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Upper Tribunal again emphasises the importance of Home Office Guidance

In the recent case of SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 00120 (IAC), the Upper Tribunal has emphasised the importance of Tribunals considering relevant Home Office Guidance if pertinent to the case, even if no submissions on said guidance are made by the Appellant.

The Background

The case concerned a mother, who entered the United Kingdom from Albania in 2012 with two young children to join her husband, who had obtained indefinite leave to remain by false representations. He was subsequently sentenced to seven and a half years in prison for offences related to people trafficking.

Whilst in the UK, the mother gave birth to another child. Due to the father’s immigration status, this child was a British Citizen. However, in 2015 asylum claims made by the mother and children were refused, and the Home Office ruled that they should leave the UK.

First Tier Tribunal

In an appeal to the First-Tier Tribunal (the ‘FTT’), the appellant submitted that, due to the youngest child’s citizenship, it was unreasonable to ask the family to move back to Albania. Whilst the FTT (incorrectly) cast doubts on the citizenship of the child, the appeal was dismissed primarily on the basis that the FTT could see no reason why the family unit would be disadvantaged by a move back to Albania.

The Upper Tribunal

At the appeal to the Upper Tribunal (the ‘UT’), this conclusion was challenged from a somewhat unexpected source: the Respondent. The Home Office Presenting Officer pointed the tribunal to the Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner or Parent and Private Life, 10 year Routes”. This states that:

“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:

1) criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
2) a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules…[and] in considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation.

The Respondent admitted that as none of these criteria applied to the appellants, under the current Home Office guidelines the family should have been granted leave to remain. The UT, therefore, stated that even though the decision had not been contrary to any immigration law, and even though no submission on this matter had been made by the Appellants’ counsel, the fact that these guidelines had not been considered meant that the appeal must be allowed. It was emphasised that:

“It is only possible for Tribunals to make decisions on matters such as reasonableness consistently with those that are being made in favour of individuals by the Secretary of State if the Tribunal applies similar or identical processes to those employed by the Secretary of State… [therefore] where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, we think, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it.”

Potential Impact

This judgment is the latest in a series (see UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85) emphasising the importance Tribunals place on Home Office guidance. Counsel and solicitors involved in such cases should, therefore, check carefully as to whether any applicable guidance is available, and whether it is relevant to the facts in hand.

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