Petition challenging refusal of two-month visitor visa for Pakistani woman succeeds in Outer House

About this case:

• Citation:
  [2022] CSOH 71
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Petitioner Ghulam Sughra argued that the Entry Clearance Officer acting for the Secretary of State for the Home Department had failed to consider reliable evidence relating to her home life in Pakistan from her sponsor, the mother-in-law of her son.

The petition was heard by Lord Ericht. S Winter, advocate, appeared for the petitioner and G Maciver, advocate, for the respondent.

Doubt as to relevance

In a decision letter dated 8 March 2022, the respondent’s Entry Clearance Officer stated that, while they were satisfied that the petitioner’s sponsor was in a position to pay for her maintenance and accommodation while in the UK, they were not satisfied that she intended to leave the UK on completion of the visit.

The reason for the ECO’s decision was explained as the documents the petitioner had submitted not adequately demonstrating that she was supported by her sons in her home country. In her statutory statement, the petitioner’s sponsor had described her as residing in her ancestral village in Pakistan and living a simple life supported by a large family, thus her personal needs were modest.

The decision letter further stated that, as the petitioner had declared she had no savings, properties or other income, she had no substantial ties outside the UK to ensure she would leave at the end of the proposed visit. The ECO therefore concluded that she was not genuinely seeking entry to the UK as a visitor.

Counsel for the petitioner submitted that the informed and substantial reader would be left in substantial doubt as to the relevance of the ECO not being satisfied that the petitioner had substantial ties in Pakistan when there were no challenges to the credibility or reliability of the sponsor, who demonstrated that the petitioner had substantial ties outside the UK in her statement.

For the respondent it was submitted that the sponsor’s statement had been accepted insofar as it related to matters connected to the sponsor, whereas for other matters the petitioner’s failure to adduce direct documentary evidence was considered more important. For matters which where other people’s direct business, the absence of direct material was more significant.

Entitled to a statement

In his decision, Lord Ericht observed: “The nub of the dispute between the parties was the following passage in the decision: ‘You state that you are retired and are supported by your sons in your home country, however the documents you have submitted do not demonstrate this’. The difficulty with that passage is that there was a document submitted by the petitioner which contained evidence of these matters, namely the statutory declaration by the sponsor.”

He continued: “The ECO does not explain why he has rejected the evidence in the statutory declaration as to the applicant’s family ties in Pakistan. That leaves us in real and substantial doubt as to the reason why the ECO has come to the decision which he did.”

Exploring potential reasons as to why the ECO might have reached the conclusion he did, he said: “Is the reason simply that he has not taken into account the evidence in the statutory declaration as to family ties to Pakistan? That is one possible interpretation. If so, it may be that that might found a challenge to his decision on the ground that he failed to take into account a material factor. I take no view as to whether such a challenge might succeed: the point is that as the petitioner does not know whether that is the reason, she cannot bring such a challenge.”

He went on to say: “We simply do know what the reason for rejecting the sponsor’s evidence was, and it is inappropriate for the court to speculate as to whether it was one of the reasons suggested above, or indeed some other reason.”

Lord Ericht concluded: “The petitioner is entitled to a clear statement of the reasons for rejection of the evidence. The evidence goes to the central issue which had to be decided by the ECO, which was whether the petitioner’s life and family ties in Pakistan were such that the petitioner would leave the UK at the end of the visit. Without a clear statement of the reasons, the petitioner is unable to properly assess whether she has any potential remedies against the substance of the decision.”

The plea of the petition was therefore granted and the decision of 8 March 2022 reduced.