breached any Immigration Rules and it is clear from the government guidance at RFL7.1 in respect to "frustrating the intentions of the Immigration Rules" that there should be aggravating circumstances as well as being an immigration offender or in breach of UK immigration or other law.