SD v Entry Clearance Officer, Colombo

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 best interests of the child yielded an “unemphatic” answer since the children had wider family in Sri Lanka and their continuous residence in Sri Lanka would be disrupted by relocation. Further, the ECO refusal would only delay, not permanently deprive, the opportunity for the children to exercise their right to reside in the UK. Nor had it been shown that the children could not, for example, attend school in the UK during term time, continuing to live with their mother in Sri Lanka the rest of the year.

10. The fact that there was no reason why the appellant could not reapply when she could meet the Rules was also relevant to proportionality, since the appellant and sponsor will have been aware at all material times that they may not be able to live together in the UK, unless and until they meet Immigration Rule requirements. The ECO refusal only maintains the status quo ante and Article 8 does not protect a preference for domicile and it has not been established that the family could not reasonably choose to live together in Sri Lanka. Also weighing against the appellant’s case based on family life was that she had stated in her application that “[d]uring my stay in the UK our children will be looked after by my parents.” There was no reason to consider that it is any less reasonable now for the children to remain in Sri Lanka with their mother pending an application that meets the Rules, than it would have been at the date of application for the children to remain in Sri Lanka without their mother. It was argued that the expressed willingness of the appellant to voluntarily leave the children in Sri Lanka for an indeterminate period significantly undermined her arguments that the appealed decision was incompatible with s.55 and Article

8.

11. It was also submitted, as regards the appellant’s private life, that the appealed decision does not interfere with the appellant’s private life; private life is not engaged in respect of a person outside the Contracting State: Secretary of State for the Home Department v Abbas[2017] EWCA Civ 1393 at [18]. The children, it was submitted, are not prevented from living in the UK by the appealed decision or at all. Submissions at the hearing

12. Mr Lewis asked us to find that the decision under challenge was both an interference with family and private life and a disproportionate interference. Central to the appellant’s case was the fact that British citizenship was not simply an economic right; its right of abode component amounted to, in the words of Lord Mance in R (Bancoult) v Foreign Secretary (No 2)[2009] 1 AC 453 at [151], a constitutional or foundational right. Nationality, Mr Lewis said, gives choice and the ability to exercise choice. Its core was the right of abode and the longer the children were away from the UK the harder it would be for them to integrate and to contribute and add to the social fabric.

13. As regards the private life component to the appellant’s claim, her case was to be distinguished from that considered by the Court of Appeal in Abbas, since in Abbas there was no British national children and the application was for a visit visa whereas here the appellant sought entry with a view to settlement. The respondent was required to undertake a best interests of the child assessment and, in the appellant’s case, refusal of entry clearance to her entailed denial to her British citizen children of the opportunity to exercise the rights and benefits of that nationality. The children had made known their wish to come to the UK. They were entitled as British citizen children to the higher standards of education and social welfare available in the UK. He reiterated the appellant’s submission that the British citizenship of the children did not create an absolute entitlement for the appellant to be granted entry clearance but it provided powerful reasons which could only be outweighed by criminality or a poor immigration history, neither of which pertained here. Ironically, if the appellant had entered illegally she may have stood to benefit from 117B(6). Both parents were of good character.

14. Mr Lewis pointed out that, as regards the appellant’s situation under the Immigration Rules, the sponsor was no longer in work due to health problems, including anxiety and depression, but the appellant, although not working in Sri Lanka presently, had an offer of employment as a nurse carer which meant the couple could now meet the financial requirements. The Upper Tribunal was in as good a position as the ECO to reach a view on the current financial circumstances. They had already paid the fee for their application. The sponsor had lived for periods in Sri Lanka and had attempted to find work, the longest being for 2 months on a salary of £450-500 per month. The costs of the children attending an English school was £200 a month. On that salary he would not be able to pay to continue that schooling. The state school was Tamil-speaking. The children had been put into an English school to prepare them for life in the UK. Their parents identified education in the UK as being of primary importance for their children.

15. Mr Lewis reiterated the point that even though s117B(6) of the 2002 Act was not applicable to the appellant, it clearly reflected a public policy to accord particular weight to the nationality of children who were British citizens.

16. Mr Lewis submitted that there were exceptional circumstances in this case: the father and the two children were British citizens; the father was suffering from mental health issues; one of the children had gone to the UK to visit the father but he could not cope on his own. This underlined the importance of the best interests of the children lying in being with both their parents. It was unrealistic due to economic circumstances to suggest the children could move between the UK and Sri Lanka.

17. Mr Lindsay submitted that it was incorrect to portray the refusal of entry clearance to the appellant as denying the children their right of abode or opportunity to live with their mother and family as a family unit. As regards the financial circumstances of the appellant and sponsor, they had clearly failed to meet the financial requirements. Even accepting that for the purposes of assessing the appellant’s Article 8 circumstances outside the Rules it was proper to consider the appellant’s potential earnings from a job as a nurse in the UK, there were evidential gaps – for example the job offer to the appellant had not been verified, there was no medical evidence that the sponsor could not work and there were childcare issues if she worked. The Home Office guidance on exceptional circumstances made clear that it was only if there were exceptional circumstances that consideration might be given to disregarding the financial requirements.

18. In relation to the children’s best interests, Mr Lindsay accepted that s.55 considerations were capable of being applied, but submitted that it was not uncommon for children to come to the UK when they were older and there was no reason why they could not make visits or indeed attend school in the UK, whilst remaining based in Sri Lanka. In the appellant’s case, the best interests of the child assessment cut both ways and it could not simply be assumed that their integration into Sri Lankan society was less important than their potential integration into UK society. It was easy to imagine a situation of a British citizen child in which there might be very exceptional circumstances justifying entry clearance being granted to a parent of a British citizen child, if for example a child needed an organ transplant in the UK and the parent was needed to be with the child throughout that process, but that was not this case.

19. Mr Lindsay asked us to reject the appellant’s contention that the appellant’s right to respect for private life was engaged. The decision of Abbas was clear that in entry clearance cases there was no obligation on a contracting state to protect private life. There was no Strasbourg Court authority to support the view that there was.

20. So far as concerned the appellant’s family life claim, it had not been shown that the sponsor could not go and live in Sri Lanka or that the children could not exercise their rights as British citizens by attending school in the UK and returning to Sri Lanka on holidays. The appellant said in her application that it was planned to leave the children in Sri Lanka whilst she came to the UK to find work; it had not been shown there was any material change since then. Further, there was a proportionate option available to the family, namely, to resubmit a fresh application when they could meet the requirements of the Rules.