KK (Under 12 Policy – in country implications)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 23 September 2004 |
| Neutral Citation | [2004] UKIAT 268 |
| Court | Immigration Appeals Tribunal |
| Date | 23 September 2004 |
[2004] UKIAT 268
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Vice President)
Miss J M Braybrook
Mr J. Jones, Home Office Presenting Officer, for the appellant; Mr I Thrilling, Legal representative of Nottingham Law Centre for the respondent (hereafter “the claimant”).
KK (Under 12 Policy — in country implications) Jamaica
The appellant, the Secretary of State, appeals against a determination of Adjudicator, Ms E. Dubicka, allowing the appeal of the claimant against a refusal to vary leave to remain in the UK.
The claimant arrived aged ten in the UK from Jamaica on 28 August 2000 as a visitor, to see his mother. He then made an in-time application for settlement as a dependant. She had indefinite leave to remain in the UK, granted in 1996 on the basis of marriage. The application was refused on 13 October 2001 under paragraph 300 (with reference to (i)(c) and (d) and paragraph 298 (with reference to (iv)).
The reasons for concluding that the mother had not shown sole responsibility for the claimant or that there were serious and compelling family or other considerations which made his exclusion from the UK undesirable were as follows: the claimant had lived with his grandmother in Jamaica since 1993 and there was no evidence to support a claim that she had been taken ill; there was no evidence that the claimant was in poor health or that his circumstances were unusually difficult; the evidence was that the claimant's mother had been happy to leave the claimant with the grandmother (her mother); the original evidence was that the claimant's father visited every fortnight and provided the financial support required; and that the sponsor was unemployed and had not shown she could accommodate and maintain the claimant without recourse to public funds.
The appeal notice to the Adjudicator raised Article 8 and also the Under 12 policy. It is a matter of some concern that despite being lodged on 23 October 2001 the appeal was not forwarded to the IAA until 3 February 2003, over two years three months later.
The Adjudicator found the sponsor credible.
In consequence she concluded that the claimant met the sole responsibility requirement, at the date of decision. Her assessment was that by that time the grandmother had relinquished responsibility and the father had taken no real responsibility for his son. We consider that this was a sustainable decision.
The Adjudicator further concluded that the accommodation requirement was met.
However she found (and indeed this was conceded by the claimant's representative) that the claimant did not meet the maintenance requirement under paragraph 298(v) of HC 395.
The reason why the Adjudicator did not accordingly dismiss the appeal was that she considered that “my jurisdiction in respect of a s.61 appeal is to allow an appeal if I consider the decision or action concerned was not in accordance with the law or with any Immigration Rules applicable to the case : s.21 Sch 4 of Part III of the 1999 Act.”
She did not consider that the decision was “in accordance with the law” in the light of the Court of Appeal judgment in D S Abdi Imm AR [1996] 148, which required the Secretary of State to apply in relevant cases applicable Home Office policy. In this case, despite the Under 12 Policy being raised by the claimant's representatives, the Secretary of State had refused to consider the claimant's position by reference to this policy. Although the Secretary of State had sought to justify this refusal in terms of it being a policy applied in entry clearance cases, in fact the policy could not be so confined. She stated:
“There existed at the date of decision the ‘Under Twelve’ policy which only required the adequate accommodation criteria to be met. The sole responsibility test does not apply. In the first paragraph it relates to entry clearance decision. However, there is a reference to waiver of an entry clearance requirement which at least suggests the policy might be considered in-country. It is ambiguous, not least as there is no overriding entry clearance requirement in country, except where there was perhaps no extant leave at date of application.”
The Adjudicator went on to allow the appeal “to the extent of remittal for reconsideration only, on this ground.”
She also allowed the appeal on Article 8 ECHR grounds. Her reasons for doing so were that she did not consider it was (within the meaning of Article 8(2)) “in accordance with the law” and secondly she considered that the decision constituted a disproportionate interference with the right to respect for family life.
The grounds of appeal challenge both the Adjudicator's conclusion that the decision was not “in accordance with the law” (under Sch 4 of the 1999 Act) and her conclusion that the decision was contrary to the claimant's Article 8 ECHR rights.
We shall deal first of all with the D.S. Abdi point. The ‘Under Twelve Concession’, the grounds submitted, has only ever applied to entry clearance cases and so it was incorrect of the Adjudicator to find this claim was submitted ‘belatedly’ at the hearing.
At the hearing Mr Jones was not able to give us chapter and verse on the history of the Under 12 concession. However, he did undertake to furnish a written statement from the Home Office concerning whether or not the Under 12 Concession had been applied in practice to “in-country' applications. Mr Jones duly forwarded a letter from Mr Paul Summer of the Home Office IND Policy Directorate attaching guidance notes on the Under 12 Concession.
In this letter it we noted that the concession was withdrawn with Ministerial consent of 29 March 2003. Since the decision in this case was made on 13 October 2001 when this policy still existed, its further details are relevant to this case.
The letter identified the relevant guidance for entry clearance officers as being given in DSP Vol 1 Ch 14.16 and the relevant guidance for in-country caseworkers as being in the Immigration Directors Instructions (IDIs) at Ch 8 Family Members in Annex M.
It is perhaps best if we set out the full text of the relevant IDIs.
‘12. The Under 12 Concession
Where an application is made for a child under the age of 12 to join a single parent in the United Kingdom but the provisions of paragraphs 297–313 of HC 395 are not satisfied, an entry clearance for settlement may nevertheless be granted, on a concessionary basis, provided that:
There is adequate accommodation
The “Sole responsibility” test, outlined in paragraph 5 above, should not be applied.
Although this concession does not imply a waiver of the entry clearance requirement, it should always be borne in mind when dealing with cases involving children in this age a group.
12.1 Circumstances where the concession should be withheld.
If the above requirements are met, it will be appropriate in most case to apply the concession. In the following circumstances, however, it may be appropriate to withhold the concession:
• where there is professionally confirmed evidence that the parent in this country is so severely handicapped as to be incapable of properly caring for the child;
• where there are one or more siblings of a higher age (see below); or
• where the child's mother is polygamously married to his father and she does not qualify to come here either as a polygamous wife under the Immigration Act 1988 or the Immigration Rules or in her own right in another capacity.
12.1 Applications involving both over and under 12
The application of the concession may give rise to difficulty where there are, in the family, children both over and under the age of 12. It is not possible to lay down rules for all cases, but the principle underlying any decision should be to preserve the unity of families and for this reason, the children of a family should be considered as a group.
Where the application of the concession would result in the admission of one or more young children and the exclusion of one or more older children, it will be necessary to consider the consequences of splitting the group. If the group is well established in its present home and it would cause no hardship to them to be excluded from the United Kingdom, the right course might be not to admit any of them, including those under 12.
If the circumstances are such that the normal application of the under 12 concession seems right for the younger children, it will be necessary to consider whether the circumstances justify admitting older children under 18.
The decision can only relate to the particular circumstances of each case, but the following considerations will be relevant:
• the numbers of children on either side of the dividing line (it would not be right, for example, to allow a number of children of working age, or approaching it, to...
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