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


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Cite as: [2025] UKAITUR UI2023005615

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2023-005615

First-tier Tribunal No: HU/51559/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

6 th May 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'BRIEN

 

Between

 

IB

(ANONYMITY ORDER MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: In person

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 21 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.              This is the remaking of the appellant's appeal against the respondent's refusal of his human rights claim, following the setting aside by Upper Tribunal Judge Stephen Smith of the decision of the First-tier Tribunal. A copy of Judge Smith's decision is attached to this decision as Annex 1.

2.              The case concerns the best interests of a child, in the context of a historic conviction of his father for a sexual offence. I have considered the principle of open justice but consider that it is outweighed by the appellant's personal rights.

3.              The background to this case is set comprehensively in Judge Smith's decision and I need not rehearse it here, save to note that the appealed decision refused the appellant's application on suitability grounds, in that he did not satisfy paragraph S-EC.1.9 of Appendix FM. That paragraph provides:

'S-EC.1.9. The Secretary of State considers that the applicant's parent or parent's partner poses a risk to the applicant. That person may be considered to pose a risk to the applicant if, for example, they - -

(a) have a conviction as an adult, whether in the UK or overseas, for an offence against a child;

(b) are a registered sex offender and have failed to comply with any notification requirements; or

(c) are required to comply with a sexual risk order made under the Anti-Social Behaviour, Crime and Policing Act 2014 and have failed to do so.'

4.              Judge Smith concluded that the First-tier Tribunal Judge had erred in law in allowing the appeal, having found that S-EC.1.9 applied to the appellant but that his father no longer posed a risk assessment to him. The following paragraphs of Judge Smith's decision are relevant to my consideration:

'47. It may have been more accurate for the judge to have considered whether Mr Bolakar had rebutted any presumption applicable under para. S-EC.1.9.(a), since that is the approach the Secretary of State takes to deciding whether she "considers" that the relevant adult poses a risk to the applicant. In applying the provision as part of a full-merits appeal, the judge essentially (and rightly, in this context) stepped into the shoes of the Secretary of State, and decided for herself whether Mr Bolakar posed a risk to IB. She found that he did not. Although for the reasons set out below, I respectfully consider that the judge erred in her approach to the substantive question of risk, structurally the correct approach would have been to have determined whether the appellant had rebutted the S-EC.1.9.(a) presumption, rather than to conduct an "outside the rules" a risk assessment that should have been conducted under the auspices of para. S-EC.1.9.(a). Nothing turns on this, but it will be relevant to the approach I take to remaking the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), pursuant to the directions I give below.

48. I respectfully conclude that there was insufficient evidence before the judge to merit the finding that admitting IB to live with a convicted child sex offender who was subject to the notification requirements of the Sexual Offences Act 2003 indefinitely ("the Notification Requirements") would not represent a risk to him. There was no evidence from a suitably qualified professional or the relevant local authority child protection team about any prospective risk posed by Mr Bolakar to IB. Taking the best interests of IB as a primary consideration, it is difficult to see how the United Kingdom could be said to owe a positive obligation under Article 8 ECHR to IB, and his family in the United Kingdom, to facilitate his admission in the absence of independent evidence demonstrating that his father, a convicted child sex offender, did not present a risk to him. While the judge was entitled to ascribe some weight to the repeated visits to Turkey that Mr Bolakar had made, that was not dispositive of the issue. There was no evidence before the judge as to whether the Turkish authorities had taken any protective steps in relation to Mr Bolakar during those visits, or any analysis from a suitably qualified professional with expertise in child protection and welfare matters. Of course, it may have been the case that, had the relevant local authority been provided with the opportunity to assess Mr Bolakar, the conclusions reached would have been favourable to him. The difficulty, however, is that there was no evidence of that sort before the judge.

49. There was, in fact, very little evidence before the judge pertaining to the circumstances of Mr Bolakar's offending. There was some evidence from Mr Bolakar himself (see para. 2 of his witness statement dated 22 April 2022), but he simply denied the offence and sought to blame the victim's family. It is difficult to see how Mr Bolakar's continued refusal to accept responsibility for committing an offence of this nature, coupled with his attempt to place the blame on others, could rationally have led to the conclusion that he no longer represents a risk of reoffending, in the absence of other evidence addressing his risk.

50. I also consider that the judge's approach to, and reliance upon, the protective framework provided by the Notification Requirements was flawed. The Notification Requirements enable the appropriate authorities to take steps after a change in a sex offender's living or other arrangements has occurred. They do not provide advance protection, or prior safeguarding or vetting ahead of a child residing with Mr Bolakar.

51. Finally, it was an abrogation of responsibility for the judge to conclude (at para. 17) that "any concerns can be addressed by the involvement of relevant and appropriate agencies, and if deemed necessary, safeguarding measures can be implemented". It was for the judge to be satisfied on the basis of appropriate evidence that no such risk existed before IB is admitted to the country. The potential availability of ex-post facto in-country oversight and supervision that would only be engaged after IB's arrival as a protective factor is not a factor that was rationally capable of tipping the balance in favour of admitting IB, in the circumstances of this case.'

