Upper Tribunal (Immigration and Asylum Chamber)

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URL: http://www.bailii.org/uk/cases/UKUT/IAC/2013/00380_ukut_iac_2013_ma_sm_iran.html
Cite as: [2013] UKUT 380

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Upper Tribunal

(Immigration and Asylum Chamber)

MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC)

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On 25 June 2013
	…………………………………

Before

UPPER TRIBUNAL JUDGE DAWSON

UPPER TRIBUNAL JUDGE O’CONNOR

Between

(Anonymity direction made) Appellant

and

ENTRY CLEARANCE OFFICER - ISTANBUL

Respondent

Between

(Anonymity direction made) Appellant

and

ENTRY CLEARANCE OFFICER - BANGKOK

Respondent

Representation:

For the Appellant in the first appeal: Mr Chukwudolue of Moorehouse Solicitors

For the Appellant in the second appeal: The Sponsor, M

For the Respondents: Mr P Deller, Senior Presenting Officer

(1) In EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.

(2) The above conclusion is fortified by the terms of The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560), brought into force on 8 November 2012. Paragraphs 2 and 3 of the Schedule to the Regulations give effect to the CJEU’s decision in Zambrano by amending regulations 11 and 15A of the Immigration (European Economic Area) Regulations 2006 in order to confer rights of entry and residence on the primary carer of a British citizen who is joining the British citizen in, or accompanying the British citizen to [regulations 11(5)(e) and 15A(4A)], the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State.

DETERMINATION AND REASONS

INTRODUCTION

1. We make an anonymity direction in both appeals. They each include consideration of the interests of a minor and, in the first appeal, the sponsor, who although now a British citizen, has been accepted to be a Refugee and is currently a vulnerable person. Such directions are to remain in place unless or until this Tribunal, or any other appropriate Court, directs otherwise. As such, no report of these proceedings shall directly, or indirectly, identify the appellants or any members of their family. Failure to comply with this direction could amount to a contempt of court.

2. With the consent of the parties, this conjoined determination sets out our reasons and decisions in the appeals in the Upper Tribunal. They are conjoined because of certain issues which are common to them, as follows:

(i) the reach of the Zambrano v Office national de l’emploi (Case C-34/09) principles to minor European citizens who have never entered the Union; and

(ii) the correct approach under Article 8 in such situations taking account of the respondent’s concession reiterated in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC) which is referred to below.

3. The first named appellant, an Iranian national, lives in Turkey with AP her British citizen child, who was born in 2009. She had applied for entry clearance to join her husband and father of AP, P, whom she married in Turkey on 20June 2007. P was naturalised in 2008 as a British citizen after being granted indefinite leave to remain in the United Kingdom as a refugee from Iran in 2004. This appellant’s application for entry clearance was refused by an Entry Clearance Officer on 13 February 2012 on the grounds that (i) her marriage was not subsisting, (ii) the parties to the marriage did not intend to live permanently together and also on (iii) maintenance and

(iv) accommodation grounds. Her appeal was dismissed by First-tier Tribunal Judge R. G. Walters for reasons given in a determination promulgated on 15 November 2012. The judge accepted that the appellant’s marriage was subsisting and the parties intended to live together, but concluded that she did not meet the accommodation and maintenance requirements of the Rules. The judge also concluded the Entry Clearance Officer’s decision would not lead to a breach of the appellant’s Article 8 ECHR rights.

4. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker on 10 April 2013. The appeal first came before Upper Tribunal Judge O’Connor on 3 May 2013, who, by way of a decision dated 9 May 2013, set aside the First-tier Tribunal’s determination, having concluded that an error on a point of law in relation to its consideration of Article 8 ECHR had been made. The reasons given for this conclusion are attached hereto as Appendix I.

5. The appellant in the second appeal is a national of Thailand where she was born in 1973. She married M (the sponsor) in Thailand on 24 April 2007. He is a British citizen by birth born in 1975. The couple have two British citizen children, JM born in 2004 and FM born in 2007. JM lives with the sponsor in the United Kingdom. FM remains with his mother in Thailand. The application by the appellant in the second appeal was refused on maintenance and accommodation grounds on 7 June 2012.

