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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

04 JUL 2013

R (on the application of Ivlev) v Entry Clearance Officer, New York [2013] EWHC 1162 (Admin); (2013) PLLR 081

Immigration – Entry Clearance – Interpol – Red Notice

The Entry Clearance Officer had unlawfully surrendered responsibility for making the decision as to the Claimant’s case, but as the Defendant had provided sufficient evidence to demonstrate that the same result would have been reached, no relief was granted.

9 May 2013

Administrative Court

Sales HJ

(1)        The Claimant, a Russian national, challenged the Defendant’s decision to refuse him clearance under the Tier 1 (General) Migrant category of the Points Based System for highly skilled migrants. The Claimant has dual Russian/US nationality, is a senior member of a Moscow law firm and lives in the USA.

(2)        The Russian police have issued a ‘Red Notice’ through Interpol, calling for the Claimant’s arrest. The US authorities have decided not to arrest or extradite the Claimant.

(3)        The Claimant wishes to have clearance to enter the UK to carry on his law practice. The Claimant scored sufficient points to be granted clearance, but the decision notice refused entry on the basis that his exclusion was for the public good. When the Entry Clearance Officer (‘the ECO’) received the application for entrance clearance, it contacted the UK Border Agency to seek advice as to whether clearance would be conducive to the public good.

(4)        The Claimant alleged that:

(a)        There had been an unlawful surrender of responsibility for the decision by the ECO in New York;

(b)        The criminal charges against him ought to be disregarded by the British authorities due to their being politically motivated and without substance. It is contended that by considering these charges as a reason not to grant him clearance, the decision-maker had erred in law.

(5)        The issue as to unlawful surrender was conceded by the Secretary of State.

(6)        HELD: The Court found that the Claimant had failed to establish the lack of merit in the allegations against him. Further, the Defendant was not obliged to call for further information beyond that which the Claimant had chosen to submit. In neither his application for clearance nor this application had the Claimant provided any explanation of why the charges against him were alleged to be without substance. Such a conclusion could not be drawn on the basis of the evidence before the ECO or the Court. 

(7)        The Court emphasised that under paragraph 320 of the Immigration Rules, the decision-maker has a wide power to assess what may be conducive to the public good.

(8)        The UK had done nothing to bring into being the state of affairs, and it was not in a position to resolve the factual issues underlying the charges against the Claimant.

(9)        The Court did not accept that there had been insufficient reasons given in the decision notice. The reasons given had been intelligible and allowed the reader to understand why the matter had been decided as it had. Further, all of the factors that had been taken into account by the decision-maker were relevant considerations that could lawfully be taken into consideration.

(10)     The Court emphasised that this was not a case of the authorities in the UK failing to protect a violation of the rule of law within the UK’s territory. The UK was under no duty to try to induce a person to enter its territory in order to be arrested.

(11)     The Secretary of State had conceded that the ECO, in treating herself as subject to a direction from the UKBA’s head office, unlawfully surrendered, abdicated or delegated her decision-making authority. The Court agreed however that the quashing of this decision would constitute an unmerited windfall for the Claimant and the Defendant had discharged the onus on her to show that it was just and appropriate to refuse to grant a quashing order. Particularly persuasive was the fact that the ECO would not, whatever the circumstances of this case, have come to a different assessment of the Claimant’s application. The appropriate response was to be reflected in costs, but not in a further penalty of granting relief where it was not due.

(12)     The claim was thus held to succeed in part, but there was no grant of relief.

Claim succeeded in part.

Key Paragraphs

[25] – Lack of evidence.

[27] – Failed establish lack of merit.

[28] – No need protection.

[59] – Wide power.

[61] – Entitled to conclude.

[65] – Not able resolve factual issues.

[66] – Reasons.

[67] – Intelligible.

[74] – Rule of law.

[77] – Relevant considerations.

[79] – Unlawful surrender conceded. 

[88] – Rational.

[93] – Protect violation.

[106] – Not induce to arrest.

[114] – Unmerited windfall.

[117] – Onus discharged.

[120] – Appropriate response.

[132] – Only judicial review available.

[133] – Conclusion.

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