5.              The directions given by Judge Smith included provision for the appellant to apply under rule 15(2A) to rely on additional evidence and for the parties to provide skeleton arguments. Unhelpfully, neither party provided a skeleton argument and the only additional evidence provided (albeit without any rule 15(2A) application having been made) was recent email exchanges between the appellant's solicitor and the Police and Coventry City Council.

6.              The emails with Coventry City Council in short confirm that a risk assessment would be completed if the appellant were to come to its area, but none would be undertaken whilst he was outside the jurisdiction. The emails from the West Midlands Police Officer responsible for management of sex offenders in the Coventry Area state amongst other things:

'I currently manage Registered Sex Offender Mustafa BOLAKAR. He was convicted of Sexual activity with a female child under 16/ Offender 18 or over/ penetrate anus/vagina/mouth by penis/body part (Foreign Offence). He was convicted on 01/06/2011 in Turkey and the offence was dated 15/06/2005.

Mr BOLAKAR has been subject to Sex Offender notification registration requirements - part 2 of the Sexual Offences Act 2003, since 28/10/2019 following a notification order granted at court. He will remain on the sex offenders register for life.

Where an offender is subject to the notification requirements of Part 2 of the 2003 Act, information on foreign travel must be supplied by the offender to the Police in compliance with the foreign travel notification requirements set out in section 86. There are no breaches of this requirement recorded to date.

Owing to Mr Bolakers offences being against a child, there is a continued consideration of any risk Mr Bolakar poses towards children. I am informed by Mr Bolakar that he currently has no unsupervised contact with any children whatsoever. Should Mr Bolakar begin to have contact with, or reside with any child, relevant safeguarding referrals would need to be made to Childrens Services so that they can carry out the appropriate assessments and safeguarding decisions/arrangements for the contact between Mr Bolakar and a child.

I am aware that Mr Bolakar has another son, [HTB] bn 01.02.2015 who lives in the UK with Mr Bolakar's previous wife, Kerry Bolakar. I am aware that a Child Arrangements Order was granted in November 2019 where the court order specified that any contact between Mr Bolakar and Hasan is supervised. Kerry Bolakar is aware of Mr Bolakar's criminal history and supervises this contact herself to ensure the safety of her son. It is my understanding that although Childrens Services involvement ceased in in 2019, this arrangement is still in situ with regards to Mr Bolakar's contact with his son.

I would be concerned if any decisions were made which would bring Mr Bolakar into contact with children without the appropriate assessments being carried out prior.'

7.              The appellant's father and mother gave evidence, although they had not provided updated witness statements. They both insisted that the father was no risk to the appellant. They both confirmed that CAFCASS ceased supervising his contact with HTB after around 3 months, and that contact had continued thereafter at his mother's house. However, they suggested that HTB's mother was not always present for that contact. Nevertheless, no updated child arrangements order has been produced and certainly it appears that Mr Bolakar has led the Police to believe that no unsupervised contact is taking place. On balance, therefore, I find that no unsupervised contact with HTB has been sanctioned by the report and, to the extent that such contact is taking place, there has been no risk assessment undertaken of that contact either by the Police or the appropriate Local Authority.

8.              I recognise that the Police want a Local Authority risk assessment to be undertaken before the appellant enters the United Kingdom whereas Coventry City Council will only conduct a risk assessment after the appellant has moved into the area, and that the family might feel themselves in a 'Catch 22' situation. However, that is no reason to assume that the appellant is at no risk from his father. Furthermore, there has been no apparent attempt by the appellant or his representatives to commission their own independent risk assessment.

9.              Mr Bolakar continues to deny his guilt of the index offence, accepting only that he was convicted. His wife's evidence on the point was contradictory: she first said that the victim had not told Mr Bolakar that she was a child and then claimed that 'he didn't do it anyway - the thing did not happen'. All in all, I find that Mr Bolakar still takes no responsibility for his crime.

10.          As Judge Smith held, the evidence before the First-tier Tribunal was insufficient to rebut the paragraph S-EC.1.9(a) presumption. The new evidence takes the appellant's case no further than it was before the First-tier Tribunal. Mr Bolakar still takes no responsibility for his crime and so has not established that he poses no risk of reoffending. Neither has he provided any evidence of risk assessment or management in Turkey nor any evidence addressing the risk he poses the appellant in the United Kingdom. In short, he has not rebutted the presumption under paragraph S-EC.1.9(a) and so does not satisfy the requirements of the Immigration Rules.

11.          To the extant that it is necessary to consider Article 8 outside the rules (and I share Judge Smith's view that consideration within the Rules is the appropriate approach), I am unable in the circumstances to find that it is the best interests of the appellant to be admitted to the United Kingdom or that unjustifiably harsh consequences would follow from refusing his admittance. In short, I am satisfied that refusal in the circumstances was proportionate and so not unlawful as a breach of Article 8 ECHR.

12.          For these reasons, I dismiss the appeal.

Notice of Decision

1.        Pursuant to Upper Tribunal Judge Smith's decision, the decision of the First-tier Tribunal involved the making of a material error of law.

