Court of Appeal allows Home Office appeal over entry clearance ruling in Spence

The Court of Appeal has held that a First-tier Tribunal conclusion on the public interest in excluding a man convicted of a child sex offence was perverse, and remitted the case for a fresh decision.

Background

In The Entry Clearance Officer v Oniel Spence [2026] EWCA Civ 722, the Court of Appeal (Civil Division) gave judgment on 9 June 2026. Lord Justice Lewis gave the lead judgment, with Lord Justice Singh and Lady Justice Elisabeth Laing on the panel. Lady Justice Elisabeth Laing agreed with him. The hearing took place on 19 May 2026.

Mr Spence is a Jamaican national. His wife and 11-year-old daughter are British nationals and have always lived in the UK. He has never lived with them. He applied for entry clearance, and an entry clearance officer refused it because his exclusion was considered conducive to the public good, given his character, conduct and associations. He had been convicted in the United States of a sexual offence against a child and sentenced to three years' imprisonment.

The officer also concluded there were no exceptional circumstances that would make refusal a breach of Article 8 of the European Convention on Human Rights (respect for private and family life).

The question

The First-tier Tribunal allowed Mr Spence's appeal on 18 August 2024. It decided that refusal was not compatible with Article 8 because it did not consider his exclusion to be conducive to the public good. The Upper Tribunal dismissed the appeal against that decision. Of five grounds of appeal, the Court of Appeal said only one needed to be decided: whether the First-tier Tribunal's conclusion was inadequately reasoned and perverse.

The decision

The appeal was allowed. The case goes back to the First-tier Tribunal.

The reasoning

The court read the First-tier Tribunal's findings as meaning that Mr Spence had in the past pursued relationships with children and continued to have at least a degree of sexual attraction to children. The tribunal had found him "now primarily sexually attracted to adults" and doubted that he had truly addressed his attraction to children.

Given those findings, the court said the conclusion that there was no public interest in refusing entry clearance was "frankly perverse". It contradicted the tribunal's own assessment. Alternatively, the tribunal had given no adequate reason for it.

The court also dealt with a procedural point. The grounds of appeal to the Upper Tribunal did not expressly say the conclusion was perverse, but read fairly they argued that it was "at odds" with the tribunal's findings. The court therefore did not treat perversity as a new ground. Had it been new, the court said it would have allowed it to be raised, because it concerned the logic of the tribunal's own reasoning and needed no new evidence.

The First-tier Tribunal made no findings of fact on other relevant issues. It must now decide whether the public interest in excluding Mr Spence, based on his conduct and character, is outweighed by other circumstances that make refusal a disproportionate and unjustified interference with the right to respect for family life under Article 8.

Sources

• The Entry Clearance Officer v Oniel Spence [2026] EWCA Civ 722, Court of Appeal (Civil Division), 9 June 2026: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/722