Man unlawfully denied spouse visa wins appeal too late

“Although I have considerable sympathy for Mr Tomlinson, we are unable to wind back the clock so as to put right the historic injustice”.

This quote perfectly summarises the bittersweet victory for the appellant in the recent Court of Appeal case of R (Tomlinson) v Secretary of State for the Home Department [2025] EWCA Civ. Mr Tomlinson won his appeal against refusal of entry clearance as a spouse, but by the time of the decision his wife had very sadly died. 

The decision is a good reminder that parties will normally be bound by findings in law made by a previous tribunal, unless circumstances substantially change.

Background

The appellant, a Jamaican national, came to the UK in 2000 on a visitor visa. He subsequently overstayed and in 2011 was convicted to five years in prison. He was deported to Jamaica in 2016.

The appellant later married a British national in Jamaica in 2019 who suffered from serious health issues. The couple lived in France but the appellant’s wife was receiving medical treatment in the UK. In 2020, the appellant applied to enter the UK with his wife so she could receive treatment. The covering letter “emphasised that Mrs Tomlinson required the support of Mr Tomlinson’s presence, and that her deteriorating health meant that she could not remain in France”.

This was refused by the Home Office on the basis of the existing deportation order. That decision was appealed and in 2022 the First-tier Tribunal allowed the appeal under article 8, on the basis of the appellant’s relationship with his wife and her needing medical treatment in the UK. The Home Office revoked the deportation order in June 2023 and advised the appellant that he would need to obtain a visa before come to the UK.

The appellant applied for entry clearance as a spouse in July 2023 and this was refused by the Home Office in August 2023 on suitability grounds, because of the same criminal conviction which was the basis of the deportation order. The entry clearance refusal did not mention the First-tier Tribunal decision at all.

Judicial review proceedings were brought by the appellant in November 2023. The case was dismissed by the Upper Tribunal. The appellant proceeded to the Court of Appeal.

Requiring the appellant to apply for entry clearance after revoking deportation not unlawful

The first ground argued by the appellant in the Court of Appeal was that, in essence, he should not have had to apply for entry clearance at all. It was argued that, following the revocation of deportation, he should have been granted permission to enter by the Home Office based on the initial entry clearance request made in 2020.

The court found that it was not unlawful for the Home Office to require the appellant to submit a fresh application to be granted entry, noting that revocation of deportation order is a distinct process from granting someone entry clearance. The court noted that the two processes have different legal basis and that entry clearance has conditions (such as duration, access to public funds etc) that the Home Office will still need to determine after revoking a deportation order.

Home Office bound by tribunal’s findings in law if circumstances unchanged

The appellant then argued that the Home Office failed to give effect to the First-tier Tribunal decision by refusing him entry clearance on the basis of his earlier criminal conviction. The Court of Appeal agreed.

The court followed the earlier cases of Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 and Al-Siri v Secretary of State for the Home Department [2021] EWCA Civ 113. These cases established that the Home Office is bound by findings of law made by an immigration tribunal, unless there a significant change in circumstances (such as fresh evidence which was not available during the earlier appeal becoming available or where there is a change in law).

Importantly, the court noted that it does not matter whether the tribunal’s determination related to a different kind of decision from the one in dispute (in this case revocation of a deportation order and whether to grant entry clearance). If a finding in law was made by a tribunal and there is no significant change in circumstances, it stands.

The court also noted that there is a distinction between findings in law and findings of facts. For findings in fact, the well known guidance set out in Devaseelan apply, meaning that the findings of the earlier tribunal will be the starting point for any future decisions. However, in relation to findings in law, the court reiterated that the principle of finality applies to the immigration context, meaning that once a tribunal has settled a legal question the Home Office will be bound by it unless something significant changes.

In the appellant’s case, the court found that the Home Office was not entitled to make the decision it did, namely refusing entry clearance on the same basis as the deportation order which was later revoked. The First-tier Tribunal had found that, even when considering of his earlier conviction, the appellant’s article 8 rights were being breached by precluding him from being in the UK with his very ill wife.

As the circumstances were the same when the appellant applied for entry clearance, the Home Office was bound by that finding. The decision to refuse his application based on the same earlier conviction was therefore found to be unlawful.

The court also found that the right of appeal to the First-tier Tribunal in relation to the refusal of entry clearance was not an adequate alternative remedy in this case. This was on the basis that the entry clearance refusal was unreasonable and that, in any event, the tribunal would have been bound by its earlier finding and the whole case would have been treated as already settled.

Sadly, the appellant’s wife died in November 2024 shortly after giving birth to their child. This means that the appellant will not be granted entry to the UK as a spouse, despite this positive decision. The court, while recognising that the family faced a great deal of injustice, refused to make an order granting the appellant entry on the basis that it had no power to do so.

Conclusion

From a legal perspective, this case is a good reminder of the fact that the Home Office is bound by previous findings of an immigration tribunal in subsequent decisions. From a human point of view, however, this case is the perfect example of what harm delays and poor decisions can cause to people dealing with the immigration system in the UK. Mr Tomlinson should have been granted permission to enter in 2023 to join his wife and he was not, with tragic consequences for this family.