2.        I remake the decision by dismissing the appellant's appeal on all grounds.

 

 

 

Sean O'Brien

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

2 May 2025

 


Annex

 

 

 

 

 

 


IN THE UPPER TRI BUNAL

IMMIGRA TION AND ASYLUM CHAMBER

Case Nos: UI-202 3-00 56 15, U I-202 3-005 61 6

 

First-tier Tribunal Nos: HU/51562/2022,

 

HU/51559/2022

 

THE I MMIGRATION ACTS

 

Decision & Re asons Issued:

 

20/12/2024

 

Before

 

UPPER TRIBUNA L JUDGE STE PHEN SMI TH

 

Betwee n

 

The Entry Cl earance Officer

Appell ant

and

 

(1) IB

(2) N B

(ANONY MITY DIRE CTION IN FORCE)

Respondent s

 

Representation :

For the App ell ant: Mrs S. Simbi, S enior H ome Office Presen ting Officer

For the Respond ent : Ms E. Daykin, C ounsel, instructed by S tuart & C o. Solicitors

 

Heard at Birmingham Civil Justice Centre on 13 Septemb er 2024

 

 

DECISION AND R EA SONS

1. This is an appeal brou gh t by the Entry Clearance Officer against a decisi on of First-tier Tribunal Judge Young-Harry (" the judge ") dated 6 Oct ober 2022, in which sh e allowed tw o linke d appeals a gainst d eci sion s dated 22 F ebruar y 2022 to refuse th e appellan ts' hum an ri ght s claim s, made in the form of ap plicati ons for entry clear ance.

2. The judge heard the appeal under sec tion 82( 1) of the Na tion ality, I mmi gration and Asy lu m Act 20 02 (" the 20 02 Act "). The Entry Clearance Officer appeals with the permission of First- tier Tribunal Judge C ox.

3. Althou gh this is an ap peal by the Entry Clear ance Officer, I will refer t o the parties as the y were before the First- tier Tribunal.

4. This appeal c oncerns whether the judge erred in her approach to the appellants' fathe r' s convicti on for a seriou s sexual offence and its impact on whe ther the appellants met th e suitability requirem ents contained in para. S-EC .1.9.( a) of App end ix FM of the Im migrati on Rules.

Factu al backgroun d

5. IB, a boy bo rn in 2 012, and his sister NB, bo rn in 2002, are citiz ens of Turkey. On 3 Feb ruar y 2020, the y an d their mo ther, wh o is als o Turk ish, applie d for entr y clea ranc e sponsore d by their father, Must afa Bolakar ("the sp onsor"). The applicati ons were refu sed on the b asis tha t Mr Bolakar did not need the m ini mum income r equirem ent. They appeal ed. The appeals wer e allowed by Firs t-tier Tribunal Judge Kni ght by a decisi on promulg ated on 10 Au gust 20 21. Th e Entry Clear anc e Officer implemented Judg e Knight' s decisi on by r e-tak ing the decisi ons in relation to IB an d NB, refusing the ap plications, and b y gran tin g th eir mo ther entry clearance.

6. The Entry Clear anc e Officer issued re vised d ecisions in r elati on to IB and NB on 2 2 Feb ruar y 2022, which were the de cisions under challen ge before the judge.

7. The Entry Clear ance Officer said that the best in terests of the appell ants had be en taken int o account as a primary c onsidera tion pursuant to secti on 55 of the Borde rs, Citizen ship an d Immigrati on Act 2009. The d ecisi ons went on to refuse the app ell an ts' applicati ons on suitability grounds , und er paragraph S-EC.1 .9 of Append ix FM of the Immigration Rules. Th at paragraph provides :

"S-EC.1.9. The Secretary of State consi ders that the applicant's parent or parent' s partner poses a risk t o the applicant . Tha t person may be con sidered to p ose a ris k to the applic ant if, for example, they - -

(a) have a con victi on a s an adult, whe ther in the UK or overseas, for an off ence ag ainst a child;

(b) are a registere d s ex off ender an d have failed to compl y wi th an y notifica tion r equirem en ts; or

(c) are required to comply wi th a sexual risk order made under the An ti-Social B ehavi our, Crime and Policing Act 2014 and have failed to do so. "

8. The parallel r efu sal lette rs issued to IB and NB said that the Entry Clear ance Officer had relie d upon "informati on prov ided by West Midlands Police", wi th out fur ther elaboration.

9. Each r efu sal le tter contained the fo llowing parag raphs :

"I note tha t you h ave a pplied with your mo ther to jo in your fa ther in the UK an d that your mo ther's applicati on fo llowing your appeal has be en issued. This is because S-EC. 1 .9. of A ppend ix FM does not apply to adults."

"We are aware that this decisi on will poten tiall y result in y our mo ther tr avelling to the UK withou t you, howe ver as s tated abov e, we hav e a duty of care to you under S55 and are not s atisfied that y ou w ould not be at risk sh ould you come to the UK."

10. The appellan ts appeale d and th eir appeals wer e linked . In the Resp ond ent' s Revi ew b efore the First- tier Tribunal, the Entry Clearance Offic er provided further reas ons and e vidence for relyin g on para. S-EC.1. 9. The Re view ann exed a copy of a Notifica tion Order issued unde r the S exu al Off ences Act 2003 issued by the C oventry Ma gistrate s' C ourt for an ind efinite period. Mr Bolakar had been c onvicted on 1 Jun e 2011 before the Aksaray Heavy Pen al Cour t (14 th Criminal Chambe r) in Turkey for the domes tic equivalent offence of sexual activity wi th a child , an off ence liste d in Schedule 3 to th e Act. The effec t of the orde r was to su bjec t M r Bolakar to th e no tificati on requirem ents of the S exual Off ences Act 2003 indefinitely.

