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British citizen children and entry clearance

In two recent cases, the Upper Tribunal has considered the relevance and weight to be accorded to having a British citizen child in: (i) entry clearance and (ii) deportation cases. The first will be outlined here, whilst the second will be analysed in a separate post.

SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 00043

SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 00043 involves a Sri Lankan national appellant who married a British citizen in November 2011. They have two children, born in 2013 and 2015, both of whom are British citizens and have been residing with the appellant in Sri Lanka. The appellant applied for entry clearance as a spouse under Appendix FM twice. Both applications were refused and the appeal against the second refusal was dismissed in the First-tier Tribunal.

Entry clearance was refused on the basis that the Secretary of State was not satisfied the appellant met the eligibility financial requirements of Appendix FM. It was also concluded that there were no exceptional circumstances justifying a grant of entry clearance.

The Upper Tribunal set aside the First-tier Tribunal’s decision on the basis there had been a material error of law: the judge had failed to have regard to the British nationality of the two children. The appellant had accepted that the requirements of Appendix FM were not met, but argued this was not a determinative factor, as the refusal of entry clearance prevented the appellant’s two British citizen children from living in the UK and deprived them of the opportunity to exercise their rights as British citizens.

In re-making the decision, the Upper Tribunal presidential panel first considered the legal and policy framework relating to British citizen children in the immigration context. The panel considered that the immigration rules provide an in-country route for  applicants having a genuine and subsisting relationship with a British citizen child. Further, s.117B(6) of the Nationality, Immigration and Asylum Act 2002 offers protection against removal when it is not reasonable to expect the qualifying child to leave the UK. In either case, the child and parent concerned must be living in the UK. 

However, the Upper Tribunal acknowledged that paragraph GEN.3.2. requires the decision-maker to consider whether there are exceptional circumstances giving rise to a breach of Article 8 because such a refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member. It was considered that, whilst the Secretary of State’s policy confirms the starting point is that a qualifying child would not normally be expected to leave the UK, it does not contain provisions relating to British citizen children who live abroad. 

The panel then went to consider domestic and Strasbourg case law. It found difficulty in seeking to apply the guidance in ZH (Tanzania) [2011] 2 AC 166 and Zoumbas [2013] UKSC 34, as both concerned children who were already in the UK and their or their parents’ removal, rather than British children living abroad and entry clearance. Nonetheless, the Upper Tribunal held that, in both domestic and Strasbourg jurisprudence, it had been found that nationality is a relevant consideration in both removal and reunification cases, but not necessarily a weighty factor. The presidential panel’s conclusions were summarised in paragraph 71 of the judgment:

  1. Taking stock of the relevant Strasbourg jurisprudence on Article 8, we derive that (i) Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory; (ii) a relevant factor that must be taken into account is the nationalities of the various persons concerned; and (iii) in order to establish the scope of the State’s obligations, the facts of the case must be considered. In relation to (ii), we cannot find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes “powerful reasons” for granting admission or entry clearance or that “substantial weight” must be given to a child’s nationality. What weight is to be given appears to be left as a matter for each Contracting State’s “margin of appreciation”. As regards (iii), we would observe that in this regard the Strasbourg jurisprudence reflects our own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances.

In applying this guidance to the facts of the appellant’s case, the Tribunal re-iterated in paragraph 90 that nationality is a relevant factor in family life cases and an entry clearance applicant with a British citizen child is entitled to have that factor considered. However, the Tribunal also held that:

“the degree of weight to be attached to nationality will always depend on the particular circumstances and the individual facts and that it is not regarded as a necessarily weighty matter. There is also the point that a dual national child enjoys the benefits of his or her other nationality. There is nothing in the Strasbourg or domestic jurisprudence that requires the respondent or a tribunal, as a general matter, to ascribe greater significance to the child’s European/British citizenship than to the citizenship of the other country. That is unsurprising, since any such requirement risks being seen as a form of Eurocentric arrogance.” 

In light of the above, the Tribunal considered the children’s best interests with reference to their circumstances. In terms of the relevance of the children’s British nationality alone, the Tribunal considered that they are also nationals of Sri Lanka and, as such, can enjoy the rights and benefits of their nationality there. Further, “[w]hilst the effect of the refusal decision on the appellant’s children is to deprive them of the opportunity to enjoy the rights and benefits of British citizenship that flow from residence in the UK”, the Tribunal found that this deprivation is time-bound as they can choose to move to and reside in the UK once they are adults.

Following a wider proportionality assessment including consideration of all relevant factors, the Tribunal found there is no breach of Article 8 by the refusal of entry clearance and dismissed the appeal.

Overall, the Upper Tribunal appears to make a clear distinction between entry clearance cases involving British citizen children abroad and removal cases involving British citizen children living in the UK. Whilst British citizenship in the latter cases will “hardly ever be less than a very significant and weighty factor against moving children who have that status to another country”, as per Lord Hope in ZH (Tanzania), the weight to be accorded to the children’s British citizenship in the former cases would tend to be less, as demonstrated by this judgment, although this would depend on the particular circumstances. 

In my view, (i) the distinction of approach between removal and entry clearance cases and (ii) the principle that the weight to be ascribed to a child’s British citizenship is variable and fact-sensitive present little difficulty. I find it difficult, however, to accept that a child’s British citizenship should not be ascribed a minimum level of substantial weight in all circumstances. After all, Lord Kerr’s concluding paragraph in ZH (Tanzania) was framed at the level of principle:

  1. The significance of a child’s nationality must be considered in two aspects. The first of these is in its role as a contributor to the debate as to where the child’s best interests lie. It seems to me self evident that to diminish a child’s right to assert his or her nationality will not normally be in his or her best interests. That consideration must therefore feature in the determination of where the best interests lie. It was also accepted by the respondent, however, (and I think rightly so) that if a child is a British citizen, this has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child will live. As Lady Hale has said, this is not an inevitably decisive factor but the benefits that British citizenship brings, as so aptly described by Lord Hope and Lady Hale, must not readily be discounted.  

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