Perversity Where a Tribunal’s “Conducive to the Public Good” Conclusion Contradicts Its Own Findings

1. Introduction

Entry Clearance Officer v Spence [2026] EWCA Civ 722 is a Court of Appeal decision on the limits of fact-finding and reasoning in human-rights entry clearance appeals, particularly where refusal is said to be justified because the applicant’s character, conduct or associations make exclusion “conducive to the public good” under Appendix FM.

The respondent (a Jamaican national) sought entry clearance to join his British spouse and British child in the UK. The application was refused by an Entry Clearance Officer on the basis that exclusion was conducive to the public good under Appendix FM (then paragraph S-EC.1.5) because of an overseas conviction for a serious sexual offence against a child. The First-tier Tribunal (“F-tT”) allowed the appeal, concluding that exclusion was not conducive to the public good and that refusal therefore breached Article 8 ECHR. The Upper Tribunal (“UT”) upheld the F-tT. The Secretary of State appealed.

The Court of Appeal allowed the appeal on a single decisive ground: the F-tT’s ultimate conclusion was perverse (or, alternatively, inadequately reasoned) because it contradicted the F-tT’s own findings about the respondent’s past and continuing sexual attraction to children. The case was remitted to the F-tT for a fresh assessment.

Key issues

  • Reasons/perversity: when does a tribunal’s conclusion become legally unsustainable because it is illogical or self-contradictory?
  • Grounds of appeal discipline: whether “perversity” was sufficiently raised before the UT, and the approach to new points on appeal.
  • Wider (unresolved) issue flagged: whether, on a human-rights appeal, the F-tT should decide “for itself” if exclusion is conducive to the public good, or whether that is primarily for the Secretary of State (raised but not determined).

2. Summary of the Judgment

The Court of Appeal (Lewis LJ; Singh LJ and Elisabeth Laing LJ concurring) held that:

  • The F-tT found (i) past sexual attraction to children and pursuit of relationships with children, and (ii) doubts that the respondent had truly addressed that attraction, and (iii) that he was “now primarily sexually attracted to adults” (implying residual attraction to children).
  • Given those findings, the F-tT’s conclusion that exclusion was not conducive to the public good (and thus not undesirable) was perverse, or at least unsupported by adequate reasoning.
  • This was not appellate “fact re-weighing” contrary to the restraint described in AH (Sudan) v Secretary of State for the Home Department and MA (Somalia) v Secretary of State for the Home Department; rather, it was correction of a self-contradictory reasoning process.
  • The perversity/illogicality point was, fairly read, raised before the UT; in any event, the Court would have permitted it to be advanced because it required no new evidence and caused no procedural unfairness.
  • The appeal was allowed and remitted to the F-tT for determination of whether the public interest in exclusion (on the basis of character/conduct) is outweighed by other circumstances such that refusal is disproportionate under Article 8.

3. Analysis

3.1 Legal framework applied

Entry clearance, the Immigration Rules, and “conducive to the public good”

  • Entry to the UK generally requires leave: Immigration Act 1971, s.3(1).
  • Family life entry clearance is governed by Appendix FM.
  • At the material time, suitability for entry clearance was addressed in Appendix FM, section S-EC.
  • The refusal was under S-EC.1.5: exclusion conducive to the public good because (for example) conduct/character/associations make entry undesirable.

Appeals structure and Article 8

  • Right of appeal against refusal of a human rights claim: Nationality, Asylum and Immigration Act 2002, s.82(1)(b).
  • Ground: the decision is unlawful under Human Rights Act 1998, s.6 (incompatibility with a Convention right): 2002 Act, s.84(2).
  • Article 8 ECHR: interference must pursue a legitimate aim and be proportionate.
  • Part 5A (including s.117A) frames Article 8 determinations, though the Court’s reasoning here turned on reasoning/perversity rather than a full Part 5A analysis.

3.2 Precedents cited and their influence

AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 676

Cited for the proposition that appellate courts should show restraint in interfering with specialist tribunal fact-finding and evaluative judgments. The respondent relied on this to argue the Secretary of State’s appeal was merely disagreement on weight.

The Court of Appeal distinguished this: it did not substitute its own evaluation; it identified that the F-tT’s conclusion contradicted its own premises (a classic form of irrationality/perversity rather than a permissible evaluative difference).

MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49

Similarly invoked for deference to specialist tribunals and caution against “re-trying” appeals. Again, the Court treated the case as outside that category because the defect was logical incoherence: the tribunal’s reasons could not support its own endpoint.

Secretary of State for the Home Department v OSB [2026] EWCA Civ 647

Used for two connected procedural points:

  • Parties should identify issues for decision (though this case was not ultimately about issue-identification but about reasoning).
  • Grounds of appeal should be “concise and specific”, including on appeal to the Court of Appeal (relevant to whether the perversity challenge was properly articulated).

Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829; [2025] 1 WLR 4368

Cited for the Court’s discretion to allow a new point of law to be raised on appeal, and the cautionary limits (e.g., new evidence, procedural unfairness, different conduct below, or detrimental reliance).

