SD (British Citizen Children – Entry Clearance) Sri Lanka
| Jurisdiction | UK Non-devolved |
| Judge | Rimington,Lane J,Storey |
| Judgment Date | 23 January 2020 |
| Neutral Citation | [2020] UKUT 43 (IAC) |
| Date | 23 January 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 43 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President), Rimington and Storey UTJJ
Mr P Lewis instructed by Mylvagananam Manicavasagar, for the Claimant;
Mr T Lindsay, Home Office Presenting Officer, for the Entry Clearance Officer.
A (Children), In the matter of [2013] UKSC 60; [2014] AC 1; [2013] 3 WLR 761; [2014] 1 All ER 827
Ahmut v Netherlands 1996 ECHR 21702/93, ECtHR; (1997) 24 EHRR 62
Boultif v Switzerland 2001 ECHR 54273/00; (2001) 33 EHRR 50
Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (Case C-133/15); [2018] QB 103; [2017] 3 WLR 1326; [2017] 3 CMLR 35; [2017] Imm AR 1387; [2017] INLR 708
Dereci and Others v Bundesministerium für Inneres (Case C-256/11); [2012] All ER (EC) 373; [2012] 1 CMLR 45; [2012] Imm AR 230; [2012] INLR 151
Genovese v Malta 2011 ECHR 53124/09; (2014) 58 EHRR 25
Gül v Switzerland 1996 ECHR 23218/94, ECtHR; (1996) 22 EHRR 93
Jeunesse v Netherlands 2014 ECHR 12738/10; (2015) 60 EHRR 17
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
Lounes v Secretary of State for the Home Department (Case C-165/16); [2018] QB 1060; [2018] 3 WLR 375; [2018] 2 CMLR 9; [2018] Imm AR 502; [2018] INLR 62
MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 380 (IAC); [2013] Imm AR 1142
Mercredi v Chaffe (Case C-497/10 PPU); [2012] Fam 22; [2011] 3 WLR 1229
Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC); [2014] INLR 36
Nottebohm Case (Liechtenstein v Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955: ICJ Reports 1955, p.4; General List, No. 18
Patel v Secretary of State for the Home Department; Secretary of State for the Home Department v Shah[2019] UKSC 59; [2020] 1 WLR 228; [2020] Imm AR 600
Perez v Brownell 356 US 44 (1958)
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591; [2015] 3 All ER 1015; [2015] 2 CMLR 49; [2015] Imm AR 950; [2015] INLR 593
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453; [2008] 3 WLR 955; [2008] 4 All ER 1055
R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73; [2019] AC 845; [2017] 3 WLR 1486; [2018] 2 All ER 1; [2018] 2 CMLR 11
R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56; [2017] AC 365; [2016] 3 WLR 1267; [2017] 4 All ER 91; [2017] Imm AR 306; [2017] INLR 235
R (on the application of MM (Lebanon), AM (Pakistan) & SI (Pakistan)) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 WLR 1073; [2014] Imm AR 1207; [2015] INLR 22
R (on the application of MM (Lebanon), Majid (Pakistan), AF and Javed (Pakistan)) v Secretary of State for the Home Department; SS (Congo) v Entry Clearance Officer, Nairobi[2017] UKSC 10; [2017] 1 WLR 771; [2017] Imm AR 729; [2017] INLR 575
R (on the application of Project for the Registration of Children as British Citizens & Others) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin)
SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9; [2018] 1 WLR 1035; [2018] 3 All ER 177; [2018] INLR 368
Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393; [2018] 1 WLR 533; [2018] 2 All ER 156; [2018] Imm AR 319
Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62; [2014] AC 253; [2013] 3 WLR 1006; [2014] 1 All ER 356; [2014] Imm AR 229; [2014] INLR 131
Sen v Netherlands 2001 ECHR 31465/96; (2003) 36 EHRR 7
T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 483 (IAC); [2012] Imm AR 346; [2012] INLR 359
Üner v Netherlands 2006 ECHR 46410/99; (2007) 45 EHRR 14; [2007] Imm AR 303; [2007] INLR 273
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
Zambrano v Office national de l'emploi (Case C-34/09); [2012] QB 265; [2012] 2 WLR 886; [2011] All ER (EC) 491; [2011] 2 CMLR 46; [2011] Imm AR 521; [2011] INLR 481
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690; [2014] 1 All ER 638; [2014] Imm AR 479; [2014] INLR 262
Border, Citizenship and Immigration Act 2009, section 55
European Convenlton on Human Rights, Article 8
Immigration Rules HC 395 (as amended), sections E-ECP. 1-3.4, E-ECPT.2.2(c), E-LTRPT.2.2, EX.1, GEN. 1.3(c), GEN 3.1-3.3 & R-LTRPT 1.1 of Appendix FM and section 21A(2) & (8) of Appendix FM-SE
Nationality, Immigration and Asylum Act 2002, sections 117B(6) & 117D(1)
Refugee Convention 1951, Article 1A(2)
Treaty of the European Union, Article 9
Treaty on the Functioning of the European Union, Articles 20 & 21
