Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/10044/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 3 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

dGR
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Skinner, instructed by ATM Law Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. In a decision and reasons dated 23 February 2017, which is appended, I found an error of law and adjourned the final decision pending submissions from the parties in light of the judgment in MM (Lebanon) & others [2017] UKSC 10, which was due to be handed down two days after the hearing on 20 February 2017. Unfortunately there was a short delay in promulgation of my decision, with the effect that the timetable for submissions ran slightly later than envisaged as my decision was not reached by the parties until 13 March 2017. I received Mr Skinner’s written submissions on 15 March 2017 by way of email. Mr Melvin was copied in but I have not received submissions in response from him to date. Given that my direction was for submissions on behalf of the Respondent to be submitted 7 days after receipt of submissions on behalf of the Appellant and that 15 days have since elapsed, I proceed to determine the appeal.
2. The appeal before me concerns an application for entry clearance pursuant to section EC-C 1.1. of Appendix FM of the Rules by a child aged 16 at the date of decision of 5 October 2015, with a supplementary decision of 29 March 2016. The substance of the decisions is the same viz that the Respondent was not satisfied that the Appellant’s parents have continued to have sole responsibility for her because they have lived in the United Kingdom since 2003 and there are no compelling circumstances to justify the grant of entry clearance outside the Immigration Rules. The Respondent was also not satisfied that the Appellant’s parents met the financial requirements of Appendix FM-SE of the Immigration Rules.
3. At the hearing on 20 February 2017, Mr Skinner accepted that the requirements of the Rules were not met in respect of E-ECC2.6(a) because the Appellant’s parents had been granted limited leave to remain in the United Kingdom as the parents of a British child and so neither parent was a partner within the meaning set out in Appendix FM. Mr Skinner also accepted that at the date of decision the financial requirements were not met, although they were met by the date of the hearing before the First tier Tribunal.
4. Consequently, the appeal proceeds on the basis of Article 8 of ECHR outside the Immigration Rules. I find that there are compelling circumstances justifying consideration of article 8 outside the Immigration Rules, given that the best interests of a British child is in issue, the child in question being the younger brother of the Appellant bon in 2004 and naturalised in 2014. I have had regard to the decision in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC) and further take into account the best interests of the Appellant, given that in MM (Lebanon) & others [2017] UKSC 10 their Lordships held at [91] that:
“Furthermore, although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere
5. The question is whether in all the circumstances, the refusal to admit the Appellant to the United Kingdom constitutes a disproportionate interference with her and her family members’ right to family life. I have had regard to the five part test set out by Lord Bingham in Razgar [2004] UKHL 2007 at [17]. I find that there is family life between the Appellant, her parents and her younger brother, bearing in mind that she resided as part of the family unit with her parents in India until the age of 3, since which time she has lived with her grandparents but has remained in contact with her parents throughout the subsequent years and her parents have paid for her maintenance, accommodation and education. Once her parents were granted discretionary leave to remain in September 2014, they visited the Appellant that year, with her younger brother and returned to visit her in 2015. The Appellant’s father visited her again in 2016. As to the Appellant’s grandparents, whilst clearly the Appellant has established family life with them also, the position at the date of decision was that they have become aged and infirm; her grandfather requires round the clock care and her grandmother is unable to look after both the Appellant and her grandfather.
6. It is the case that the Appellant’s younger brother is a British citizen. I find that, in light of the decision in Sanade and others (British children - Zambrano – Dereci) [2012] UKUT 00048 (IAC) at [95] that, in respect of the child: “it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so.” I find that there is no country other than the United Kingdom where the right to family life of this family as a whole can be exercised, bearing in mind also the judgment of the House of Lords in Beoku Betts [2008] UKHL 39.
7. I have also had regard to the provisions of section 117B of the NIAA 2002, as amended by section 19 of the Immigration Act 2014 and I note that the Appellant speaks English; that she would be financially supported by her parents if admitted to the United Kingdom, bearing in mind that they met the financial requirements of the Rules by the date of hearing before the First tier Tribunal and that family life was formed at a time when the parties were residing together in India.
8. I have taken into consideration the submissions made to me at the hearing on 20 February 2017 and Mr Skinner’s submissions of 15 March 2017.
9. The ultimate test, as set out by their Lordships in MM (Lebanon) & others [2017] UKSC 10 at [44] is:
“44.The issue is always whether the authorities have struck a fair balance between the individual and public interests and the factors identified by the Strasbourg court have to be taken into account, among them the “significant weight” which has to be given to the interests of children.”
10. In light of my findings at [4] to [7] above and in light of the judgment in MM (Lebanon) & others [2017] UKSC 10, I find that the decision of the Entry Clearance Officer refusing to admit the Appellant to the United Kingdom to reside with her family is a disproportionate interference with their right to family life pursuant to Article 8 of ECHR.
11. I allow the appeal on human rights grounds.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

30 March 2017