United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/20540/2012

 

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre	Decision and Reasons Promulgated
On 18 August 2015	On 04 September 2015

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

 

Between

 

MUNEER KHALIL ABDULNOOR ALI

(anonymity order NOT CONTINUED)

Appellant

and

 

ENTRY CLEARANCE OFFICER, CAIRO

Respondent

 

 

Representation :

 

For the Appellant: Mr O Shoker, SH & Co Solicitors Birmingham

For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

 

DECISION AND REASONS

 

Preliminary

 

The First-tier Tribunal made an anonymity direction in relation to the appellants because of the nature of the case. There was no application to continue this direction or for me to make a similar order in the Upper Tribunal. Given the facts and legal issues in this appeal, I do not find any reason to make such an order of my own volition.

1.             At the end of the hearing, I told those present what I had decided.

Decisions

2.             First, I found a legal error in the way First-tier Tribunal Judge C Lloyd assessed proportionality in relation to article 8 of the human rights convention in her determination promulgated on 2 July 2013. This was because it was unclear if Judge Lloyd had taken all relevant factors into consideration. Most notably was her lack of reference to the best interests of the appellant's British citizen children.

3.             Second, I found the error to be one that required me to set aside her decision on that matter because it was possible that consideration of the best interests of the children and other relevant factors might result in a different outcome.

4.             Third, after rehearing the appeal against the immigration decision of 20 September 2012 refusing to grant the appellant entry clearance to join his wife in the UK, I concluded that taking into account the best interests of the children and all other relevant factors, including the statutory public interest considerations, the original appeal still fell to be dismissed.

5.             Although I announced my decisions at the end of the hearing, I was only able to give a brief indication of my reasons. I now give my reasons in full for the decisions I have made.

Background information

6.             Before giving my full reasons, it is useful to set out the available information about the appellant's family life. None of the following facts is disputed, any previous dispute having been resolved by Judge Lloyd.

7.             The appellant applied for entry clearance on 29 June 2012. His application was considered under paragraph 281 of the immigration rules and not under appendix FM to the rules because that was introduced only in July 2012 and transitional provisions applied to pending applications such as the appellant's.

8.             In his visa application form the appellant provided the following details.

9.             He married Risala Saleh Abdulla on 10 February 2006. Although his wife was born in Yemen and grew up there, she is a British citizen, as confirmed by her passport which was issued on 16 September 2007.

10.         The couple lived together in Yemen from when they married until 4 December 2010 when Mrs Abdulla came to the UK. During that time, the couple had two children, Deyala (who was born on 15 March 2007) and Khalil (who was born on 4 March 2009). Both children are British citizens and came to the UK with their mother on 16 December 2010.

11.         In the UK, Mrs Abdulla and the children lived with her parents. It was intended that the appellant would join his family in the same accommodation, which was adequate under the applicable immigration rules.

12.         The couple maintained contacted through phone calls. The appellant received financial support each month from his wife.

13.         The appellant did not apply for entry clearance until his wife started working and met the "adequate maintenance" test in the applicable immigration rules. He also had to wait until his wife had saved enough to pay his visa fee.

14.         The appellant was unable to meet the English language requirement of the applicable immigration rules.

15.         There was further evidence before Judge Lloyd, which she recorded in her determination.

16.         When coming to the UK, Mrs Abdulla was pregnant. The couple's third child, Kaleem, was born in the UK on 22 January 2011.

17.         Mrs Abdulla was unable to work whilst pregnant and only started work in April 2011, initially on a part-time basis but her job became full-time in April 2012. Her income at the date of decision was adequate to meet the maintenance requirements.

18.         Mrs Abdulla had not returned to Yemen because of having to look for work and because that country was no longer safe.

19.         The FCO advice to British citizens living in Yemen, since March 2011, has been to leave because of safety concerns. Those who remain are advised to minimise travel within the country and to follow various precautions.

Error of law finding

Submissions

20.         Mr Shoker relied on the grounds of application for permission to apply for judicial review, which are reproduced at pages 15 and 16 of the appellant's latest bundle. They focus on the alleged failure of Judge Lloyd to assess the best interests of the children who are affected by the refusal to grant their father entry clearance.

21.         Mr Shoker acknowledged that there was no challenge to Judge Lloyd's findings that the appellant was unable to meet the immigration rules at the date of decision. His arguments focused on paragraphs 37 and 38 of her determination. Mr Shoker said that these were inadequate because the judge failed to deal with relevant issues, most notably the best interests of the children.

