Personal Immigration

Court of Appeal rules on Appendix FM suitability criteria and criminal convictions

The Court of Appeal in Entry Clearance Officer -United States of America v MW (United States of America) & Ors [2016] EWCA Civ 1273 (14 December 2016) has ruled that an applicant attempting to enter the UK under the Family Migration Rules will usually need to demonstrate "very compelling factors" for a decision to refuse entrance due to their criminal record to be overturned.

Facts

The Respondent was an American citizen. He had been convicted of an offence in 2005, for which he was sentenced to four years’ imprisonment. In 2008, he was convicted of another offence, and received a further 16 months in prison. He was fully discharged from parole by May 2011.

In 2012, he met a British citizen. They then married. As she was a firefighter by profession, it was not possible for her to move to the United States. She agreed to act as a sponsor for him and his children from a previous relationship to enter the UK.

However, due to his previous convictions, he was excluded under Appendix FM S-EC.1.4 of the Immigration Rules. This states that an applicant can be refused entry clearance if their exclusion is conductive for the public good because they have:

(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or
(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence.

The Rules then go on to state that:

unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.

The First Tier Tribunal

In the FTT, it was considered whether or not the decision of the Entry Clearance Officer engaged Article 8, the right to a family life, and if so whether the refusal was proportionate. In light of the remorse of the Respondent, his rehabilitation and the relationships which had been built between different members of the two families, the refusal was overturned.

The Upper Tier Tribunal

The Appellant submitted that the judge had erred as, before considering whether or not there was a claim under the Human Rights Act 1998, it was necessary for her to identify case-specific “compelling circumstances" before she could do so. This was rejected by the UTT, which stated that this construal of the Immigration Rules was contrary to the very wording of the rules.

The Court of Appeal

This decision was also appealed, primarily on the approach to Human Rights claims under S-EC.1.4. It was submitted that whilst a tribunal was not precluded from even considering a human rights claim unless compelling factors or exceptional circumstances were demonstrated, factors such as criminal convictions were important statements of public policy which had to be expressly considered and addressed before such an appeal could be allowed.

The Court of Appeal, comprised of Sir Terence Etherton MR, Lady Justice King, Lord Justice Irwin allowed this appeal. It was found that the intention behind the Immigration Rules Appendix FM para. S-EC.1.4 was to emphasise the public interest in maintaining refusal of entry. "Very compelling factors" would usually be required to outweigh the public interest in maintaining refusal.

Individuals with previous criminal convictions will, therefore, have to be aware that even if they have a strong claim under the HRA for why entry should be allowed, the Court may choose not to consider it at all.

Contact Our Immigration Barristers

For expert advice in relation to an application or appeal under Appendix FM to the Immigration Rules, contact our family migration immigration barristers on 0203 617 9173 or via our online enquiry form.

Source: Entry Clearance Officer -United States of America v MW (United States of America) & Ors [2016] EWCA Civ 1273 (14 December 2016)

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