The Court of Appeal (CoA) heard a case relating to a denial of entry based on a former conviction while the British wife of the applicant was receiving medical treatment. The question was whether the refusal infringed her Article 8 rights.
Background:
Mr. Tomlinson was born in 1982 and is a Jamaican national. He first came to the UK in 2000 on a visitor’s visa. His subsequent application for a student visa was refused, and he remained without leave. Between 2005 and 2011, Mr. Tomlinson fathered three children, with whom he has limited contact.
In November 2011, Mr. Tomlinson was convicted of possessing an automatic weapon, for which he received a five-year sentence. A deportation order was signed in January 2014, against which Mr. Tomlinson appealed unsuccessfully. He was deported to Jamaica in March 2016.
He began his relationship with Mrs. Tomlinson while he was still in the UK. They were married in June 2018 in Jamaica, and she moved to France before returning to the UK for medical reasons.
On 4 July 2020, Mr. and Mrs. Tomlinson both attempted to travel from France to a hospital appointment in London, apparently in the belief that the deportation order was no longer in effect. Mr. Tomlinson was denied entry. He requested a review.
The Secretary of State (SSHD) refused to revoke the deportation order but Mr. Tomlinson's appeal on human rights grounds succeeded in the First-tier Tribunal (FTT), following which the deportation order was revoked. However, entry clearance was not provided, and Mr. Tomlinson was told that he still needed to apply for it. His application was refused due to his prior conviction in August 2023 under rule S-EC.1.4(a) of Appendix FM. Mr. Tomlinson sought judicial review on grounds of abuse of process and on the basis that the denial of entry clearance was, in any event, unlawful or irrational. The Upper Tribunal (UT) refused his application in July 2024, and he appealed to the CoA.
Mrs. Tomlinson died in November 2024, shortly after having given birth to a son.
Decision:
The CoA allowed the appeal and quashed the decision on the basis that Mrs. Tomlinson's Article 8 rights precluded reliance on Mr. Tomlinson's conviction to deny a right of entry under rule S-EC.1.4(a) of Appendix FM. Indeed, Mrs. Tomlinson’s Article 8 rights were infringed by not being permitted to have the support of the physical presence of Mr. Tomlinson during her illness. “Given the conclusion that Mrs. Tomlinson could not be expected to relocate to France, that necessarily involved Mr. Tomlinson being allowed to enter the United Kingdom to be with his wife,” the 2023 refusal of entry clearance was unlawful, as it was in breach of the FTT’s decision.
The Court noted that “If principles of res judicata are applied by analogy, the question whether Article 8 rights are infringed is an issue that must necessarily be determined both to reach a conclusion about whether to revoke the deportation order and to decide whether to grant entry clearance.”
Implications:
This decision makes it clear that Article 8 rights outweigh the public interest in excluding someone with a former conviction. However, any relevant change in circumstances or fresh evidence could justify a reassessment, although this was not applicable in this case.
Moreover, if there is a decision revoking a deportation order, then the SSHD cannot then rely on the same conviction – which forms the basis of the deportation order – to refuse the entry clearance.