22.         Mr Shoker relied on the determination of Deputy Upper Tribunal Judge French in an appeal which involved the husband of one of the appellant's sister-in-law. Judge French found that it was not proportionate to refuse to admit that person because of the best interests of the sponsor and children. Mr Shoker argued that the facts were almost identical with this case and therefore Judge French's decision should be followed.

23.         Mr Mills reminded me that the judge had found that the appellant did not meet the language requirements of the immigration rules and the Court of Appeal R (Bibi & Anor) v SSHD [2013] EWCA Civ 322, [2013] ImmAR 1007 had confirmed that the language requirements of the immigration rules were objectively justified and therefore it was proportionate to require a person to meet them even if it meant keeping a family apart.

24.         Mr Mills acknowledged that Judge Lloyd had not considered the best interests of the children but even if this was a legal error it could not be material since the appellant had provided no evidence about the best interests of his children.

25.         As to whether it would be appropriate to follow Judge French's decision, Mr Mills identified that the facts were not identical and that it was permissible for different judges to come to different conclusions even on similar facts.

Decision and reasons

26.         There is no dispute that Judge Lloyd was correct to find that the appellant enjoyed family life with his wife and children. At paragraph 26 Judge Lloyd recorded her findings that the relationship between the appellant and his wife was subsisting because they were in regular contact and committed to each other and to their children. Judge Lloyd found the evidence also showed the couple intended to live together permanently as husband and wife.

27.         At paragraph 33, Judge Lloyd reminded herself of the classic Razgar approach to article 8. In respect of the first two steps, Judge Lloyd concluded that family life existed between the appellant, his wife and their children but was not satisfied that the decision refusing entry clearance interfered with that family life since the appellant's wife and children had "chosen to separate in December 2010 when the sponsor returned to the UK with the children."

28.         At paragraphs 36 and 27, Judge Lloyd considered the alternative in case she was wrong in concluding there was no interference. She found the immigration decision to be lawful because it was necessary in the interests of immigration control.

29.         When assessing whether the decision was proportionate, Judge Lloyd reminded herself that it was important to facilitate family reunion where possible and that she should consider no only the rights of the appellant but also those of his wife and children, recognising they are British citizens. However, she concluded that in this case it was open to the family to resume family life together in Yemen as they had lived together there between 2006 and 2010. The fact the English language requirement was lawful meant this was a case where the need to maintain immigration control outweighed the personal choices of the family.

30.         I am satisfied this reasoning is defective in two areas.

31.         In paragraph 33, when deciding that the second Razgar step is not engaged, Judge Lloyd failed to have regard to Mrs Abdulla's evidence that it was not safe in Yemen. Judge Lloyd had recorded this at paragraph 13. This was a factor that could only have raised questions as to whether Mrs Abdulla's departure from Yemen in 2010 with her two oldest children was simply by choice or whether it was a response to changing circumstances in that country. Judge Lloyd made no finding and therefore I can only consider her reasoning to be inadequate on this issue.

32.         This error might not have been significant if Judge Lloyd had considered the issue when assessing proportionality in paragraph 38. Yet, even though Mrs Abdulla had given evidence about why she had left Yemen and the expert evidence from Dr Helena Wray had referred to various travel advice, including from the FCO, at paragraph 16 of her report, Judge Lloyd made no findings about whether that advice prevented the family from resuming their life together in Yemen. The failure to make findings on relevant issues is itself another legal error, particularly in the context of a proportionality assessment where the jurisprudence is clear in requiring a decision maker, even a judicial one, to have regard to all relevant factors.

33.         Before moving on to consider whether the errors are material, it is appropriate to discuss why I do not accept Mr Shoker's arguments relating to Judge French's determination. Not only was it made after Judge Lloyd made her decision and therefore she could not have given it any consideration at the date of hearing, I remind myself of article 11 of the Senior President of Tribunal's Practice Directions about the citation of unreported determinations. There has been no application under article 11 and this undermines Mr Shoker's argument.

34.         Even if there had been an application under article 11, I would have concluded that no inferences can be drawn from that determination. Not only has the understanding of article 8 developed since it was written, I am aware that Judge French's conclusions were reached after considering factors not present in this appeal. The sponsor in that appeal had health concerns which when added to the other factors led him to find that the refusal of entry clearance was not proportionate. In this appeal Mrs Abdulla has not presented any evidence of such additional factors.

35.         But this does not change my finding that Judge Lloyd's determination contains legal error.

Is the error material ?

