Inner House allows judicial review of decision to refuse Indian woman’s visitor visa application
An Indian woman who challenged a decision not to grant her judicial review of the decision to refuse her a UK visitor’s visa has had her appeal allowed by a 2-1 majority in the Inner House of the Court of Session.
The petitioner and appellant, GK, sought to visit the UK for one month. She argued that she had a real case based on the conduct of the Entry Clearance Officer in considering her application.
The appeal was heard by Lord Glennie, Lord Woolman, and Lord Doherty. All three judges issued opinions.
No sufficiently strong ties
The petitioner lived with her brother and his family in India, having been widowed for some time. Her two daughters and her grandchildren lived in the UK. In September 2019, she applied for a visitor visa. The application was sponsored by one of her daughters and accompanied by representations and around 180 pages of material.
The application was refused by the Entry Clearance Officer (ECO) because he was not satisfied that she met the requirements of paragraph V4.2 of Appendix V of the Immigration Rules. In the decision letter, the ECO stated he was not satisfied that the petitioner’s circumstances were as stated in the application or that she had demonstrated ties that would necessitate her departure from the UK.
The reasons given for the ECO’s belief were that she had not disclosed the origin of recent funds credited to the joint bank account she held with her brother, and that the application documents did not demonstrate her brother’s employment and family circumstances. Further, the fact that she received financial support from her two daughters in the UK on which she was partially dependent indicated that she did not have sufficiently strong family or economic ties outside the UK to leave it after completion of a short visit.
Also included in the application was police advice given to the sponsoring daughter stating that there were safety concerns for her and her son if she were to travel to India rather than have the petitioner travel to the UK. The ECO was uncertain whether this advice was still valid as it was over a year old by the time he made his decision.
It was submitted for the petitioner that the ECO had applied the wrong test in considering her circumstances. Additionally, he refused permission on grounds which were not foreshadowed in the application form such as the full economic circumstances of her brother, information which was not requested in the original form. There was therefore a real prospect of success if the petition were allowed.
The respondent submitted that reduction of the letter would not serve any practical purpose, as it was open to the petitioner to submit a fresh application. In response to this point, the petitioner submitted that previous refusals would count against her in any fresh application, and that not reducing the decision created a risk of the same thing happening over again.
No need for constraints
In his opinion, with which Lord Doherty agreed, Lord Glennie said of the merits of the case: “I am satisfied that the petitioner has a real prospect of success on the first point sufficient to justify the grant of permission to proceed. Her contention, put short, is that it was procedurally unfair of the ECO to base his decision on perceived omissions from the material placed before him without raising those matters with the petitioner and giving her an opportunity to deal with them.”
Considering the arguments for the respondent, he said: “These are routine decisions and an applicant can apply again if unsuccessful – there is therefore no need for such procedural constraints and, in any event, it would be unduly burdensome to place such an obligation on an ECO considering the application.”
However, he went on to say: “Those arguments might well succeed, but it is, in my view, going ‘too far too fast’ to say at this stage that they are insurmountable. And if ultimately it is to be decided that the ECO is under no such obligation, better that that decision be made in an Opinion delivered after full argument than in a ruling after relatively brief submissions on an application for permission to proceed.”
On whether the petition would serve a practical purpose, he said: “If the court was persuaded that the ECO was required as a matter of procedural fairness to give the applicant an opportunity of dealing with matters of which she was previously unaware, and of answering questions on matters concerning the ECO of which she had had no prior notice, that in all probability would result in the reduction of this particular refusal; but it would also provide guidance to ECOs in dealing with any further application by the petitioner and others in her position.”
In his opinion, Lord Doherty added: “I respectfully agree with your Lordship in the chair that it would not be right to conclude at this stage that the availability of the option to submit a further application means that the petition would serve no practical purpose. I agree that there is a serious argument to the contrary. If the petition is permitted to proceed the court will have the opportunity to clarify the content of the requirements of procedural fairness in the circumstances which are admitted or established.”
For these reasons, the appeal was allowed, and permission granted for the petition to succeed. In a short dissenting opinion, Lord Woolman said that the petitioner’s case was “no more than stateable”, but did not elaborate further on account of his fellow judges taking a different view.
© Scottish Legal News Ltd 2021