6. First-tier Tribunal Judge Grimshaw determined the appeal without a hearing (as requested by the appellant) which she dismissed under the Immigration Rules and on Article 8 grounds. The appeal came before Upper Tribunal Judge O’Connor on 3 June 2013, who, by way of a decision of the same date, set aside the First-tier Tribunal’s determination, having concluded that an error on a point of law in relation to its consideration of Article 8 ECHR had been made. The reasons given by Judge O’Connor for this conclusion are attached hereto at Appendix II.

7. In both appeals, Upper Tribunal Judge O’Connor gave directions to the parties requiring skeleton arguments, in particular on the issue of whether it is unlawful and therefore unreasonable to expect a British citizen child (and therefore European citizen child) who has never lived within the European Union to remain outside of the Union. The submissions were also to address (i) the Secretary of State’s concession in the decision of Izuazu, and (ii) the decisions in Dereci & Others [2012] EUECJ C-256/11 and Zambrano.

8. Unfortunately neither Mr Chukwudolue nor Mr Deller complied with that direction within the time limited by Judge O’Connor, but both provided skeleton arguments on the day of the hearing before the Upper Tribunal. Mrs SM’s appeal had been listed for 2 o’clock. The sponsor was, however, able to attend the hearing earlier and participated fully after Mr Chukwudolue had made his submissions.

FINDINGS OF FACT RELATING TO THE FIRST APPEAL

9. We remind ourselves that as the decision under appeal is one refusing entry clearance, pursuant to s.85 and s.85A of the Nationality, Immigration and Asylum Act 2002 we are constrained to considering the circumstances as they appertained as of the date of the refusal of Entry Clearance i.e. 13 February 2012.

10. The following facts in the first appeal are not in dispute.

11. The appellant is an Iranian national and has been residing in Turkey since 2007. She was granted a residence permit by the Turkish authorities on 30 September 2008. She and P married in Ankara, Turkey on 20 June 2007. She initially made an application for entry clearance to join her husband in the United Kingdom in 2007, however the Embassy refused to accept such application, indicating that the appellant was required to lodge it with the embassy in her homeland.

12. The appellant works in Turkey as a translator, and has been awarded a Bachelors of Religious Studies from the Nations University, Louisiana, U.S.A. She can speak and write English fluently.

13. AP has lived with the appellant since birth, save for a short period spent in the United Kingdom with his father, a time we make further reference to below.

14. As we have noted already, P is from Iran. He entered the United Kingdom in January 2003, was granted Indefinite Leave to Remain, as a refugee, on 7 April 2004 and was naturalised as a British citizen on the 21 February 2008. His asylum claim was based on the fact that he had, on 4 occasions, been imprisoned and subjected to ill treatment in Iran; the first occasion, for 6 months, being brought about by his refusal during his military service to kill persons suspected of being in the drug industry, and the subsequent occasions, for 2 months, 1 ½ years and 2 weeks, being as a consequence of his involvement in political protests.

15. He visits the appellant in Turkey on an annual basis, although he did so twice in 2011; his last visit prior to the decision under appeal being in December 2011. He and the appellant speak regularly, both on the telephone and Skype. He lives in a 1 bedroom flat, but Croydon Council have indicated to him that, upon the arrival of the appellant and his son, he would be provided with larger accommodation. He is not in employment, and receives Employment Support Allowance.

16. Dr Mohamed Abdelghani, a Consultant Psychiatrist with the South London and Maudsley NHS Foundation Trust, wrote on the 21 December 2011 in relation to P’s mental health, confirming that he has been diagnosed with Post Traumatic Stress Disorder for which he takes Olanzapine and Mirtazapine on a daily basis. The letter further observes that he suffers from poor concentration and low energy levels, hears the voice of one of the prison guards from his time in detention in Iran, has flashbacks relating to his traumatic experiences in Iran on 2 to 3 occasions a day, and that he complains of vomiting when he eats. Investigations are underway regarding the latter complaint. When P found out that the appellant’s application for entry clearance had been refused he self harmed by superficially cutting his arms.

