(Immigration and Asylum Chamber)
T (s.55 BCIA 2009 – entry clearance) Jamaica  UKUT 00483(IAC)
THE IMMIGRATION ACTS
Heard at Field House
On 29 November 2011
MR JUSTICE BLAKE, PRESIDENT
UPPER TRIBUNAL JUDGE PERKINS
ENTRY CLEARANCE OFFICER-KINGSTON
For the Appellant: Mr G Saunders, Senior Home Office Presenting Officer
For the Respondent: Mr I Palmer, instructed by Immigration UK Partnership
(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.
A copy of the statutory guidance “Every Child Matters, Change for Children” issued by the United Kingdom Border Agency in November 2009 and referred to in paragraph 18 of this determination, can be accessed at the following link:
DECISION AND DIRECTIONS
1. This is a case concerned with a child born on 12 December 1995 in Jamaica who at the time of the hearing before us was a few days short of her 16th birthday. We will direct that she should be referred to as T and there shall be no publication of her name and address or that of her mother to whom we shall refer as C.
2. The subject matter is an appeal against the decision of the Entry Clearance Officer, Kingston to refuse to issue T with entry clearance to join C in the United Kingdom under paragraph 298 of the Immigration Rules HC 395. The ECO, Kingston was originally the respondent to T’s appeal but is now the appellant before us. For the avoidance of confusion we will call the ECO the defendant. The case was listed before us with the Secretary of State as the appellant, but although the ECO acts pursuant to instructions issued by the Secretary of State we conclude that the ECO is the proper party to this appeal and accordingly appears as such in the title to this determination.
3. On 7 July 2011 Judge VA Osborne determined the appeal on a preliminary point without hearing any evidence or making any findings of fact. She allowed the appeal to the extent that it was remitted to the Entry Clearance Officer to give proper consideration to matters arising under s.55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The defendant sought permission to appeal on the basis that the s.55 duty did not apply to the ECO. Permission was granted on 1 August 2011 and directions were issued by Upper Tribunal Judge Freeman on 30 August 2011 when he indicated his view that “the judge was clearly wrong not to deal with the case herself” and that the Upper Tribunal was likely to re-make the decision without any further evidence.
4. The issues before us are:-
a. Did the First-tier Tribunal Judge make a material error of law in reaching the conclusions that she did?
b. If so, what should now be done to determine this appeal?
The outline facts
“(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom; and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in sub-section (1) are-
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c ) any customs function of the Secretary of State; and
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).”
Subsections (4) and (5) impose similar duties on the Director of Border Revenue.
“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 present welfare needs that require attention.”
“This page contains guidance for entry clearance officers on what to consider when an applicant under the age of 18 applies for entry clearance without the permission of their parent(s) or legal guardian. This relates to general reasons for refusing under paragraph 320(16) of the rules.
You must carefully consider your statutory duty to children, under section 55 of the Borders Citizenship and Immigration Act 2009 before you apply the instructions in this guidance either to children or people with children”.
We accept that “law” in this context includes the duty to act fairly which in turn includes the duty to have regard to policies that are material to the decision in question.
a. The duty to assess the application under the Immigration Rules including whether there any compelling reasons why T should not be excluded from joining C in the UK. This may well include the mother’s suggestion that T had not been properly looked after by her father, has been the victim of a sexual assault while in the father’s care, is underperforming at school because of lack of such care, and has been moved to other temporary guardians through absence of an appropriate quality of care to a vulnerable teenager.
b. The duty on the ECO to act compatibly with T and C’s Article 8 rights and to grant entry clearance if an assessment of what those rights required indicated that this was necessary.
Error of Law
Directions for remaking
Mr Justice Blake
President of the Upper Tribunal
Immigration and Asylum Chamber
Appendix A - Extracts from ZH (Tanzania)
Consulting the children
"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
"Separate consideration and separate representation are, however, two different things. Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required. If the Child and Family Court Advisory and Support Service or, more probably, the local children's services authority can be persuaded to help in difficult cases, then so much the better. But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for."
"in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child's views are transmitted correctly to the decision-maker by the representative."
Children can sometimes surprise one.