36.         Mr Mills submitted that any error was not material because the evidence regarding why Mrs Abdulla and her children left Yemen and had not returned and regarding the children's best interest (including the child born in the UK) was very weak. Therefore, Judge Lloyd could have come to no other decision.

37.         I did not need to hear from Mr Shoker on this point because for Mr Mills's argument to be sustained it would require me to make findings on the evidence. This is not a case where there was no evidence. It is a case where there was some evidence but no decision had been made on the quality of that evidence. As further findings are necessary, I can only assume that the error might be material and therefore the errors I have identified require me to set aside Judge Lloyd's decision in relation to article 8.

Remaking the decision

38.         Being aware of the very limited evidence presented in the appeal, I asked Mr Shoker and Mr Mills if they were ready to proceed. They both confirmed they were.

39.         I checked with Mr Shoker that this was correct because I had very limited evidence in relation to article 8. There was no independent evidence regarding the best interests of the children. Mr Shoker indicated that he would be relying on the general principle that it was in the best interests of children to be brought up by both parents. Mr Shoker reminded me that he would be relying on the FCO travel advice which said that British citizens should leave Yemen and that this advice existed prior to the date of decision. Mr Shoker did not seek to call Mrs Abdulla to give evidence even though she attended the hearing.

40.         I heard submissions from Mr Mills and Mr Shoker in turn. It is not necessary to record them in detail as the content will become clear in what I say below. I add that in addition to the formal submissions, I engaged both representatives in a detailed discussion about the issues arising in this appeal.

Relevant legal provisions

41.         As indicated above, the outcome of this appeal depends on the assessment of the family life rights of the appellant, his wife and their three children. To decide the outcome I use the classic Razgar approach, which sets the following structured questions.

(1)  Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)  If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)  If so, is such interference in accordance with the law?

(4)  If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)  If so, is such interference proportionate to the legitimate public end sought to be achieved?

42.         I remind myself that I have to consider the situation at the date of decision although I can take into consideration later evidence which appertains to the situation at that date. It is for the appellant to show that article 8(1) is engaged and therefore has the burden of proof in relation to the first two Razgar questions. If he discharges that burden, then it is for the ECO to show that the immigration decision is lawful, necessary and proportionate. The standard of proof does not matter in this case because the facts have been agreed, but where a party has to prove any fact it has to be proven to a balance of probabilities.

The first four Razgar questions

43.         I have heard no argument that Judge Lloyd erred in finding that the appellant, his wife and children are a family unit and I adopt that part of her assessment. This means that the first Razgar step is found in the appellant's favour.

44.         I find that the immigration decision prevents the family unit living together in the UK and this is of sufficient gravity to potentially engage the operation of article 8. This is because the evidence suggests that at the date of decision it was not safe for Mrs Abdulla and the children to live in Yemen and the immigration decision prevented the appellant joining them in the UK. This means that the second Razgar step is found in the appellant's favour.

45.         Neither party has argued that the interference resulting from the immigration decision is not in accordance with the law. The European Court of Human Rights has routinely confirmed that it is for States to control migration. Parliament has authorised the Secretary of State to make immigration rules. The immigration decision appealed against has been upheld by Judge Lloyd. I conclude that the decision is in accordance with the law, and I move to the fourth Razgar question.

46.         Since this appeal was previously determined, statute has changed and it is necessary for me to consider statutory public interest considerations that are set out in s.117B of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014). This is not an exhaustive list of factors that might have to be considered (see Forman (ss 117A-C considerations) [2015] UKUT 412 (IAC)). As it has been established that the appellant could not succeed under the immigration rules at the date of decision, it is in the public interest that he should not be admitted in order to maintain effective immigration controls. As the appellant is not facing removal or deportation, he cannot benefit from s.117B(6) even though his children are British citizens in the UK.

47.         In addition to these statutory provisions, I bear in mind the judgment of the Court of Appeal in R (Bibi & Anor) v SSHD cited above that confirm that it is proportionate to keep a family apart where the English language requirements were not met at the date of decision, subject to their being some other compelling factor. I also take account of the more recent judgment, SSHD v SS (Congo) & Ors [2015] EWCA Civ 387, which highlights the importance of maintaining effective immigration control even where it might result in a family being unable to live together in the UK.

48.         I also remind myself that article 8 is not to be used to circumvent that control (see Patel & Ors v SSHD [2013] UKSC 72, [2014] ImmAR 456).