17. This letter is in similar terms to a letter authored by a Dr Frank Holloway, Consultant Psychiatrist, on 24 February 2010. Dr Holloway also observes in his letter that, “In January 2010 he [P] returned to the United Kingdom with his son and is now struggling to cope with his new role as a single parent”. This is consistent with oral evidence P gave to the Upper Tribunal, in which he stated that he had brought his son to the United Kingdom on Christmas day 2009 and had taken him back to Turkey in April 2010. He continued his oral evidence by asserting that he had been unable to look after his son, his son had become ill on several occasions, and that a Doctor at Mayday hospital in Croydon had recommended that he take his son back to Turkey where his mother could provide better care. Mr Deller did not cross examine on this evidence, and neither did he submit, during the course of his submissions, that such evidence should be disbelieved.

18. We observe at this point that we were also provided with a letter dated 6 March 2013 from Dr Teuta-Rexhepi-Johansson, relating to P’s mental health, in much the same terms as those detailed above.

FINDINGS OF FACT RELATING TO THE SECOND APPEAL

19. The core facts in the second appeal are the subject of dispute. We may only consider the circumstances appertaining at the time of the decision (7 June 2012), as we explained to M.

20. We have above, in the introduction to this determination, set out the key events which require some fleshing out.

21. According to the appellant’s application for entry clearance:

(i) She did not intend to work in the United Kingdom and that her sponsoring husband was unemployed.

(ii) They planned to live at an address in [redacted] which had two bedrooms plus a further room which was rented from H Homes.

(iii) The parties had first met in 2002 in Koh Samui and their relationship began a year later. They last saw each other on 10 June 2010 (the application is dated 10 April 2012).

(iv) The appellant had taken the English language test.

(v) The appellant had travelled to the United Kingdom in 2006 together with her sponsoring husband and the eldest child. The first application for entry clearance for that visit had been refused but the second was successful.

(vi) The appellant is unemployed and in receipt of £500 per month which was sent on living costs from her husband.

22. The application was accompanied by a letter from the sponsor, which is referred to in the Entry Clearance Officer’s decision. The decision notes:

(i) That the letter provided by the sponsor dated 31 March 2012 indicated a monthly income of £849.32 made up of child tax credit, jobseeker’s allowance and child benefit with rent and council tax being paid for by Hounslow Council.

(ii) The respondent considered these were the only sources of income and he was not satisfied that there were sufficient funds for the appellant’s maintenance.

(iii) The elder son JM had been attending primary school since September 2010. The sponsor had explained that he could not work until the appellant was in the United Kingdom. Given that JM was in full-time education the respondent did not accept he could not take any employment. The application and letter did not disclose evidence of enquiries for work or previous experience as an electrician or the presence of relevant qualifications to undertake such work.

(iv) The money transfers the sponsor had referred to did not correspond with the transactions in his account.

(v) A letter of support from the sponsor’s mother did not contain evidence of her personal or financial circumstances.

23. The Entry Clearance Officer explained he was not satisfied the parties could maintain themselves or that there would be adequate accommodation without recourse to public funds with reference to paragraph 281(v) and (iv).

24. Pausing there for the moment, the Entry Clearance Officer gave no reasons why he did not consider the accommodation to be adequate, nor did the First-tier Tribunal Judge. But since it is clear the appellant did not meet the mandatory requirement of maintenance under the Rules, any error flowing from consideration of the accommodation aspect was not material.

25. The Entry Clearance Officer also considered the Article 8 aspect. He observed that the sponsor had been visiting Thailand regularly throughout the years to maintain the relationship and that the appellant therefore had the option to continue to maintain that relationship through his visits. He concluded:

“While I accept that you may now wish to settle as a family together in one place, you have failed to provide a satisfactory explanation as to why your sponsor cannot reside with you and your children in Thailand. I am satisfied that there has been no breach of those Articles given the reasons already stated above. I consider that refusing this application is justified and proportionate in the exercise of immigration control. I note that refusing this application will not interfere with family life for the purpose of Article 8(1) which you enjoy in Thailand.”

