Brief Facts and Chronology
This appeal was before the Upper Tribunal (Immigration and Asylum Chamber (“UT”) and concerned the first Appellant (a mother) and two other Appellants, who were her dependent children. The Appellants were Albanian nationals who had clandestinely entered the United Kingdom from Albania during 2012 and claimed asylum.
The first Appellant’s husband (also the father of the other Appellants), had obtained indefinite leave to remain and, subsequently, British citizenship as a result of false representations as to his nationality and/or identity. He had been imprisoned and was serving a 7 ½ year sentence in the UK for offences connected with people-trafficking.
Following the Appellants’ arrival in the UK, the first Appellant gave birth to their third child. Although the British nationality of the father was disputed, the fact that he held indefinite leave to remain in the UK at the time of the third child’s birth was not. As such the third child became a British national at birth.
On 29/04/15, the Appellants’ asylum claims were refused by the Home Office and they were served notices deciding they should be removed from the UK as illegal entrants.
Appeals were brought before the First-tier Tribunal (Immigration and Asylum Chamber (“FTT”), on the basis that removal from the UK would be in breach of asylum and human rights provisions. None of these claims were pursued at the FTT hearing. Instead, the Appellants argued the FTT 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 – her third child.
The FTT dismissed the appeals on the basis that as there was some doubt about the nationality of the father, the third child was not not entitled to be regarded as a British citizen for the purposes of the appeal. Further, that there was no reason why the Appellants and the third child, all of whom had Albanian nationality, could not live in Albania. In respect of contact with their father the FTT found that this was not significant whilst he remained imprisoned and that contact could be maintained by telephone. This decision was appealed to the UT.
Question of Law before the UT
The question for the UT was whether it was reasonable for the youngest child to be required to leave the UK.
The Court considered the Home Office Guidance document entitled “Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner or Parent and Private Life, 10 year Routes” which noted the following:
“Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano.
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children’s Champion on the implications for the welfare of the child, in order to inform the decision.”
It was conceded by the Home Office that the FTT finding that the third child was not British had been wrong.
Further, although not in force at the date of the decision under appeal, the Guidance document had been in force at the date of the hearing before the FTT and was therefore applicable to the facts of the Appellants’ case at any time after its publication.
There had been no criminal conduct by any of the Appellants and no consideration had been given as to whether British citizen child could receive care from either the other parent or alternative primary carer. There was therefore no justification for separating the British national child from the Appellants. The Guidance therefore required that the Appellants should have been granted a period of leave in order to enable the British citizen child to remain in the United Kingdom with them.
The UT acknowledged that decisions made by the Home Office on the basis of the Guidance would not give rise to a right to appeal. It was therefore important for the Tribunal to apply similar or identical processes to those employed by the Home Office through their own Guidance.
The UT therefore set aside the FTT’s decision and allowed the appeals.