Human rights — Article 8 of the ECHR — family life — best interests of the child — proportionality — immigration — citizenship — British citizen children — leave to enter — family members — Appendix FM to the Immigration Rules — financial requirements — exceptional circumstances
The Claimant, a citizen of Sri Lanka, married a British citizen (“the sponsor”) in 2011. The couple lived together in Sri Lanka until 2017 when the sponsor returned to the United Kingdom. They had two children born in 2013 and 2015. The children were British citizens and resided with the Claimant in Sri Lanka. In June 2017, the Claimant applied for entry clearance as a spouse under Appendix FM to the Immigration Rules HC 395 (as amended). The Entry Clearance Officer (“ECO”) refused the application on the grounds that the Claimant did not meet the eligibility financial requirements under paragraph E-ECP.3.1. to 3.4 of Appendix FM and there were no exceptional circumstances to qualify under the five or ten year partner routes under Appendix FM. The Claimant's appeal against that decision was dismissed by the First-tier Tribunal (“FtT”) in September 2018. In July 2019, the Upper Tribunal set aside the FtT's decision for material error of law, finding that, in assessing the Claimant's circumstances under Article 8 of the ECHR, the FtT had failed to have regard to the British nationality of the two children.
Before the Upper Tribunal, the Claimant accepted that she did not meet the provisions of Appendix FM, but maintained that, in assessing the proportionality of the ECO refusal, that was not a determinative factor. She submitted that the refusal decision effectively prevented her two British citizen children from living in the United Kingdom and thus engaged Article 8 in and of itself. Whilst the children were not deprived of their British citizenship, the decision robbed them, in practical terms, of the opportunity to exercise their rights as British citizens, namely their right of abode and all its concomitant rights. Accordingly, their status as British citizens should be treated as a “powerful factor” in the assessment of proportionality outside the Rules and accorded “substantial weight”. She also submitted that, whilst parents of British citizen children outside the United Kingdom did not have the benefit of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), that provision was still pertinent since it reflected a policy of Parliament that, save in cases involving criminality or poor immigration history, British citizen children should not be forced to choose between living in the United Kingdom and living with their parents. Moreover, it would be unjust to put her in a worse position because she applied for entry clearance from abroad, rather than entering illegally and then making an in-country application under section 117B(6). Finally, the Claimant submitted that, although the sponsor was no longer in work due to mental health problems, she had an offer of employment as a nurse in the United Kingdom and would now be able to meet the financial requirements under the Rules.
Held, dismissing the appeal:
(1) British citizenship was a relevant factor when assessing the best interests of the child. British citizenship included the opportunities for children to live in the United Kingdom, receive free education, have full access to healthcare and welfare provision and participate in the life of their local community as they grew up. When assessing the significance to be attached to a parent's child having British citizenship, it would also be relevant to consider whether that child possessed dual nationality and what rights and benefits attached to that other nationality. Under Strasbourg jurisprudence, Article 8 did not impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence and to authorise family reunion in its territory. Although the nationality of the persons concerned was a relevant factor, that did not mean that having a British citizen child furnished “powerful reasons” for granting admission or entry clearance or that “substantial weight” must be given to a child's nationality. What weight was to be given was to be left as a matter for each Contracting State's “margin of appreciation”. In order to establish the scope of the State's obligations, the facts of the case must be considered and the rights and benefits that attached to nationality would depend heavily on the...
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