26. By way of response to this decision, M explained the following relevant matters in a letter addressed to the entry clearance post as follows:

(i) JM starts school at 8.55am and finishes at 3.30pm. The hours of work the sponsor could offer any future employer is 10am to 2.30 Monday to Friday. These limited hours he could offer was something that were hard to come by. Were his wife in the United Kingdom the hours of work he could offer would be considerably more. Reference is made to the sponsor’s qualifications and experience as an electrician and also his qualifications and experience as a football coach.

(ii) Should his wife’s application be refused, he would be travelling to Thailand by himself and bring his younger son back to the United Kingdom so that he could start school in September. He could not apply for a school place until the younger son was in the United Kingdom.

(iii) As to why the family could not live in Thailand, the sponsor and his wife had agreed that their sons would have a better future receiving an English education.

(iv) As to family life being continued the way it is, he had not seen his wife between June 2010 and April 2012 and had not seen his younger son. Likewise JM had not seen his mother or younger brother. The four of them did reunite in Bangkok on 3 April 2012. It was only for a twenty day period. The sponsor questioned whether this sounded like a healthy, stable family life.

(v) He referred to the children’s champion stating that every child matters and that long visa applications should not interfere with children’s lives. A young child was missing his mother and brother and another child missing his father and brother. When the father and two sons were living in the United Kingdom his sons would miss their mother and the sponsor his wife.

27. An Entry Clearance Manager carried out a review on 1 November 2012 in which the points were made that:

(i) It is a common fact that many lone parents manage to work full time and care for their children. The sponsor had the option of part-time employment and had not chosen to do so.

(ii) The whole family, both those residing in the United Kingdom and those in Thailand, were wholly dependent on British public funds.

(iii) There was an absence of evidence that the sponsor had made any effort to find employment or that he was able to work as an electrician.

(iv) There was no evidence to show that the quality of education in Thailand is below that of the United Kingdom.

(v) It was the sponsor’s choice to take his elder son back with him to the United Kingdom in order to get a free education and the family unit as a whole had not resided together for any significant periods.

(vi) The sponsor had failed to address the fact that he was claiming benefits for a child who had never resided in the United Kingdom.

28. The Entry Clearance Officer and Manager had before them a letter from [school], with reference to JM, confirming that:

(i) He had been attending since 23 July 2010.

(ii) He had been identified as having special educational needs as his achievements were considerably lower than national expectations.

(iii) Despite intensive intervention he had not made adequate progress and it was believed there could be an emotional element to this.

(iv) At the beginning of the academic year JM was referred to a council support team as there were concerns around his living arrangements and the impact this was having on his emotional wellbeing. It is noted that since then JM and his father have moved into more suitable accommodation.

29. The letter from the deputy head concludes:

“J visited his mother and sibling in Thailand in April this year, since returning J has become very confused about his family situation and will often cry for ‘mummy’. The school has concerns around Jimmy meeting his behavioural and emotional milestones as well as his basic needs being met in the current situation, therefore we have made a referral to Children’s Services under the Child Protection framework.”

30. This appears to have been the extent of the evidence before the First-tier Tribunal Judge who noted the request had been made for the appeal to be decided on the papers. An analysis of the Judge’s determination is in the error of law decision by Upper Tribunal Judge O’Connor at Appendix II.

31. In response to a request from Judge O’Connor, M provided a letter dated 15 June 2013. He sets out again the history of his relationship to the appellant and the difficulties encountered. He contrasts his position with that of an EEA national exercising free movement rights in the United Kingdom and their ability for their family to join them. He refers also to the UN Convention on the Rights of the Child, arguing that Articles 3 to 10 have been totally ignored by UKBA.

32. At the hearing, on our invitation M repeated the number of points of concern. Whilst in no way diminishing the intense feelings he has about his situation, nothing new of a material nature emerged.