The fifth Razgar question

49.         In light of these considerations, I am satisfied that the proposed interference is necessary and that I need to move to the last Razgar question. In effect, the question is whether there are compelling reasons why the appellant should be admitted to the UK despite his failure to meet the immigration rules.

50.         The appellant has proposed two such factors. First, the best interests of his children require the family unit to be together so he can share in their upbringing. Secondly, it is not possible for the family unit to be together in Yemen because of the current and past safety concerns in that country.

51.         Before undertaking the necessary proportionality exercise I need to assess the facts relating to these two factors.

The best interests of the children

52.         There is a well developed corpus of case law relating to the assessment of best interests of children in immigration cases. I summarise the key provisions which emerge through the cases listed in the annex to this decision and reasons statement.

53.         When assessing the proportionality of an immigration decision, although the best interests of a child will be the primary consideration, all other relevant factors must be balanced including the public interest in maintaining effective immigration controls. In other words, other factors can outweigh what is found to be in a child's best interests.

54.         When determining the best interests of a child, any factor which might affect a child's wellbeing must be considered. There is no prescribed or exhaustive list of what factors are to be considered but the following factors can be drawn from the various authorities listed in the annex.

•                The child's identity (including nationality and ethnicity);

•                the ties the child has to a particular society and culture;

•                the ability of the child to adapt to life in another country;

•                the child's emotional needs;

•                the ability of the child to have direct contact with both parents;

•                the stability and continuity of the child's care arrangements;

•                the child's access to health, education and other services helping their development;

•                provisions relating to the child's security and safeguarding; and

•                the impact any decision is likely to have on the child's future.

55.         The various authorities also provide the following guidance.

56.         All things being equal, it will be in the best interests of children to live with both their parents. It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong. In addition, a British citizen child should not be deprived of the enjoyment of rights that derive from that citizenship.

57.         The child should be consulted about their wishes where their maturity permits. If that is not possible, then the views of their parents and others close to the child should be considered.

58.         Although in some cases a judge may have to explore whether further information about a child's best interests needs to be obtained or inquiry to be made, the judge primarily acts on the evidence in a case. Where that evidence gives no hint of a suggestion that the welfare of the child is threatened by the immigration decision in question, or that the child's best interests are undermined thereby, there is no basis for any further judicial exploration on the matter.

59.         Assessing what is actually in the best interests of a child will usually require some compromise because it will not be possible to give the same weight or prominence to all the factors that have to be considered. In addition, there may be situations where an external factor means it is not possible to create a situation where a child lives in circumstances that are assessed as securing their best interests and an alternative has to be accepted, which should be the next best option.

60.         In immigration cases, the external factors are usually the result of the proposed expulsion of a parent or both parents from the UK or the refusal to admit a parent or both parents from outside the UK. In such situations there must be cogent evidence and/or reasons to show why the best interests of the child outweigh the measures to control immigration.

61.         In general, the assessment of whether the best interests of a child outweighs the need to maintain effective immigration controls differs between those cases where the child is in the UK and those where the child is outside the UK. In cases involving expulsion, the focus will be on the reasonableness of expecting the child to leave the UK. In cases involving entry clearance, an appeal is only to be allowed where compelling circumstances exist (which are not sufficiently recognised under the Immigration Rules) to require the grant of such permission.

62.         Because of the tension between the various factors, the best interests of the child are to be determined by reference to the child alone without reference to the immigration history or status of either parent.

63.         Having identified the relevant guidance, I move on to decide the best interests of the children affected by the decision to refuse the appellant entry clearance.

64.         There is very limited evidence about the best interests of the appellant's three children. Using the above list as a starting point for assessing their best interests at the date of decision, I make the following findings.

65.         As the children are British citizens, it is important for their identity to be in the UK which is the country of their nationality. It is also important for them to remain within a Yemeni family group as that is another part of their identity. These aspects are met by the children remaining in the UK with their mother.

66.         At the date of decision, it is likely that the children were too young to develop ties to a particular culture or society. In any event, no evidence to the contrary has been provided.

67.         There is no need to consider how the children might adapt to life in a different country since it is not proposed that they will leave the UK. I assume that they have adapted to life in the UK since there is no evidence to the contrary.

68.         There is some evidence that the children's emotional needs are not fully met because of the absence of their father. The evidence of this comes from Mrs Abdulla who states in her first witness statement that her children miss their father and Judge Lloyd recorded that Mrs Abdulla said the children would ask where their father was. However, I find this evidence to be weak because it lacks detail and is not supported by any independent evidence. I conclude there is no good evidence to show that the children's emotional needs were not being adequately met at the date of decision.