11. The Respondent's Revi ew also said that para. S-EC.1.9( a) was a more appropriate ground fo r refus al in the appellant s' cases.

Decision of t he First-tier Tribunal

12. In her decisi on, the judg e found that, since NB h ad attained the age of m ajority by the time th e appeal b efore her was h eard, para. S-EC.1.9 . was incapa ble of being enga ged. Since that was the only ground for refu sal, she all owed NB's ap peal .

13. In relation to IB, the jud ge accepted tha t para. S- EC.1.9. was engaged: s ee para. 14. That m ean t that the appeal c ould not be all owed on the basis that the Immigrati on Rules were me t, neces sitating a proporti onality analysis ou tside the rules.

14. The judge f ound tha t IB's con tinued separati on f rom his parent s w ould n ot promote his well- being or developm ent. He needed the care, guidance and support of his parents in the UK. She f ound tha t the not ificati on order applicable to Mr Bolakar, in particular its monitorin g requirement s, were a protective factor. At para. 16 she held:

"There is no suggesti on that the sp onsor present s a risk to his children currently . Neither is it sugg ested that the sp onsor has rec eived any fur ther c onvictions o r committed any o ther off ences of this nature . H e h as remained invo lved in the lives of the appellants since his convic tion and there is no e vidence tha t ther e h ave be en any c once rns in this reg ard."

15. The judge added , at par a. 17:

"There is no suggesti on that the sp onsor present s a risk to his children currently .

Neither is it sugg ested that the sp onsor has rec eived any fur ther c onvictions o r committed any o ther off ences of this nature . H e h as remained invo lved in the lives of the appellants since his convic tion and there is no e vidence tha t ther e h ave be en any c once rns in this reg ard."

16. The judg e f oun d that I B had sh own "comp elling r easons" why the bal anc e tipped in his fav our . She f ound that the app ellant s' famil y life c on sid erations ou twei ghed the public interes t in the case, and that the deci si ons amounted to a dispr oportionate interfer ence wi th the appellants' Article 8 ri ghts.

17. The judge allowe d bo th appeals.

Issue s on appe al to the Upper T ribun al

18. There are two gr oun ds of appeal:

a. Groun d 1: th e judg e erred by failing t o apply par a. S-EC.1.9 . correc tly, by conclud in g that it did not ap ply in r elati on to an a dult applic ant, namely NB. It did a pply to her , and the ju dge sh ould h ave dismissed her appeal on that basis. Also, having f oun d that the paragraph was engaged in relation to IB, it was an error of law to allow hi s appeal; it is a m andatory ground for refus al, and should have overridden the judg e' s proportionality assessm ent.

b. Ground 2: the judg e's conclusi on that the sp onsor did not pose a risk to eithe r appellant was irrati onal. The sp onsor is subje ct to the not ific ati on requi rements of the S exual Off ences Act 2003 ind efinitel y. There was no indep endent or othe r appropriate evid ence b efore th e judge whi ch r ation ally permit ted the conclusi on reached b y the judge th at the sp onsor did not po se a safety risk to the ap pell ants.

19. Expan ding on the grounds of appeal, Mrs Si mbi submitted that, in r elati on to ground 1 conce rning NB, it was inconsistent for the jud ge to allow the appeal under the rules applicabl e to children , on the one hand, while c onclu din g that S-EC.1.9 . was incapa ble of applicati on in relation to her since she was an adult, on the other. NB should either ha ve been treated as an adult for all purposes , or as a chil d for all purpo ses. The judg e was wrong to adopt a hybri d approach .

20. In relati on to ground 2, Mrs Simbi submitted that there was in sufficient evidence before th e judge to merit the conclusi on that Mr Bolakar did not represent a risk to IB or NB. It was irration al to draw th at c onclusi on s olely from his evidence. He had not no tified the au thoritie s monitoring his compliance wi th the not ific ati on requiremen ts or relied on any expert e videnc e of th e sort that w oul d ordinarily be expec ted when addres sing the risk posed by a c on victe d child sex offen der to another child. Moreover, it would not be disproportionate to ma inta in the sta tus quo. The sp onsor has made the choice to relocate to the United Kingdo m; it was he r actions in h aving d one so tha t le d to th e prospe ct of her childr en, or jus t IB, living wi th ou t parental support in Tur key.

21. On b ehalf of the appell ants, Ms Daykin relied on her skelet on ar gument dated 12 Septembe r 2024. Addressing gr ound 1, Ms Daykin sub mitted, in summary, that th e issu e of suitabilit y was not tied to the position at the date of the applicati on. The judge was required to apply th e suitability criteria as th ey applied at the date of the hearing, and did so in terms open to her , in relation to NB .

22. In relati on to gr ound 2, Ms Dayk in submitted that the Secretary of State's guid ance concernin g para. S-EC.1.9., F amily life (as a partner or parent) and exceptional circ umstances, versi on 18 (" th e Guid ance ") implied th at sub-paragraph ( a) ap plies only t o th e comm ission of non-s exual off ences ag ainst childr en. Sub-paragra phs (b) and (c) ma de provisi on fo r sex offen ders and are restricted to a failur e to comply with no tification r equirements under the Sexu al Offence s Act 2003, or the f ailure t o comply with a s exu al ri sk order.