33. Although in some respects the sponsor’s evidence is short on detail, we are satisfied that he is an honest witness and we accept his evidence of the family’s fervent desire to be together, the difficulties he has with bringing up JM alone and his explanation for the difficulties he has encountered in obtaining employment, having regard to his commitments to JM. M referred again at the hearing before us to those difficulties which Mr Deller did not seek to challenge to such evidence.

THE LAW RELATING TO EUROPEAN CITIZENSHIP – BOTH APPEALS

34. EC Directive 2004/38/EC (“the Citizens Directive”) grants rights to EU citizens, and to any “family member” of such citizens [defined as a spouse or partner of the EU citizen, or direct minor and/or dependent descendant or direct dependent ascendant relative of the EU citizen or his/her spouse or partner – but not a non-dependent ascendant relative]. As a matter of domestic law, the Citizens Directive is given effect by the Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003) (“the EEA Regulations”).

35. Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) provides that every national of a Member State shall be a citizen of the EU, and shall have the right to move and reside freely within the territory of the member states.

36. Article 20 of the TFEU is in the following terms:

“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) …

(d) …

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”

37. In Ruiz Zambrano v Office National de l’Emploi (ONEm) [2011] All ER (EC) 491, the CJEU confirmed that Article 20 of the TFEU conferred the status of citizen of the Union on every person holding the nationality of a Member State.

38. The decision in Zambrano concerned Colombian national parents living in Belgium, whose children were nationals of Belgium. Mr Zambrano lost his employment, which he had been undertaking without the required work permit. He was refused unemployment benefits. Mr Zambrano sought to argue before the Belgium courts that articles 20 and 21 TFEU required Belgium as a member state to grant him, as an ascendant relative upon whom minor children who were EU citizens depended, an exemption from the obligation to hold a work permit.

39. The Grand Chamber of the European Court, on a reference from the Tribunal du travail de Bruxelles, concluded as follows:

“41. As the Court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of member states…

42. In those circumstances, article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the Union…

43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

45. Accordingly, the answer to the question referred is that art 20 TREU is to be interpreted as meaning that it precludes a member state from refusing a third country national upon which is minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

40. The CJEU’s decision in Zambrano has subsequently been considered in a number of other decisions of the CJEU: McCarthy v Secretary of State for the Home Department [2011] All ER (EC) 729; Dereci & Others v Bundesministerum fur Inners [2012] All ER (EC) 373; O and S v Maahanmuuttovirasto [2012] EUECJ C-356/11 and C-356/12 and Yoshikazu Iida v Stadt Ulm [2012] EUECJ C-40/11: and by the Court of Appeal in Harrison (Jamaica) & AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736.

41. Hickinbottom J recently had occasion to consider the abovementioned authorities in his decision in Jamil Sanneh v (1) Secretary of State for Work and Pensions and (2) The Commissioners for Her Majesty’s Revenue and Customs [2013] EWHC 793 (Admin); summarising the learning to be derived from them, which we respectfully agree with and adopt, in the following terms:

i) All nationals of all member states are EU citizens. It is for each member state to determine how nationality of that state may be acquired, but, once it is acquired by an individual, that individual has the right to enjoy the substance of the rights that attach to the status of EU citizen, including the right to reside in the territory of the EU. That applies equally to minors, irrespective of the nationality of their parents, and irrespective of whether one or both parents have EU citizenship.

ii) An EU citizen must have the freedom to enjoy the right to reside in the EU, genuinely and in practice. For a minor, that freedom may be jeopardised if, although legally entitled to reside in the EU, he is compelled to leave EU territory because an ascendant relative upon whom he is dependent is compelled to leave. That relative may be compelled to leave by dint of direct state action (e.g. he is the subject of an order for removal) or by virtue of being driven to leave and reside in a non-EU country by force of economic necessity (e.g. by having insufficient resources to provide for his EU child(ren) because the state refuses him a work permit). The rights of an EU child will not be infringed if he is not compelled to leave. Therefore, even where a non-EU ascendant relative is compelled to leave EU territory, the article 20 rights of an EU child will not be infringed if there is another ascendant relative who has the right of residence in the EU, and who can and will in practice care for the child.

