The Upper Tribunal in T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC) has decided that section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children outside of the United Kingdom, although you might be forgiven for thinking otherwise after reading the case.

The case concerned a 16 year old Jamaican national who had made an application to the ECO in Kingston for leave to enter under paragraph 297 of the Immigration Rules to join her mother in the United Kingdom.   The application was refused on the ‘sole responsibility’ ground.   There was no reference made to section 55 in the refusal decision.

Before the Immigration Judge, T’s counsel, one of this post’s authors, served on the court operational guidance instructions which referred to the duties of ECOs under section 55 and the appeal was allowed, with the agreement of the Home Office Presenting Officer, as not being in accordance with the law and with directions that the decision should remitted back to the ECO.   However, whatever the HOPO at the hearing had thought to be the proper result, the Senior Presenting Officers’ Unit immediately appealed the determination on the basis that the ECO was not bound by any duty to consider section 55 as T was in Jamaica and not in the UK.

The Upper Tribunal found that the Immigration Judge did make an error of law in allowing the appeal on this basis.  The headnote to T states:

(i) Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom.

(ii) Where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

(iii) When the interests of the child are under consideration in an entry clearance case, it may be necessary to make investigations, and where appropriate having regard to age, the child herself may need to be interviewed.

(iv) Where the appeal can be fairly determined on the merits by the judge, it is inappropriate to allow it without substantive consideration simply for a decision to be made in accordance with the law.

(v) It is difficult to contemplate a scenario where a s.55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.

The statutory guidance referred to by the Upper Tribunal at (ii) above is that of November 2009 entitled Every Child Matters, Change for Children.  At paragraph 2.34 of the guidance it states

The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom.  However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.

This all seems clear enough and in fact it appears that UKBA’s overseas staff had indeed given due regard to the ‘spirit’ of this duty:  See, for example, Chapter 8, Annex M of the UKBA’s IDIs of July 2011 (‘Children’) which refers to paragraph 297 and also the ECO guidance on General Grounds for Refusal, both of which expressly direct ECOs to apply section 55.

The Upper Tribunal also held that

…where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

First Tier Tribunals will now be very slow to remit cases for further consideration by the UKBA.   The Upper Tribunal perhaps unsurprisingly cited the Court of Appeal’s judgement in AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191 in support of its decision in which it was held that

…compliance with the s. 55 duty is a matter of substance rather than form, and if the decision maker’s mind is directed to the situation of the child under the rules, Article 8 ECHR or s.55, it is difficult to contend that there has no consideration of the statutory duty in substance.

AJ was the subject of one of FM’s recent posts and a concern raised there can be reiterated here: if a section 55 duty does not apply and a First Tier Tribunal is dealing with an ECO case involving children, one wonders how successfully it can place itself in a position to deal with a child’s bests interests when it cannot itself take proactive steps to gather evidence. This problem is all the more acute in entry clearance appeal hearings where there is no effective mechanism whereby the voice of those children can be heard.

Interestingly in this particular case, before the ECO took the decision to refuse T’s application he had telephoned T’s Jamaica-based father to ask for his point of view on the question of ‘sole responsibility’ and he had informed the ECO that he supported T and had had involvement with her upbringing.  The ECO had not thought to contact either T’s guardian in Jamaica or anybody else for their side of the story.   What makes the Upper Tribunal’s decision notable is that despite it determining that ECO’s have no statutory duty under section 55 and arguably fusing the ECO’s duty to comply with the ‘spirit’ of section 55 with their obligations under Article 8, it stated that the ‘best interests principle includes some requirement to sufficiently explore disputed material’ and that T should at least have the benefit of a telephone interview where she can comment on what her father had to say about her circumstances.

T was therefore given her voice albeit midway through the appeal process and following an interview between T and ECO she was granted leave to enter under Article 8.  This sounds like a strict section 55 duty to me.   However, saying that, there will unfortunately be few if any children seeking leave to enter the United Kingdom to join a parent who will have the benefit of directions given to an ECO by the President of the Upper Tribunal expressed in such helpful terms.  For those without the benefit of such directions, it will be up to their representatives as part of the application process itself to remind ECOs that an absence of a statutory duty does not mean that considerations of the child’s best interests can be ignored.