In November 2011 Gherson represented a citizen of the Russian Federation in a successful appeal to the Upper Tier Tribunal (Immigration and Asylum Chamber) against the entry clearance officer, Moscow.
The appeal was against the refusal of a family visit visa to allow a father to join his wife and son in the UK. The visa was refused on the grounds of deception; the applicant had not disclosed in an earlier application for a visit visa to the UK that he had previously been refused a visit visa to another country in the EU.
On the earlier application form he declared that he had never been refused a visa.
The relevant immigration rule, paragraph 320(7B)(d), states that where deception is used in an application for entry clearance, leave to enter or remain this is a mandatory ground for refusal of an application for entry clearance or leave to enter. It can lead to a 10-year ban from the UK.
The appellant denied that he had ever been refused a visa by the relevant authorities, or if he had he was not aware of it.
It was agreed that the judge in the First Tier Tribunal made an error in finding that the appellant had to show he had made an honest mistake when in law the burden is on the entry clearance officer to establish whether deception had been used.
It was for the entry clearance officer to show that there had in fact been a visa refusal. They are required to provide good strong evidence of deception to meet the standard of proof: balance of probabilities.
The appellant and his business assistant gave evidence by video link from Moscow.
The judge decided that the information provided by the Home Office (a “documentation verification report”) to show the relevant authorities had refused a visa previously did not give adequate detail to establish the fact of the refusal or an inference that the appellant had been guilty of deception in not disclosing it.
Counsel instructed by Gherson had argued on behalf of the appellant that the ECO is bound by the duty of fairness, and that this duty includes giving an applicant notice of any concern the ECO has about the application so that the applicant can set that concern to rest.
The court did not lay down a prescription of what exactly would be needed in every case, but made it clear that at the very least a decision to refuse under paragraph 320(7B)(d) “should give enough details and sources for an appellant to make his own inquiries, without further application to the entry clearance officer; and for the Tribunal to consider it with the degree of independent care required by NA.