iii) It is for the national courts to determine, as a question of fact on the evidence before it, whether an EU citizen would be compelled to leave the EU to follow a non-EU national upon whom he is dependent.

iv) Nothing less than such compulsion will engage articles 20 and 21 of the TFEU. In particular, EU law will not be engaged where the EU citizen is not compelled to leave the EU, even if the quality or standard of life of the EU citizen is diminished as a result of the non-EU national upon whom he is dependent is (for example) removed or prevented from working; although (a) diminution in the quality of life might engage EU law if (and only if) it is sufficient in practice to compel the a relevant ascendant relative, and hence the EU dependent citizen, to leave, and (b) such actions as removal or prevention of work may result in an interference with some other right, such as the right to respect for family life under article 8 of the European Convention on Human Rights.

v) Although such article 8 rights are similar in scope to the EU rights conferred by article 7 of the Charter of Fundamental Rights of the European Union, the provisions of the Charter are addressed to member states only when they are implementing EU law. If EU law is not engaged, then the domestic courts have to undertake the examination of the right to family life under article 8; but that is an entirely distinct area of protection.

vi) The overriding of the general national right to refuse a non-EU national a right of residence, by reference to the effective enjoyment of the right to reside of a dependent EU citizen, is described in both Dereci (paragraph 67) and Harrison (paragraph 66) as “exceptional”, meaning (as explained in the latter), as a principle, it will not be regularly engaged.

42. In Campbell (exclusion; Zambrano) [2013] UKUT 00147 (IAC) the Upper Tribunal (Upper Tribunal Judges Storey and Jordan) considered an appeal against the decision of an entry clearance officer to refuse entry clearance for the purposes of settlement as the spouse of a British citizen, where the claimant also had a British citizen child living in the United Kingdom. It concluded, in relation to the application of the ‘Zambrano principles’ that:

“30. We see no reason why Zambrano principles cannot have application in entry clearance cases: in both in country and out of country cases the Member State must ensure that any ‘refusal does not lead, for the Union citizens concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union”: Dereci & Others [European Citizenship) [2011] EUECJ C-256-11, 15 November 2-11, para 74. Indeed the ruling of the Grand Chamber of the Court of Justice in this case encompassed not just the cases of those applicants who were already living in the host Member State (Austria) but Mrs Stevic who resided in Serbia: see paras 26, 35, 74.”

43. None of the decisions thus far referred to has considered the applicability of the Zambrano principles to the scenario of the type that presents itself in the instant appeals; i.e. where a EU national child, from whom the non EU national parent is seeking to derive rights, is not living within the EU at the relevant date and has never lived within the EU.

44. In EU law terms, there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship. Mr Deller did not seek to argue to the contrary.

45. The above conclusion is fortified by the terms of The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560), brought in to force on 8 November 2012. Paragraphs 2 and 3 of the Schedule to the Regulations give effect to the CJEU’s decision in Zambrano by amending regulations 11 and 15A of the Immigration (European Economic Area) Regulations 2006 in order to confer rights of entry and residence on the primary carer of a British citizen who is joining the British citizen in, or accompanying the British citizen to [regulations 11(5)(e) and 15A(4A)], the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State.

46. We were not required by the parties to consider whether the appellants could benefit directly from the 2012 Regulations supra, as it was agreed between them that such Regulations were not of application in the instant appeals.

THE EU LAW PRINCIPLES APPLIED TO THE FIRST APPEAL

47. The appellant’s son, AP, is a British, and therefore a European Union citizen. It is intended that the appellant in the first appeal accompany her son to the United Kingdom. AP has the right to reside in the EU.

48. Neither AP, nor the British citizen sponsor in the first appeal, have, or intend to, move within the territory of the member states. Consequently the appellant can place no reliance on EC Directive 2004/38/EC.