69.         It is clear that at the date of decision the children did not have direct contact with both parents. Their father did not live with them. Although the mother was able to maintain contact by modern means of communication, that would have been of little benefit to the appellant's very young children, as they were at the date of decision, because they would not have the maturity to maintain or develop meaningful relationships without actual proximity to their father. The separation was not in the children's best interests.

70.         The chronology of when the older two children came to the UK and when their father applied for entry clearance shows that they had to adapt to living without their father. They would have been helped by their mother. There is no evidence to show that their wellbeing was adversely affected by that change. The youngest child has never lived with his father and therefore has never had to adapt to such a significant change.

71.         At the date of decision, the children were being cared for primarily by their mother although it would appear that her parents played a part in childcare when she was at work. It is likely that the children developed bonds with those caring for them. There was no threat, however, to those care arrangements continuing. There was no allegation that those care arrangements were inadequate. I infer that the care arrangements would continue and were stable.

72.         The children would all have had to adapt to living with their father if he had been granted entry clearance. There is nothing to indicate that they would not have been able to adapt to this change in their lives, which would no doubt have had a positive impact.

73.         No evidence has been provided to indicate that the children were exercising their citizenship rights to health, education or other services in the UK at the date of decision.

74.         There is evidence in the form of the FCO travel advice that at the date of decision it was not safe for British citizens to remain in Yemen. This indicates that it was in their best interests in terms of their security to remain in the UK. Otherwise no evidence relating to their security or safeguarding has been provided.

75.         The consequences of the immigration decision were that the children would have to live for the foreseeable future apart from their father. No evidence has been provided to show how this affected them. Because of their ages they could not be consulted. The evidence provided by their mother is very weak in that she did not go beyond saying that the children miss their father. It is not possible for me to speculate as to how the absence of their father might affect the children's development.

76.         In addition to considering these listed factors, I also take into consideration the following. The best interests of children are usually determined by their parents. Rarely do courts or tribunals have to get involved. In this case, it is evident that by December 2010 the appellant and his wife had decided that it was in the best interests of their then two children to move to the UK and for their third child to be born here. I can infer this from the chronology even though there is no direct evidence.

77.         The appellant did not apply to join his family until June 2012. The evidence indicates he delayed so that his wife could find employment and the maintenance requirements of the immigration rules could be met. The appellant thought he could circumvent the English language requirements of the immigration rules.

78.         I infer from this that the appellant and his wife recognised that they would be forced to live apart until they met the requirements of the immigration rules. It is also reasonable to infer that they accepted that it would take the ECO some months to reach a decision. I conclude that in 2010 and up until the refusal of entry clearance the couple decided that although they wished to be together as a family, it was in the best interests of their children to accept the separation forced on them by the immigration rules so that the children could live in the UK.

79.         Bringing all these factors together, I conclude that at the date of decision it was in the children's best interests to remain in the UK in the care of their mother and maternal grandparents. It would also have been in their best interests if their father could live with them.

Security in Yemen

80.         In addition to what I have said about the security situation in relation to the children's best interests, as it is accepted that in 2011 the FCO advised all British citizens to leave Yemen it is evident that at the date of decision neither the children nor Mrs Abdulla could have been expected to return to that country.

Proportionality assessment

81.         From my findings it is clear that this is a case that turns not on whether the appellant's family life could have resumed in Yemen but on whether it is reasonable in all the circumstances to have kept the family apart because he failed to meet every requirement of the immigration rules.

82.         At the date of decision, the couple did not consider the period of separation to be unreasonable. They accepted it as a consequence of their plans to relocate to the UK as a family. It is important that I do not use hindsight to review the reasonableness of the period of separation. The ECO knew that his decision would keep the appellant apart from his family but it was open to the appellant to make a new application.

83.         The appellant argues in part that the ECO would have known that a new application was bound to fail because the financial requirements had significantly changed when appendix FM was introduced. That is speculative and is not a factor I can take into consideration.

84.         What I must take into consideration is the fact that the ECO was justified in refusing entry clearance on the grounds that the immigration rules had not been met in full and because those rules outweighed the appellant's personal circumstances at that time. But it is evident that the ECO did not pay any attention to the best interests of the children or the fact that the family could not be expected to live together in the Yemen since these matters are not addressed in either the refusal notice or the Entry Clearance Manager's review even though the details of the children had been provided and the FCO's travel advice was government policy.

