T (s 55 BCIA 2009 - Entry Clearance) Jamaica
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 06 December 2011 |
| Neutral Citation | [2011] UKUT 483 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 December 2011 |
[2011] UKUT 483 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
UPPER TRIBUNAL JUDGE Perkins
For the Appellant: Mr G Saunders, Senior Home Office Presenting Officer
For the Respondent: Mr I Palmer, instructed by Immigration UK Partnership
T (s.55 BCIA 2009 — entry clearance) Jamaica
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(i) Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom.
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(ii) Where there are reasons to believe that a child's welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.
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(iii) When the interests of the child are under consideration in an entry clearance case, it may be necessary to make investigations, and where appropriate having regard to age, the child herself may need to be interviewed.
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(iv) Where the appeal can be fairly determined on the merits by the judge, it is inappropriate to allow it without substantive consideration simply for a decision to be made in accordance with the law.
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(v) It is difficult to contemplate a scenario where a s. 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.
A copy of the statutory guidance “Every Child Matters, Change for Children” issued by the United Kingdom Border Agency in November 2009 and referred to in paragraph 18 of this determination, can be accessed at the following link:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary
This is a case concerned with a child born on 12 December 1995 in Jamaica who at the time of the hearing before us was a few days short of her 16 th birthday. We will direct that she should be referred to as T and there shall be no publication of her name and address or that of her mother to whom we shall refer as C.
The subject matter is an appeal against the decision of the Entry Clearance Officer, Kingston to refuse to issue T with entry clearance to join C in the United Kingdom under paragraph 298 of the Immigration Rules HC 395. The ECO, Kingston was originally the respondent to T's appeal but is now the appellant before us. For the avoidance of confusion we will call the ECO the defendant. The case was listed before us with the Secretary of State as the appellant, but although the ECO acts pursuant to instructions issued by the Secretary of State we conclude that the ECO is the proper party to this appeal and accordingly appears as such in the title to this determination.
On 7 July 2011 Judge VA Osborne determined the appeal on a preliminary point without hearing any evidence or making any findings of fact. She allowed the appeal to the extent that it was remitted to the Entry Clearance Officer to give proper consideration to matters arising under s.55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The defendant sought permission to appeal on the basis that the s.55 duty did not apply to the ECO. Permission was granted on 1 August 2011 and directions were issued by Upper Tribunal Judge Freeman on 30 August 2011 when he indicated his view that “the judge was clearly wrong not to deal with the case herself” and that the Upper Tribunal was likely to re-make the decision without any further evidence.
The issues before us are:-
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a. Did the First-tier Tribunal Judge make a material error of law in reaching the conclusions that she did?
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b. If so, what should now be done to determine this appeal?
At the conclusion of the hearing we indicated our conclusion that:-
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a. The judge had made a material error of law.
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b. This appeal should be remitted to the First-tier Tribunal with directions for a hearing at the first available date after six weeks from the date of this decision, and that further directions be given to assist in the hearing of this appeal.
We now give our reasons for these conclusions.
The following facts are drawn from the papers. They are necessarily provisional until they are either agreed between the appellant and defendant or the Judge who hears the evidence reaches conclusions on contested matters.
The sponsor C was born in Jamaica in May 1977. Her father was a British citizen. In her witness statement she says she obtained a British passport through her father in 2000. This may be either because she was a British citizen by descent from birth or she was registered as such a citizen later. It seems that C first went to the United Kingdom in 2000. She has made visits back to Jamaica since then.
T was born to C and her unmarried partner CL in 1995. C makes no mention of any other children by CL, but in the course of investigating this application, the ECO spoke by phone to CL on 30 November 2010 and he said that he has two other children by C, NL who was 6 in 2010 (born approximately 2004) and KL 12 (born approximately 1998). If that is right there appears to have been an intimate relationship between C and CL between at least 1995 and 2004.
C says that she decided to migrate to the UK in 2006, although it appears she was already spending most of her time there before then. She married a Jamaican national in 2007; he was granted entry clearance as a spouse and is settled in the UK where they both work and live in accommodation in Kent, where they live with C's elder sister S.
In 2009, T made her first application for entry clearance sponsored by her mother. This was refused on 7 July 2009. The ECO concluded that C had left Jamaica in 2000 when T was 5 years old, and that T was supported by her father who she saw regularly and her mother who sent remittances and visited in 2002, 2006, 2007 and 2008. There was an appeal that T asked to be decided on the papers and it was dismissed by a judge of the First-tier Tribunal on 8 March 2010. The judge was not satisfied either that C had sole responsibility for T or that there were compelling circumstances making exclusion undesirable. The judge also concluded that refusal of the application did not breach C and T's right to respect for family life under Article 8 of the ECHR.
In September 2010 a second application for entry clearance was made supported by more information including a letter dated 29 June 2010 from a medical centre in Kingston giving details of a medical examination and complaint made by T of sexual assault on 30 June 2006; a statement from someone who says that she has looked after T since July 2010 and evidence of remittances and contact by C.
The second application was refused on 30 November 2010 shortly after the telephone call with CL referred to above, when it was assessed that T lived with her half brother, saw her father regularly and accordingly the ECO was not satisfied under either head of the Immigration Rules. The decision was reviewed by the Entry Clearance manager on 18 April 2011 who concluded that no case had been made of compelling circumstances making exclusion undesirable and that the decision did not interfere with family life and if it did it was justified and proportionate having regard to the factual foundation of the rejection of the claim under the Immigration Rules.
When the case came before Judge Osborne in June 2011 it was submitted to her that the ECO had not considered the s.55 duty with respect to T. The Presenting Officer then appearing for the defendant apparently took instructions and conceded that the appeal should be allowed on this ground.
Section 55 BCIA 2009 came into force on 2 November 2009. It states that:
“(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom; and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in sub-section (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any customs function of the Secretary of State; and
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).”
Subsections (4) and (5) impose similar duties on the Director of Border Revenue.
Mr Saunders's core submission to us is that this statutory duty imposed no obligations on the ECO, Kingston, as the subject matter of the duty is the welfare of children who are in the United Kingdom and T has never been to the United Kingdom.
Mr Palmer does not dispute that T is outside the scope of section 55(1) but submits that the guidance actually issued by the Secretary of State indicates that a duty is imposed on Entry Clearance Officers in like manner as on immigration officers.
The statutory guidance, “Every Child Matters, Change for Children” was issued in November 2009. Under the heading “Children and UK Border Agency Staff Overseas”, paragraph 2.34 reads:
“The statutory duty in section 55 of the 2009 Act does not apply in...
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