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Entry Clearance Officer v Spence
Factual and Procedural Background
The Appellant refused the Respondent entry clearance to the United Kingdom on suitability grounds (paragraph S-EC.1.5 of Appendix FM) after the Respondent, a national of Jamaica, disclosed a 2008 conviction in the United States for a sexual offence against a child and a three-year sentence, of which 18 months were served, followed by deportation. The Respondent is married to a British national and has a British child; the Respondent has not lived in the United Kingdom.
The Respondent's entry clearance application (including a human rights claim under Article 8) was refused. On appeal the First-tier Tribunal allowed the human rights appeal, concluding that exclusion of the Respondent from the United Kingdom would not be conducive to the public good. The Appellant appealed to the Upper Tribunal, which dismissed the appeal. The Appellant obtained permission to appeal to the Court of Appeal. The Court of Appeal considered five grounds but dealt only with ground 4: that the First-tier Tribunal's ultimate conclusion was inadequately reasoned and perverse. The Court of Appeal allowed the appeal and remitted the matter to the First-tier Tribunal for further determination.
Legal Issues Presented
- Whether the First-tier Tribunal's conclusion that exclusion of the Respondent would not be conducive to the public good was perverse or inadequately reasoned given its findings about the Respondent's past and residual sexual attraction to children.
Arguments of the Parties
Appellant's Arguments
- The First-tier Tribunal found that the Respondent had been sexually attracted to children and had pursued relationships with children, and expressed doubts about whether he had addressed that attraction; yet it concluded exclusion was not conducive to the public good—this was perverse or inadequately reasoned.
- The First-tier Tribunal's own findings (paragraphs 13–15) were inconsistent with its ultimate conclusion and lacked adequate explanation for why those findings did not justify exclusion under S-EC.1.5.
Respondent's Arguments
- Appellate courts should show deference to findings of expert tribunals (First-tier and Upper Tribunal) and should not overturn factual conclusions or reasoning simply because they might have reached a different view; misdirection in law must be established before intervention.
- Counsel relied on authority establishing appellate caution and respect for tribunal fact-finding and assessments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 676 | Principle of appellate caution and respect for tribunal fact-finding; limits on appellate interference with expert tribunals. | Relied on by the Respondent to argue against appellate substitution of conclusions; the Court considered it but held the First-tier Tribunal's reasoning was internally contradictory in this case. |
| MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 | Further guidance on appellate approach to tribunal findings and the need for caution before interference. | Considered alongside AH (Sudan); Court held that the present case showed self-contradiction rather than mere disagreement with the tribunal's assessment. |
| Secretary of State for the Home Department v OSB [2026] EWCA Civ 647 | Requirements for clear identification of issues before the First-tier Tribunal and appellate grounds being concise and specific. | Used to assess whether the perversity ground was new on appeal and whether it had been adequately raised below; Court found the ground was in substance raised to the Upper Tribunal. |
| Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829; [2025] 1 WLR 4368 | Standards for allowing new points of law on appeal to this Court; discretion factors (need for new evidence, prejudice, fairness). | Applied to determine that, even if perversity had not been expressly pleaded to the Upper Tribunal, the Court would permit the point because it required no new evidence and caused no unfairness. |
| Singh v Dass [2019] EWCA Civ 360 | Approach to allowing new grounds and appellate discretion; factors to consider. | Relied upon for the test governing whether a new point may be taken on appeal to this Court; supported the Court's decision to permit consideration of perversity. |
Court's Reasoning and Analysis
The Court examined the First-tier Tribunal's findings and reasoning as a whole. The First-tier Tribunal found (i) that the Respondent had been sexually attracted to children and had pursued relationships with children, (ii) that there were doubts about his candour and whether he had addressed that attraction, and (iii) that the risk of re-offending was negligible and that he was "now primarily sexually attracted to adults". The Court reasoned that the logical reading of those findings is that the Respondent retained at least a residual sexual attraction to children.
Given that assessment, the Court concluded that the First-tier Tribunal's ultimate finding—that exclusion would not be conducive to the public good—was self-contradictory and therefore perverse or inadequately reasoned. The Court rejected the submission that this was merely a case of appellate disagreement with tribunal fact-finding: the internal inconsistency in the First-tier Tribunal's own findings made its conclusion untenable.
The Court considered whether the perversity ground had been raised below or whether permission was required to introduce it. Applying authorities on appellate discretion, the Court found the substance of the ground had been presented to the Upper Tribunal and, in any event, that the Court would have granted permission because the issue involved analysis of the First-tier Tribunal's reasoning, required no new evidence, and would cause no unfairness.
The Court therefore allowed the appeal and remitted the case to the First-tier Tribunal to determine, with fuller reasoning, whether the public interest in exclusion (based on the Respondent's conduct and character) is outweighed by other circumstances such that refusal of entry clearance would be a disproportionate interference with Article 8 rights.
Judge Lewis gave the leading judgment. Judge Laing and Judge Singh agreed. Judge Laing added a provisional observation (not decided) about the constitutional role of the Secretary of State in primary assessments of conduciveness to the public good and cautioned about the First-tier Tribunal stepping into that role, but she did not decide that issue on the appeal.
Holding and Implications
APPEAL ALLOWED
Direct effect: The Court allowed the Appellant's appeal and remitted the matter to the First-tier Tribunal for reconsideration consistent with the Court's analysis; the First-tier Tribunal must address whether the public interest in excluding the Respondent (given his past and residual sexual attraction to children) is outweighed by other circumstances under Article 8.
Broader implications: The Court's decision does not establish a new general precedent beyond the application here; it emphasizes that a tribunal's reasoning must be internally coherent and that apparent self-contradiction can justify appellate intervention. A separate provisional observation by Judge Laing about the proper institutional roles in assessments under the Immigration Rules was not decided and remains open.
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