23. Moreover, Ms Daykin submi tted that the Entry Clearance Officer had not provided furthe r evidence pertaining to the alleged risk posed b y Mr Bolakar to his children. The guid ance doe s not require applican ts to sub mit a particular type of evid ence to rebut the presumpti on unde r S-EC.1.9. It was not an error for the judge not to have regard to guid ance or evidence which the Entry Cl earance Officer's own operati onal guid anc e did not r equire. The gui dance was based on th e premise tha t an offende r's risk profile and circumst ance s c oul d ch ange. Th e jud g e was accordin gly entitled to find that there had be en such a ch ange in ci rcumstances here.

Relevant leg al pri nci pl es

24. The appell ant s' applications for entry clearance amoun ted to human ri gh ts claims wi thin th e meaning of the term as defined in sec tion 1 13( 1) of the 2002 Act. The sole ground of appeal before the First- tier Tribunal was that the decisi on to refuse the appellant s entry to the Unite d Kingdo m w ould be unl awful under sec tion 6 of the Hu man Ri ghts Act 1 998: see s ecti on 84(2).

25. For the deci sion to refuse to admit either app ellant to be so unlawful , it would h ave to contrav ene the require ments of Article 8 of Euro pean Con ven tion on Hu man Righ ts, the term s of which are well kn own.

26. As Baroness Hale explained in R (oao Bibi) v S ecretary of State for the Home Department [201 5] UKSC 68 at [25] to [2 9], and in R (oao MM (L ebanon)) v S ecretary of State for the Home Departme nt [201 7] UKSC 10 at [38] and [40] to [44], the Europ ean Court of Hum an Ri ghts has d istinguished betwe en th e neg ative and positive ob ligati on s i mposed by Article 8 of the ECHR. C ontractin g parties to the E CHR are su bject to nega tive ob li gations not to interfere with the private an d family lives of settled migrants, o ther th an as m ay be justified under the derogation c ontaine d in Articl e 8( 2) . B y c ontr ast, in case s c once rnin g the admission of migr ant s wi th no such rights, the e ssen tial ques tion is whe ther th e hos t stat e is subj ect t o a pos itive ob ligati on to facilitat e their entry. In pos itive obliga tion cases , th e questi on is whe ther the host c ountry has an obligati on toward s the migrant, rathe r than whe ther it can jus tif y th e interf erence under Article 8(2) . Bu t the principle s concernin g negativ e and positive o bliga tion s are similar. As th e Strasbourg C ourt h eld in Gül v Switzerla nd (1 996) 22 EHRR 93:

"In bo th cont exts rega rd must be had to the f air balance th at has to be struc k betwe en the competing interests of the ind ivi dual and of the com munity as a who le; and in bo th con texts the state enjoys a c ertain marg in of appreci ation ..." (paragraph 1 06)

27. The best interests of a child are a primary conside ration wh en interpreting ECHIR rights. Th e best interest s of a chil d aff ect the balancing exercising in deter mining whe ther a deci si on invo lves an interfer ence wi th a chil d's private life or family life interests which is proportionat e to a legi timate aim id entified in Article 8(2) .

Ground 1: No error in t he judge's finding that paragraph S-EC.1.9.(a) ap plies only to children

28. This gr oun d of appeal is relevan t only to N B's ap peal sinc e she had at taine d th e age of m ajorit y by the time the de cisi on was tak en and the appe al before Judg e Young-H arry was h eard.

29. I con sider th at this ground is not made out becau se, in summary:

a. Properly understood, p ara. S-EC.1.9 .(a) ap plies only to child applicants;

b. Where a child applicant has tu rned 18 by the da te of a hearing b efore th e First-tie r Tribunal, para. S-E C.1. 9. will no longe r be ca pable of b ein g engaged , since th e mischief at which the provisi on is aimed (the ris k posed by a kn own a dult in the UK to a child applic ant) will no l onger be pres ent in the same way ;

c. The judge was en titled t o find that, since para. S- EC.1.9.(a) was not engag ed, the sol e ground for refusal in NB's cas e had fallen away, and did not fall int o error by allo wing the appe al.

30. As m enti oned above, the Responden t's Re view r efined the Entry Cl earance Officer's reas onin g in relati on to para. S-EC. 1.9., by relying expressly on sub-paragraph (a). Th e original decisi ons , somewhat c onfu sin gly, referred to sub-paragraphs ( b) an d (c), whil e adop ting re asonin g tha t fell squarely wi thin sub-paragraph ( a). An y am biguit y in that respect was clarified b efore th e First-tie r Tribun al, and it is no w clear that th e c entral issu e under this gr oun d is whe ther the judge was wrong to c onclude that para. S-EC.1. 9.(a) c ould not be engag ed in relation to N B since sh e was no l onger a child.

31. Mrs Simbi's sub missi on that para. S-EC.1.9. is not restricted to chil dren is supe rficiall y attractive . The paragra ph doe s not , in terms , res trict its scop e to child a pplicants. H owever , wh en the wording of the word is exam ined by reference to the bro ader context and th e Secretary of S tate' s use of th e provisi on (includ ing in th e refusal letter s und er ch all enge in th es e proceeding s), it is clear that para. S-EC.1.9 .(a) a pplies only to child applicants.

