SF and Others (Guidance, Post-2014 Act) Albania
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Kamara,Kamara UTJ,CMG Ockelton |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] UKUT 120 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 February 2017 |
[2017] UKUT 120 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Kamara
For the Appellant: Mr A Eaton, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer.
SF and others (Guidance, post — 2014 Act) Albania
Even in the absence of a “not in accordance with the law” ground of appeal, the Tribunal ought to take the Secretary of State's guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.
There are three appellants: all are nationals of Albania, a mother and her two young children. Each of them entered the United Kingdom unlawfully some time, apparently, in 2012. Previous to that, they had lived in Albania. The first appellant's husband came to this country much earlier. He obtained indefinite leave to remain and subsequently, by false representations as to his nationality or identity or both, obtained a grant of British citizenship. He is currently serving a sentence of seven and a half years imprisonment for offences connected with people-trafficking.
After the appellants arrived in the United Kingdom, the first appellant gave birth to a further child; that child was born when the child's father had indefinite leave to remain (whatever may be said about his citizenship) and as a result the youngest child is a British citizen. The appellants were, on 29 April 2015, served with notices refusing asylum claims and deciding that they should be removed from the United Kingdom as illegal entrants, which it is accepted they are.
A number of claims were raised in response to that decision. The asylum claim is no longer pursued, and was not pursued before the First-tier Tribunal. A claim based on Article 3 of the European Convention on Human Rights was also not pursued before the First-tier Tribunal. The First-tier Tribunal was invited to consider a claim based on the Immigration European Economic Area Regulations 2006 (as amended) on the basis that the first appellant was the primary carer of an EU citizen child. That claim was dealt with by the First-tier Tribunal and rejected as a matter of jurisdiction. That matter is again no longer pursued. What is pursued is an argument that because of the nationality of the youngest child, it would be unreasonable to expect that child to leave the United Kingdom; and that that has an impact on the merits of the decision that the appellants should be removed. In so far as that matter is concerned, before the First-tier Tribunal there was some difficulty in ascertaining precisely whether the youngest child is indeed a British citizen. The Presenting Officer evidently took the position that because of the unedifying immigration history of the father there was some doubt about the citizenship of the child. That doubt was endorsed by the First-tier Tribunal Judge who decided that the child was, if we put it in this way, not entitled to be regarded as a British citizen for the purposes of the appeal. That, it is accepted, was wrong. The youngest child is a British citizen. The Secretary of State has formally accepted that matter in the Rule 24 notice and indeed rightly so.
The First-tier Tribunal dismissed the appeals on the basis that there was no perceptible reason why this Albanian family, including now three children and a mother, all of whom have Albanian nationality (whether or not they also have British citizenship) should not live in Albania. Their face-to-face contact with the children's father was the subject of evidence at the hearing; the judge decided that it was not particularly significant and that contact with him while his sentence continued could be maintained by telephone and so on.
The grounds of appeal, as pursued, are as we have said, now limited to the question whether the need of the youngest child to leave the United Kingdom under those circumstances was properly assessed.
The jurisdiction of this Tribunal is that set out in the 2007 Act. As we pointed out to Mr Eaton, if we are satisfied that the making of the First-tier Tribunal decision involved an error of law we may, (but need not) set that decision aside; if we...
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