The applications were also refused under Rule 159A(iii), which requires that a domestic worker must intend to travel to the UK in the company of their employer or his spouse or children. As the sponsor had already come to the UK with his spouse and children, clearly the Appellants could not satisfy this Rule. However, there is a discretion outside of the Rules contained in the Immigration Directorate Instructions (IDIs) to allow domestic workers to travel independently provided that there is no excessive time lapse and provided that satisfactory evidence is produced to show why the domestic worker is travelling alone. The entry clearance decision failed to have regard to this policy.
Accordingly, the First Tier Tribunal judge said that he would have allowed the appeal on this point as the decision was not in accordance with the law because of the failure to have regard to the policy in the IDIs. However, he said that it was not appropriate to allow the appeal on this basis as he was already dismissing the appeal under Paragraph 159A(ii) so the overall entry clearance decision would inevitably remain the same.
As has been set out above, the Upper Tribunal allowed the appeal against the decision on Paragraph 159A(ii) grounds. Consequently, the basis for refusing to allow the appeal against the decision under Paragraph 159a(iii) as not in accordance with the law fell away. However, the Upper Tribunal went further. On the facts of the case, it found that this was one of the rare cases allowed for by the Court of Appeal’s decision in Secretary of State for the Home Department v Abdi [1996] IAR 148 where it was appropriate for the court to substitute its own decision for that of the decision-taker as it was inevitable that the Appellants would be given entry clearance.
(iii) The Paragraph 320(7B) issue - Deception
In refusing the applications, the Entry Clearance Officer alleged that the Appellants had used Deception in a previous application. The allegation was made because the Appellants had submitted documentary evidence of employment which described them as managers, whereas they were, as has already been noted, nannies. The applications were therefore refused under Paragraph 320(7B) which places a bar on entry clearance for 10 years where Deception has been used in an application for entry clearance. The First Tier Tribunal judge dismissed the appeals on this point because he considered that, even though it had not been established that the false statements were made with the deliberate intent of securing advantage in immigration terms, that was immaterial because intent was irrelevant for the purposes of Paragraph 320(7B). However, the Upper Tribunal concluded that the consequences of Paragraph 320(7B) were so severe (a 10 year ban from the UK) that the bar had to be raised for its construction. Therefore, in order to fall within the 10 year exclusion contained within Rule 320(7B), the Entry Clearance Officer had to show that the Appellants did make the false statements with the deliberate intent of securing advantage in immigration terms. It agreed with the First Tier Tribunal judge that they did not and the appeals were allowed on this point as well.
The Upper Tribunal also acknowledged that the argument for its interpretation of paragraph 320(7B) was reinforced by the Court of Appeal’s interpretation of the word ‘false’ in Rule 320(7A) in A v Secretary of State for the Home Department [2010] EWCA Civ 773.
The time limit in which the Entry Clearance Officer can seek permission to appeal to the Court of Appeal has not yet expired.
Anyone who thinks that their immigration status may be affected by this case should seek professional legal advice. Gherson's team of solicitors and paralegals are ideally placed to provide advice on this or any other issue relating to immigration.
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