32. In Odelola v S ecretary of State for the Home Departme nt [ 2009] UKHL 25 , [ 2009] 1 WLR 1 230 at para. 4, Lord H off man summarise d th e task of constructing a pro visi on of th e Immigra tion Rules in these term s:

"Like any o ther ques tion of c onst ructi on, this d epends upon the langua ge of the rule, c onst rued ag ain st the relev ant backgr ound. That invol ves a c onsi deration of the immigrati on rules as a whole an d the functi on which the y ser ve in th e administrati on of immi gration po licy. "

33. In Mahad [200 9] UKSC 16, Lord Brown s aid at pa ra. 10 :

"The Rules are no t to be c onst rued wi th all the stric tnes s applicabl e to th e

const ructi on of a sta tut e or a sta tutory inst rum en t but, instea d, s ensibly according to the na tural and ordin ary meaning of the words used, reco gnising that they ar e statemen ts of the Secre t ary of State's adm inistrative policy. "

34. Para. S-EC.1 .9. stan ds apart from the other suitability requirem ents c ontained in paras S- EC.1.2. to 1.8. Those suitability requirem ents focus on the risk posed by an applic ant, o r suitability reasons arising from an applicant per sonall y. By contrast, par a. S-EC.1.9. looks t o the broader circumst ances of an applic ant, and the c ont ext into whi ch the applicant will be admitted, if entry clear ance is gr anted. Para. S- EC.1.9. looks at a risk po sed to an applicant if the applic ant is gr anted entry clearance. It is a p rovisi on aimed at safegu arding an applicant .

35. The ordinary m eaning of the word ing of para. S-EC.1.9. invokes familial conce rns of the so r t likely to a rise from a per son in th e h ous ehold in which an applicant will re side if gr anted entr y clearance. The referenc e to a parent of the applicant, or the partner of a parent, sug gests th at the fo cus of the risk is likely t o b e a pers on in a positi on of t rus t or authority wi thin th e hou sehol d. In turn , th at implies tha t the fo cus of the prov isi on is a child or an o the rwis e vulnera ble applicant.

36. Para. 1.9 .(a)'s fo cus on childr en is c onfirmed b y the terms of para. S- EC.1.9.(a) itself. It is engaged where the Secr etary of Stat e c onsidered that the applican t's paren t or paren t's par tne r poses a risk t o th e applicant a s a re sult of a con viction a gainst a child. Off ences committe d by adults aga inst children engage particular risk c onsidera tions, includ ing the a buse of trust o r power or another form of power imbal ance, and, as childr en, the victi ms of such off ences ar e particularly vulnerable. The gener al risk profile of off enders ag ain st children means th at, in principle, the ordinary meaning of the rule, const rued ag ainst the relev ant background and th e Secretary of Stat e's co mmitmen t t o safe guard ing childr en (primaril y through the s ecti on 5 5 duty) , should be rea d a s focussing on th e ris k po sed to a child applic ant by a pers on who has previousl y commit ted an off ence a gainst a child.

37. This interpretati on is c onsistent wi th the Guid ance. A t page 18 of the v ersion in force at th e date of the hearing befo re the judg e, th e guidanc e states:

"The purpose of paragr aph S-EC.1.9. of Append ix FM is to enable Entry C learanc e Officers to make deci sions consistent with the need to safeguard childr en where entry clear ance ap plications invo lving childr en raise child welfare or chil d protection issues. "

38. While the ro le of guid ance in deter minin g the m eaning of a rule is limite d (for example, se e R (Afzal) v S ecretary of State for t he Home Departme nt [202 3] UKSC 46 at para. 80), my conclusi on as to the meaning of the rules is fortified by the Secretary of Stat e's guid ance on the po int .

39. This interpreta tion is al so con sistent with th e a pproach of the Entry Clearance Officer in the decisi ons under ch all en ge in these procee din gs: see para. 9, abov e.

40. I ther efore fin d that the judg e was ri ght t o c onclude tha t para. S-E C.1.9 .(a) di d no t appl y t o adults. The f ocu s of th e provision is clearl y on the ris k posed by a child's parent, or thei r partner, to a child applicant, in li ght of the pre vi ous com missi on of off ences by such an a dult again st a child, any whe re in the world. That is the approach the Secretary of State's guid anc e takes, and the explanation giv en by the decisi on letters in these proce edings for why th e appellants' mo ther was granted entry clear anc e.

41. Sinc e the mischief a t which para. S-EC .1.9.(a) is aimed i s to protect childr en, it foll ows tha t if a child h as attained the a ge of 18 by the time the Fi rst-tier Tribunal d ecides for itself whether th e decisi on of the Entry Cl earance Officer was unlawful under sec tion 6 of the Human Righ ts Act 1998, the provisi on will not be capable of being engaged. This conclusi on is con sistent with the risk-fo cussed na ture of para. S-EC.1.9(a). Ris k is, by its very na ture, an inher ently d ynam ic concept . Th e risk target ed by the provi sion will h ave subside d where an a pplicant is 18 or o ver at the date of assess ment. The con siderati ons which underpin th e applicati on of th e subparagra ph no longer apply in r elati on to an a dult.

