The case of SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 43 (IAC) shouldn’t come as a surprise to anyone following developments around Appendix FM and the rules relating to the rights of family members of British citizens to move to the UK. That does not, though, make it any less disappointing. The bottom line finding is that having a British citizen child is “not necessarily a powerful factor” in terms of being granted a visa to move to the UK. 

A British-Sri Lankan family

The appellant’s family life is, sadly, a familiar one. SD is a Sri Lankan national, who met a British citizen, LD, in Sri Lanka. They married in November 2011 and went on to have two children, who are dual British and Sri Lankan nationals. LD then moved back to the UK to prepare for the family to join him there.

SD applied for a spouse visa in June 2017. It was refused three months later on the grounds that she did not meet the financial requirements and there were no exceptional circumstances.

SD was later offered a job as a carer at a nursing home in the UK, but LD stopped working because of mental health problems. His doctor provided a letter stating that his condition could deteriorate further if he were unable to reunited with his family.

Background: human rights in spouse visa applications

Following the case of MM (Lebanon) & Others v Secretary for the Home Department [2017] UKSC 10, the Home Office made some changes to the rules on spouse visas. The changes provide that:

• where there are exceptional circumstances which could render the refusal of an application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under 18, other sources of income must be factored into the financial requirements, including future income.
• where there are exceptional circumstances which would render the refusal of an application a breach of Article 8 because of unjustifiably harsh consequences for the applicant, their partner or a child, the Home Office must grant an application.
• the Home Office is reminded of its duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to consider the best interest of children.

Section 117B of the Nationality, Immigration and Asylum Act 2002 was also considered in this case. This section, which must by applied by courts and tribunals considering human rights claims, provides that:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child [which includes a British child] and (b) it would not be reasonable to expect the child to leave the United Kingdom.

Finally, the Upper Tribunal considered the Immigration Rules and Home Office guidance relating to parents of British children, including paragraph EX.1 of the Immigration Rules, which provides broadly the same as section 117B above for parents in the UK.

Request for a common sense and humane approach

You would think, if the Immigration Rules were based on common sense and humanity, that SD should be granted a visa. After all, if the purpose of the financial requirement is to ensure migrants are not a “toll on the public purse”, the fact that she had a job offer lined up should be sufficient. LD’s mental health could also be expected to improve with the arrival of his family, allowing him to also go back to work.

SD also made several legal points which you would think would be winning arguments, again presuming a common sense and humane approach to the rules. Some are worth quoting:

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”.

Paragraph 4

… 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… 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).

Paragraph 6

But as we shall see, common sense and humanity are not the law.

Upper Tribunal findings: the Rules are the Rules

The Upper Tribunal made a series of findings against SD, relying on the Rules and Home Office policy. These include:

• “… neither the legislation nor the Rules nor any current Home Office policy expressly identifies the fact that an entry clearance applicant has children with British citizenship as a factor of any particular weight. There is no entry clearance analogue of EX.1 or s.117B(6)” [paragraph 87].
• “… 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” [90].
• Having the sponsor moving to Sri Lanka “would cause difficulties” but it would not “pose insurmountable obstacles or result in unjustifiably harsh consequences” [94].
• It would be in the children’s best interests to live with both their parents, but it would not “significantly impair their welfare/best interests if their father went to live with them in Sri Lanka” [105].

For good measure, the tribunal found that even if it had been necessary to examine the evidence of SD’s job offer in the UK, she did not submit it in the format required by Appendix FM-SE of the Rules. (In the event, it considered that the job offer was not relevant as refusal would not cause unjustifiably harsh consequences.)

Nor did the case of C-34/09 Zambrano justify a grant of entry clearance. Although Zambrano can apply to children outside the UK, there is no “automatic basis” for parents of British citizen children living abroad to be admitted under EU law.

Were the rules based on common sense…

These findings may be expected, but are nevertheless disappointing. If the Rules really were about protecting the public purse, then common sense would dictate that the partner’s future income in the UK be taken into account, whether or not a refusal would result in “unjustifiably harsh consequences”.

It is also not clear how the findings on Zambrano are lawful. There is indeed no automatic basis for parents of British citizen children to be admitted to the UK, but the test is whether preventing the parents from moving to the UK would effectively deprive the children from living in the EU. There is no doubt to me, in this case, that the British children will not move to the UK without their mother, and therefore Zambrano should apply. It may be worth her trying to make an application on this basis before the end of the Brexit transition period.