Upper Tribunal (Immigration and asylum chamber), 2020-01-23, [2020] UKUT 43 (IAC) (SD (British citizen children – entry clearance))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Rimington, Dr H H Storey, Judge of the Upper Tribunal |
| Status | Reported |
| Date | 23 January 2020 |
| Published date | 18 February 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | British citizen children – entry clearance |
| Hearing Date | 30 October 2019 |
| Appeal Number | [2020] UKUT 43 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 00043(IAC)
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 30 October 2019 |
|
|
|
………………………………… |
Before
THE PRESIDENT, THE HON. MR JUSTICE LANE
UPPER TRIBUNAL JUDGE RIMINGTON
DR H H STOREY, JUDGE OF THE UPPER TRIBUNAL
Between
SD
Appellant
and
ENTRY CLEARANCE OFFICER, COLOMBO
Respondent
Representation:
For the Appellant: Mr P Lewis, Counsel, instructed by Mylvagananam Manicavasagar
For the Respondent: Mr T Lindsay, Home Office Presenting Officer
1. British citizenship is a relevant factor when assessing the best interests of the child.
2. British citizenship includes the opportunities for children to live in the UK, receive free education, have full access to healthcare and welfare provision and participate in the life of their local community as they grow up.
3. There is no equivalent to s.117B(6) of the Nationality, Immigration and Asylum Act 2002 in any provision of law or policy relating to entry clearance applicants.
4. In assessing whether refusal to grant a parent entry clearance to join a partner has unjustifiably harsh consequences, the fact that such a parent has a child living with him or her who has British citizenship is a relevant factor. However, the weight to be accorded to such a factor will depend heavily on the particular circumstances and is not necessarily a powerful factor.
5. When assessing the significance to be attached to a parent’s child having British citizenship, it will also be relevant to consider whether that child possesses dual nationality and what rights and benefits attach to that other nationality.
DECISION AND REASONS
1. This is a decision to whose writing each member of the panel has contributed.
2. The appellant is a national of Sri Lanka. In November 2011 she married a British citizen, LD (the sponsor). She is a qualified nurse. They have two children, born in January 2013 and April 2015 respectively. Both are British citizens. In June 2016 she applied for entry clearance as a spouse under Appendix FM of the Immigration Rules. This was refused on 17 January 2017. She applied again on 12 June 2017. She was refused again on 10 September 2017. A review was refused by an Entry Clearance Manager on 15 June 2018. The appellant’s appeal was dismissed by Judge Burns of the First-tier Tribunal on 4 September 2018. On 30 July 2019 the Upper Tribunal set aside Judge Burn’s decision for material error of law, finding that in assessing the appellant’s Article 8 circumstances the judge had failed to have regard to the (British) nationality of the two children. In this case, the two British citizen children reside with the appellant abroad, in Sri Lanka and so the issue of the significance or otherwise of their British citizenship arises in the context of the refusal of the application made by their mother to join her husband and the children’s father in the UK.
3. The basis of the respondent’s refusal of entry clearance on 10 September 2017 (which is the subject of this appeal) was that she did not meet the eligibility financial requirements under para E-ECP.3.1. to 3.4 of Appendix FM of the Immigration Rules. “[N]umerous discrepancies” between the sponsor’s payslips and the transactions in his bank statement and also in pay dates, led the respondent to conclude that his gross income from employment had not been shown to meet the financial requirements. His application was therefore refused under paragraph EC-P.1.1(d) of Appendix FM. The respondent also stated, under the heading “Exceptional circumstances”, that “based on the information you have provided we have decided that there are no such exceptional circumstances in your case.” Under a further heading, “Refusal under the Partner Rules”, the respondent noted that as well as not qualifying under the 5-year partner route, the appellant did not qualify “on the 10-year partner route on the basis of exceptional circumstances under Appendix FM.”
4. The appellant’s skeleton argument accepted that the appellant 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. It was submitted that the refusal decision effectively prevented the appellant’s two British citizen children from living in the UK and thus engaged Article 8 in and of itself, even if the children had never lived in the UK. Nationality or citizenship was an important aspect of a person’s social identity and can form a component of private life protected by Article 8(1). Whilst the children in this case were not deprived of their British citizenship, the decision robbed them, in practical terms, of the opportunity to exercise their rights as British citizens. If they could not come to the UK they could not exercise their right of abode and all its concomitant rights – “the right to grow up in their country with their own culture and language; their right to attend UK schools and receive NHS treatment; or their right to develop and maintain social relationships in the UK.”
5. The skeleton argument stated that “[i]t is no answer to say they could come to the UK at a later date.” It was argued that although the domestic law duty under section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to them, it is clear from Jeunesse v The Netherlands (2015) 60 EHRR 789, among other cases, that the Strasbourg jurisprudence on Article 8 applies the best interests of the child test and in this case their best interests weighed strongly in favour of them being able to reside in the UK and exercise their rights as British citizens to grow up in the UK where they will enjoy a higher standard of health care and education to which they are entitled as of right. 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”.
6. The appellant’s skeleton argument also submitted that whilst British citizen children outside the UK are not in all respects in the same position as that of British citizen children in the UK, whose parents had the benefit of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (hereafter the 2002 Act), this 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 UK and living with their parent(s). Further, it was submitted that it would be unjust to put the appellant in a worse position because she applied for entry clearance from abroad, rather than (for example) entering illegally or overstaying and then making an in-country application under s.117B(6).
7. It was also contended that even though the sponsor had ceased working since the last hearing, the appellant had been offered a job as carer at a nursing home in the UK working 40 hours a week, which would create an adequate income to maintain and accommodate herself and the children. Her potential earnings were a factor that could properly be taken into account when assessing Article 8 outside the Rules (in support, the grounds cited the case of MM v Secretary of State [2014] EWCA Civ 985, but we note that the same point was advanced in MM (Lebanon) [2017] UKSC 10) at [99]-[100]).
8. The respondent’s skeleton argument contended that the appellant did not meet the Immigration Rules at the time she applied, and she could not meet the Rules now. There was no reason why she could not reapply once the Rules can be met.
9. It was submitted further that in order to qualify for a grant of entry clearance outside the Rules the appellant must demonstrate the existence of exceptional circumstances that would make it unjustifiably harsh to refuse her entry to the UK. The refusal decision did not give rise to “interference of such severity as to engage Article 8.” Alternatively, it was submitted that any interference was limited and proportionate. The respondent accepted that the best interests of the child were “capable in principle of forming a factor relevant to proportionality”. In the appellant’s case, the question regarding the...
To continue reading
Request your trial