42. I do not consider that M rs Simbi's sub missi ons a bout NB ben efiting from the rules relating to children, once she had turned 18, to detract fr om this c onclu sion. It is well es tablished that a child applicant under Immigrati on Rules, such as those under c on sideration in thes e proceedings , who ha s tu rned 18 is entitled t o have their applicati on c onsid ered under the rule s applicable at the da te of the applicati on. Since para. S-EC. 1. 9 (a) is based on a dyna mic c oncep t of risk, there w ould be an artificiality to ap plyin g the provisi on to an a dult on the pre mise tha t she was still a child . Th e remainin g provisi on s of th e rules whi ch are applicabl e in N B's cas e related to her po siti on a t the d ate of applicati on. The jud ge' s unchallen ged fin din gs in r elati on to th e remaining prov isions of the Immigrati on Rules were tha t the Ent ry Clear ance Office r had not relied on any o ther reasons to refuse NB's application. Since the judge was right t o conclude that para. S- EC.1.9.( a) c ould not be engaged in relation to an adult at the date of assessm ent, she was entitled to a llow the NB's a ppeal for the reas ons she gave .

43. For those reas ons, the judge did n ot f all into error by all owing NB's app eal on this b asis. This ground of appeal is di smissed, and the Entry Clearance Officer's ap peal in NB's case is therefore dismissed.

Ground 2:

44. The appeal will succe ed on this ground in relati on to IB.

45. I c onclud e that th e judg e was ri ght to accep t th at para. S-EC.1 .9.( a) was engaged in r elati on to IB.

46. Contrary to Ms Day kin's sub missi on, nothing in para. S-EC. 1.9.( a) limits its scope t o n on- sexual offences. A s exual off ence aga inst a child is an offence ag ainst a child , within the meaning of sub-para . ( a) . I t w oul d b e ab surd if p ara. S-EC.1.9 . was not en gaged b y subst antiv e sexual off enc es aga ins t childr en but w ould be engaged in relation to bre aches of ancillary an d other orders r elating t o sexu al off ences , unde r sub-paras ( b) and (c), as submitte d b y Ms Daykin. In any ev ent, sub- paras (a) to (c) are n on- exhaustive, ind icati ve examples. There is no ambi guity in the rule such that it is nece ssar y or permissible to look to the terms of th e Secretary of State's guid ance on the issue. The ju dge was ther efore right to conclude that para . S-EC.1.9.(a) was engage d.

47. It may have b een more accurate for the jud ge to have c onsidered whe ther Mr Bolakar ha d rebutted any pre sumption applicable under pa ra. S-EC.1.9 .(a), since tha t is the approach th e Secretary of State takes t o decid ing whether she "considers" that the relev ant adult poses a ris k to the applicant. In ap plying the provisi on as pa rt of a full-merits app eal, the judge ess en tiall y (and ri ghtly, in this con text) stepped into the sh oes of the Secretary of State, and decided fo r herself whether Mr Bolakar posed a risk to IB. She f ound that he did no t. Alth ou gh for th e reasons set ou t bel ow, I respectfully con sider that the jud ge erred in h er approach to th e subs tan tive questi on of risk, st ructurally the correct approach w oul d hav e be en t o h ave determined whe ther the appellant had re butted the S-EC.1.9 .(a) pre sump tion, rather th an to con duct an " outsid e the rules" a risk assessm ent tha t sh oul d hav e be en c onducted under th e auspices of para. S-EC.1 .9.(a). No thing tu rns on this, but it will be relev ant to the approach I take to remaking the decisi on under s ecti on 12(2)( b)(ii) of the Tribunals, C ourts an d Enforcem ent Act 2007 (" the 200 7 Act"), pur su ant to the dire ctions I gi ve below.

48. I respectfully c onclude that there was in sufficient evid ence before th e judge to merit th e fin ding that admitting IB to live with a c onvict ed child s ex off ender who was su bject to th e notifica tion requirem en ts of the S exual Offenc es Act 200 3 indefinitel y ("th e Not ific ati on Requirement s") would not represent a risk to him. There was no e vid ence from a suitabl y qualified profes sional or the relev ant local authority child protection team about an y prospective risk posed by Mr Bolakar to IB. Taking the best interests of IB as a primar y consider ation, it is d ifficult to see how the Unit ed Kingdom c ould be said to owe a positive obligati on under Ar ticle 8 ECHR to IB, and his f amily in the United Kin gdom, to facilitate his admissi on in the absenc e of in depend en t evid ence demonstrating tha t his fa ther, a c on victe d child sex off ender, did not present a risk to him. While the judge was en titled to ascribe some wei ght to the repe ated visits to Turkey that Mr B olakar had mad e, th at was not dispo sitive of the issue. Ther e was n o evidence b efore the jud ge as to whether th e Tur kish au thorities ha d taken any protective ste ps in relati on to Mr Bolakar during those visits, or any an alysis from a suitably qu alified prof ession al wi th exper tise in child protecti on and welfare matters. Of course, it may have be en the case that, had the relevant local authority been provided with th e opportunit y to a ssess Mr Bolakar, the c onclu sion s reached w ould hav e be en fav ourabl e to him . The difficulty, h owever, is th at there was no e vi dence of that sort b efore the judge .

