Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014.

Reasonableness of requiring a British child to leave UK

It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to leave the UK.

This was not widely known and indeed it was the Presenting Officer, Mr Wilding, who very properly brought this to the attention of the tribunal. The policy is set out in paragraph 11.2.3 of policy guidance document Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner or Parent and Private Life, 10 year Routes:

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 tribunal goes on to find:

It appears to us inevitable that if the guidance to which Mr Wilding has drawn our attention had been applied to the present family, at any time after it was published, and on the basis that the youngest child is a British citizen, the conclusion would have been 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 policy is refreshingly sensible, although one suspects that its days might be numbered. It reflects Zambrano case law and the construction of the statutory provisions in the Immigration Rules at paragraph EX.1. and in the Nationality, Immigration and Asylum Act 2002 at s.117B(6) combined with cases such as MA (Pakistan) [2016] EWCA Civ 705 (actually on 7 years residence by non British children, but surely transferable) all point in this direction in any event.

On the facts of this case the primary carer parent had no right to remain in the UK and the other parent was serving a long prison sentence. In other cases where one of the parents does have a right to live in the UK, for example because he or she is British or has Indefinite Leave to Remain, and is able to care for the child, the Home Office will argue that the child is not being required to leave the UK because one of the parents can remain with that child while the other leaves.

In such cases, the real questions are

1. Whether the parent with a right to live in the UK really can care for the child (for example, what if they are not willing, or have never previously cared for the child?)

2. Whether it is reasonable and proportionate for the family to be split and for the child to manage without the departing parent. Where there is no criminality involved, one would have thought the obvious answer was “no” but it needs to be decided on a case by case basis.

Experience suggests that the Home Office takes a hard line, however, and is willing to split families with no regard to the future consequences for wider social policy.

Jurisdiction of the tribunal in human rights appeals

Under the appeal regime established by the Immigration Act 2014, the only available ground of appeal in non asylum cases is that the decision breached a person’s human rights. Previous grounds of appeal including that of a decision being “not in accordance with the law” have been abolished.

Under this new regime, how far can the tribunal take into account a departure of the Secretary of State from her own policies? This was a question previously considered by Mr Ockelton in the case of AG and others (Policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 00082 for those with an interest in such matters.

In this new case, Mr Ockelton takes the view that even in new human rights only appeals the tribunal can and should still take into account the Secretary of State’s policies as being statements of what is or is not reasonable and that:

it is important in our judgement for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control

The tribunal goes on say that there might be some limited circumstances where a tribunal could take a different view to the Secretary of State but on the facts allows the particular appeal.

I could not help noticing that the tribunal could not actually bring itself to use the words “human rights” at any point in the determination. This is curious in a determination dealing with the important issue of the scope of the human rights right and ground of appeal.

The best argument on the relevance of policies to a human rights appeal is surely that the statute, rules and policies all define what is or is not proportionate under Article 8 and therefore where a statute, rule or policy is not applied, the decision is disproportionate and the appeal must be allowed. This requires that human rights are engaged in some way in the first place, which they plainly were on the facts of this case. See this earlier blog post for previous musings on the subject: Visit visa refusals: appeal or judicial review?

Despite the omission of any reference to the actual jurisdiction of the tribunal, the appeal must have been allowed on human rights grounds given that was the only available ground of appeal.

Source: SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC) (16 February 2017)