85.         It is for me to take these factors into consideration to ensure that the case is properly considered. Having assessed as best I can the situation at the date of decision, as I have indicated, I am satisfied the best interests of the children lay in them remaining in the UK with their mother and that it was in their interests to be joined by their father. However, as I have also indicated, there is nothing to show that the children's wellbeing had been adversely affected in any way by the separation from their father. I can only conclude, given the legal authorities and principles I have set out above, that the best interests of the children did not at the date of decision outweigh the need for maintaining effective immigration control even though this would mean that the children would continue living without their father.

86.         Where there is an obstacle to the best interests of children being achieved, it is necessary to find the next best alternative and that has to be accepted if evidence has not been provided to show that the decision preventing the best interests being established are not proportionate in all the circumstances. The absence of cogent evidence in this case means that the appellant has failed to show that his argument based on the best interests of his children requiring him to live with his family in the UK is not sound and does not outweigh the public interest in maintaining effective immigration control.

87.         As I have indicated, there is nothing to explain why the best interests of the children changed at the date of decision. Up until that time, the parents accepted that it was in the best interests of the children to be with their mother in the UK, knowing that the appellant could not qualify under the immigration rules. At the date of decision he still could not qualify under those rules.

88.         I add that the evidence from Mrs Abdulla is unreliable because it is self serving. Her own circumstances do not establish that the immigration decision is not proportionate because as I have indicated both before and at the date of decision she and her husband knew that he would only be able to join her and their children in the UK if he met the requirements of the immigration rules. As the Supreme Court has said in Patel v SSHD [2013] UKSC 72, [2014] Imm AR 456, article 8 cannot be used to circumvent the immigration rules.

89.         In reaching this conclusion I have also had regard to the Court of Appeal's guidance in SSHD v SS (Congo). At paragraph 39, the Court of Appeal identified factors that have to be considered in appeals against refusal of entry clearance relying on family life rights. As can be seen from my findings and reasoning, I have had serious concern as to the best interests of the children and the fact that they cannot establish family life with their father in Yemen. However, for the reasons I have given, I find that the evidence does not show that the immigration decision which at the date of decision resulted in the family unit being able to live together in the UK is a proportionate interference because of the lack of evidence to show that the children's wellbeing had been undermined by the decision and because the ECO was justified in enforcing the immigration rules.

 

Decision

Although I find there is legal error in the determination of Judge C Lloyd and that I must set her decision aside, when I remake the decision I find that the appeal against the refusal of entry clearance must be dismissed.

 

Signed Date

 

Deputy Judge of the Upper Tribunal

 

 

 

 

ANNEX

Cases considered when summarising the law dealing with the relationship between immigration control and the best interests of a child

 

Ruiz Zambrano (European citizenship) [2010] EUECJ C-34/09

Dereci & Ors (European citizenship) [2011] EUECJ C-256/11

 

ZH (Tanzania) v SSHD [2011] UKSC 4

Zoumbas v SSHD [2013] UKSC 74

 

Singh v ECO New Delhi [2004] EWCA Civ 1075

Lee v SSHD [2011] EWCA Civ 348

AJ (India) and Others v SSHD [2011] EWCA Civ 1191

Muse & Ors v Entry Clearance Officer [2012] EWCA Civ 10

SS Nigeria v SSHD [2013] EWCA Civ 550

EV (Philippines) and Others v SSH D [2014] EWCA Civ 874

SSHD v SS (Congo) & Ors [2015] EWCA Civ 387

 

LD (Article 8 - best interests of child) Zimbabwe [2010] UKUT 278 (IAC)

Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 247 (IAC)

E-A (Article 8 - best interest of child) Nigeria [2011] UKUT 315 (IAC)

MK (best interests of child) India [2011] UKUT 475 (IAC)

T (s.55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 483(IAC)

Sanade and others (British children - Zambrano - Dereci) [2012] UKUT 48 (IAC)

SC (Article 8 - in accordance with the law) Zimbabwe [2012] UKUT 56 (IAC)

Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC)

Campbell (exclusion; Zambrano) Jamaica [2013] UKUT 147 (IAC)

Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197(IAC)

MA and SM (Zambrano; EU children outside the EU) Iran [2013] UKUT 380 (IAC)

JO and Others (Section 55 duty) Nigeria [2014] UKUT 517 (IAC)

MK (section 55 - Tribunal options) Sierra Leone [2015] UKUT 223 (IAC)