49. There was, in fact, very little evid enc e b efore the judge pert ainin g to th e circumst ance s of M r Bolakar's off end ing. Th ere was som e evid enc e f rom Mr Bolakar him self (see para. 2 of his wi tnes s statem en t date d 22 April 2022), bu t he simply d enie d th e off enc e and sou gh t to blame the victi m's fa mily. It is difficult to see how Mr Bolakar's c ontinue d refus al to acce p t responsi bilit y for comm ittin g an offence of this nature, cou pled wi th his attempt to place th e blame on o thers, c ould r ation ally h ave led to the conclusi on that he no lon ger represents a ris k of reoff end ing, in the ab sence of other evid ence addressing his risk.

50. I also c onsider that the judg e's approa ch to, and reliance up on, the protective framewor k provided by the Notifica tion Requirem ents was flawed. The Notificati on Requiremen ts en abl e the appropriate au thorities to take ste ps after a ch ange in a s ex off en der's li ving or o the r arrangements h as oc curred. They do not provide advance protecti on, or prior safe guard ing o r vettin g ah ead of a child residing with Mr Bolakar .

51. Finally, it was an abrog ation of resp onsibility for the judge to conclude (a t para. 17) that " an y conce rns can be addres sed by the inv olvem ent of relev ant and appropriate agencies, and if deemed neces sary, safe guard ing mea sures can be implemented". It was for the judge to b e satisfied on the ba sis of appropriate evidence that no such risk existed bef ore IB is admitted t o the c ountry. The poten tial availability of ex- post facto in-c ountry over sight and super visi on tha t would only be engage d after IB's arrival as a prot ective factor is n ot a factor that was ra tion all y capable of tipping the b alance in fav our of admitting IB, in the circumst ances of this case.

52. Ordinarily this app ella te tribunal would be sl ow to find that an expe rt (and, in this case , experienced) judge of the First-tier Tribun al made an error of law in the course of con ductin g a multi-f actorial ev alua tive a ssessm ent of th e s ort at play in these proc eedings . H owever , drawin g this anal ysis t ogether, b earin g in m ind the prim acy of th e best interests of the chil d and the need to tak e a p rotective approach , I c on sider th at the judg e's an alysis was flawed for the reas ons set out abov e.

53. I therefore all ow the ap peal under ground 2 in r elation to IB .

Setting aside t he de cisi on of the First-ti er Trib unal

54. I set aside the decisi on of the First-tier Tribunal insofar as it relates to I B' s appeal. I preserv e the judg e's fin din gs and analy sis in relation to NB's appeal.

55. I consider th at it is appropriate to retain the proceedin gs in the Uppe r Tribun al. I hav e preserved part of the d ecisi on of the judge. I d o not c onsider that it w ould be appropriate t o remit IB's case t o the F irst-tier Tribunal. The appeals should rem ain linked, wi th IB's cas e being r eheard in this tribunal, under secti on 1 2(2)(b)(ii) of the 2007 Act.

56. I give dire ctions bel ow for the remak ing of the appeal.

 

Anonymity

57. I do n ot c onside r th at it is n ecessary t o ma intain the an onymity order in r elati on to th e sec ond appellant NB since sh e has n ow attaine d th e ag e of m ajority . I B sh oul d remain anony mised , since he is a child. I a m therefore min ded to revoke the an onymity ord er that is in fo rce in relation to NB, while ma intaining the order in relation IB. Since I have dir ected that this matt er be reheard in the Up per Tribunal, any such revocati on w ould t ake effect foll owing th e promulgati on of that decision. A party wishing to make sub missi ons on this issue may do so at the re sumed hearing.

58. It is no t n ecessary to maint ain the order to the exten t it prohibits identific ation of th e appellants' fam ily. I vary the order that exten t.

Notice of D ecisio n

The Entry Cl earance Officer' s appeal in the case of NB is di smissed . Th e deci sion of th e First-tie r Tribunal in N B's cas e d id not invo lve the mak in g of an error of l aw such that it mu st be set aside.

The decisi on of First-tier Tribunal Judge Y oung-Harry in the mat ter of IB involved th e making of an error of law and i s set a side.

The decisi on in IB's app eal will be remade in the Upper Tribunal, acting under secti on 12( 2)(b)(ii) of the Tribunals, C ourts and Enforce ment Act 2007. I give the foll owing di rections in relation t o IB' s appeal :

1. The decisi on will be re made in the Upper Tribunal with a time estimat e of t hree ho urs on a date to be not ified.

2. If an interpreter will b e required for the re su med hearing for the sp onsor, the ap pellant (thr ough his legal te am) must inform the tribunal as soon as possi ble, and in any event withi n 28 days of being sent this decision.

3. If th e app ella nt wishes to rely on an y additi on al evidence, he must file and serve the e vidence on which he wishes to rely, al ong with an application to rely on it und er rule 1 5(2A) of th e Tribunal Pro cedure (Up per Tribun al) Rules 2008 to rely on it within 28 da ys of being sent this decision .

4. The appellant mu st file and serve a s kelet on a rgum ent wit hin 28 da ys of being se nt t his decision .

5. The Entry Cleara nce Officer/Se cret ary of State must file and serve a skeleton ar gum en t within 4 2 days of being sent this decision .

 

 

Stephen H S mith

 

Judge of the Upper Tribunal

Immigrati on an d As ylum Chamber

 

27 Nov ember 24

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