Home office guidance for British children

The head note in the Upper Tribunal case of SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC) states:

" Even in the absence of a "not in accordance with the law" ground of appeal, the Tribunal ought to take the Secretary of State's guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal."

The Upper Tribunal in that case examined the home office guidance which is relevant in assessing reasonableness of return of families with a British child(ren). The relevant part is contained in the IDI for the 10 year family life at paragraph '11.2.3: Would it be unreasonable to expect a British Citizen Child to leave the UK?' which states as follows:

"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.

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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: 

•           criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules; 

•           a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules. 

In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children's Champion on the implications for the welfare of the child, in order to inform the decision."

The main question was whether there any consideration has been given to the possibility of the British citizen child staying with another parent or alternative primary care in the EU. In cases where there is no alternative carer, the conclusion would be to grant the family members of that child leave to remain in order to preserve the family unit in the UK.  

The guidance plays a welcoming role in that conclusion as observed by paragraph 10 of the judgement: 

"It is clear that the appellants do not have available to them a ground of appeal on the basis that the decision was not in accordance with the law such as before the amendments made to the 2002 Act by the 2014 Act they might have had. Nevertheless it appears to us that the terms of the guidance are an important source of the Secretary of State's view of what is to be regarded as reasonable in the circumstances, and 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."

Comment

Amna Ashraf

Amna Ashraf has worked for McGill and Co since 2011 and currently holds post as a solicitor. She has developed considerable experience in family immigration matters and holds a very high success rate owing to her meticulous attention to detail and tenacious approach.