Singh v Dass [2019] EWCA Civ 360

Cited (via Ahmad and OSB) for the governing approach to new points on appeal: the Court’s discretion is exercised cautiously, especially where the new point would have affected the way the case was run below.

3.3 Legal reasoning: why the F-tT’s conclusion was “perverse”

The Court’s reasoning is tightly focused on internal contradiction:

  1. Premise 1 (past risk-relevant conduct): the F-tT found the respondent had been sexually attracted to children and had pursued relationships with children (based on the relationship with a minor and the conviction for a serious child sexual offence).
  2. Premise 2 (present residual concern): the F-tT doubted the respondent had “truly addressed” his sexual attraction to children, noting attempts to downplay the offending and lack of candour.
  3. Premise 3 (implication of “primarily”): the finding that he was “now primarily sexually attracted to adults” logically implied that some attraction to children remained.
  4. Conclusion reached by the F-tT: despite those premises, the F-tT concluded it was not conducive to the public good to exclude him, and that his conduct/character did not make entry undesirable.

For the Court, that conclusion “runs counter to and contradicts” the F-tT’s own assessment; it therefore crossed the high threshold of perversity (or, framed differently, the F-tT gave no adequate reason why its own adverse premises did not translate into a public-interest justification for refusal under S-EC.1.5).

Importantly, the Court did not decide that the F-tT was bound to refuse the appeal. Rather, it held the F-tT could not rationally eliminate the public-interest side of the proportionality balance given its findings; the case therefore required remittal for a lawful Article 8 proportionality assessment in which the public interest is properly recognised and weighed against family life factors.

3.4 Grounds of appeal and “perversity” as an issue

The respondent argued perversity was not properly raised before the UT. The Court held:

  • Although not labelled “perversity”, the UT grounds contended the conclusion was “at odds” with findings in paragraphs 13–14, which in substance alleged illogicality/perversity.
  • Even if new, the Court would have permitted it: it involved analysis of the F-tT’s reasoning, required no new evidence, did not alter how the hearing would have been conducted, and caused no unfairness.

3.5 Impact

(a) Reinforcing the discipline of reasons in S-EC.1.5 / “undesirable” cases

This decision underscores that where the tribunal finds risk-relevant features going to conduct/character (especially involving sexual offending against children), it cannot rationally conclude there is no public interest in exclusion without a coherent explanation. Tribunals must articulate how adverse findings translate (or do not translate) into “conducive to the public good” and, if proceeding to Article 8, how the public interest is weighed.

(b) The proper role of appellate restraint

The judgment illustrates a boundary: AH (Sudan) and MA (Somalia) protect evaluative findings from routine appellate interference, but they do not insulate decisions whose reasoning is internally inconsistent or whose conclusion cannot logically follow from the findings made.

(c) Drafting and interpretation of grounds of appeal

The Court’s approach encourages clarity (“concise and specific” grounds) but also indicates that courts will look to substance rather than labels. Allegations that an outcome is “at odds” with findings may be treated as a perversity/irrationality challenge.

(d) A flagged constitutional question (not decided)

Elisabeth Laing LJ expressed a provisional view (without argument) that the primary assessment of “conducive to the public good” is, constitutionally, for the Secretary of State, and that on a human-rights appeal the F-tT’s function is to decide lawfulness under HRA s.6 through an orthodox Article 8 analysis, rather than “stepping into the shoes” of the executive. Singh LJ preferred not to express even a provisional view given the issue was not argued. The point is therefore open, but practitioners should note the Court has signposted potential future scrutiny of the “conduciveness-as-decisive” approach in such appeals.

4. Complex concepts simplified

  • “Conducive to the public good” (Appendix FM S-EC.1.5): a broad public-interest test allowing refusal where the person’s conduct/character/associations make their entry undesirable, even if they do not fall within specified conviction-duration “automatic” refusal categories.
  • Perversity / irrationality: a very high threshold. It is not “the appellate court would have decided differently”. It is where the decision cannot logically be supported by the findings made, or is internally contradictory, or no reasonable tribunal could have reached it on those findings.
  • Article 8 proportionality: even where refusal pursues a legitimate aim (e.g., immigration control/public protection), the tribunal must weigh that aim against the real-world impact on family life to decide whether refusal is justified and proportionate.
  • Remittal: when an appellate court sets aside a decision but the necessary factual findings for re-making are missing or incomplete, it sends the case back to the F-tT to decide again in line with the appellate court’s legal guidance.

5. Conclusion

[2026] EWCA Civ 722 stands as a clear reminder that tribunal decisions in Article 8 entry-clearance appeals must be logically coherent: where a tribunal finds past and continuing risk-relevant features of conduct/character, it cannot—without adequate reasons—conclude that exclusion is not conducive to the public good. The Court of Appeal treated the defect as perversity (or inadequate reasoning), distinguished it from mere disagreement over evaluative fact-finding, and remitted the case for a lawful proportionality assessment.