Upper Tribunal (IAC)

Ukus (discretion: when reviewable) [2012] UKUT 00307(IAC)

This Upper Tribunal Case sheds light on the effects of strong compassionate circumstances on the discretion given to the Entry Clearance officer by Immigration rules. The First-tier Tribunal Judge concluded by finding that there were strong compassionate circumstances which the Entry Clearance Officer had failed to take into account sufficient for the discretion contained in paragraph 320(18) to have been exercised differently. He proceeded to allow the appeal under the Immigration Rules.
The Entry clearance officer before the Upper Tribunal contended that rule 320(18) affords a discretion, the Judge, having concluded that the Entry Clearance Officer had failed to reach a decision in accordance with the law should have “remitted the matter for reconsideration” instead of allowing the appeal.

The Upper Tribunal in deciding this case made a reference to s.84(i)(e) and (f) of the Nationality, Immigration and Asylum Act, 2002 and held that the provisions make clear that where the decision maker has a discretion which is vested in him under the Immigration Rules, the exercise of that discretion is appealable before the Tribunal, however only, once the decision maker has exercised his discretion in the making of the decision.
If the decision maker fails to exercise his discretion, that failure renders his decision ‘not in accordance with the law’ and, because it is a discretion which is primarily vested in the Secretary of State, the Immigration Officer or the Entry Clearance Officer, the appropriate course is to require the decision maker to complete his task by reaching a lawful decision on the outstanding application.
However, noticing the ECO’s decision making process the Upper Tribunal held that the decision is the one in which lawful discretion was exercised by the ECO and therefore appropriately reviewed by the FTT.
The UT provided four possible situations where the Tribunal is considering an appeal arising from the exercise of a discretionary power and held that it is for a Tribunal to decide into which of those four a decision falls to be determined. The tribunal held that in the present case the situation falls to be determined in the fourth category given in this case and held that by the exercise of his discretion and, in doing so, to reach a conclusion different from that of the Entry Clearance Officer, the FTT Judge made no error on a point of law. And The Entry Clearance Officer’s appeal was dismissed. (Commentary by Asad Maksud)

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