49. Turning to the application of the Zambrano principles to the first appeal, it is of some significance that the sponsor has the mental health issues we have identified above. We find, having considered all of the evidence before us, that as of the date of the Entry Clearance Officer’s decision P, as a consequence of his mental health issues, did not have the capability of looking after AP, without there being more than an insignificant risk to AP’s essential well being.

50. There was no evidence before us, and Mr Deller did not seek to assert, that AP had other relatives in the United Kingdom who could take care of him and it is no answer to the appellant’s claim under the Zambrano principles that AP could exercise his right of residence in the EU by being adopted or otherwise placed in the care of Social Services [Harrison at paragraph 19].

51. On the exceptional facts of this case we find that a refusal to admit the appellant to the United Kingdom would deprive AP of the genuine enjoyment of the substance of the rights associated with his status as an EU citizen. Consequently, denying the appellant in the first appeal a right of entry and residence to the United Kingdom would lead to a breach of Article 20 of the Treaty on the Functioning of the European Union.

52. The first appeal is therefore allowed on the basis that the decision of the Entry Clearance Officer of the 13 February 2012 breaches the appellant’s derived rights under the Community Treaties in respect of entry to and residence in the United Kingdom. That being so there is no purpose in journeying into Art 8 ECHR but were we to do so we would find, having regard to the factors that have led us to allow the appeal under EU law, that:

a. The appellant has a family life with her son, AP, and her husband, P (as accepted by Mr Deller).

b. The decision of the ECO interferes with the appellant’s family life with her husband.

c. Such interference would be of sufficient severity so as to engage Art 8.

d. Such interference is not in accordance with the law.

e. The legitimate aim relied on by the ECO is (as submitted by Mr Deller) an economic one.

f. The interference caused by the refusal of entry clearance is, in all the circumstances including the interests of AP, not proportionate to that aim.

THE EU LAW PRINCIPLES APPLIED TO THE SECOND APPEAL

53. The appellant’s two sons, JM and FM, are British, and therefore European Union, citizens. JM is already residing in the United Kingdom and has done so with his British citizen father, the sponsor, for a number of years. It was, as of the date of the Entry Clearance Officer’s decision, intended that FM accompany the appellant in the second appeal to the United Kingdom. Although not relevant for the purposes of this appeal, we observe that the current intention is that FM will travel to and reside in the United Kingdom even if his mother is not granted leave to do so.

54. Neither JM or FM, nor the British citizen sponsor in the second appeal, has moved, or intend to move, within the territory of the member states. Consequently the appellant in the second appeal can place no reliance on EC Directive 2004/38/EC.

55. Turning to the application of the Zambrano principles to the second appeal, whilst we accept that if JM and FM were both to reside in the United Kingdom without their mother, life would be difficult for the sponsor, and indeed the children, we do not accept that a refusal to admit the appellant to the United Kingdom would deprive either JM or FM of the genuine enjoyment of the substance of the rights associated with their status as EU citizens.

56. There is no suggestion that the sponsor is not capable of looking after JM and FM. He has tailored his working hours thus far to ensure that they fit in with the need to care for JM, and we have no doubt he would also ensure that FM was similarly cared for. There mere fact that the sponsor cannot be as economically active as he would wish, because of his care responsibilities to JM and FM, is not sufficient to support a conclusion that JM and FM would be denied the genuine enjoyment of their EU citizenship rights, nor would this be the case even if the sponsor were required to stop working altogether. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living (see Dereci at paragraph 68, and Harrison at paragraph 67).

57. Looking at the circumstances in the second appeal as a whole we do not accept that denial of a right of entry and residence to the appellant would lead to a breach of Article 20 of the Treaty on the Functioning of the European Union

CONCLUSIONS ON ARTICLE 8 IN THE SECOND APPEAL

57. We are required to examine the best interests of JM as he is living in the United Kingdom. The Entry Clearance Officer undertook no analysis of those interests.

58. FM is outside the United Kingdom and therefore s.55 of the Borders, Citizenship and Immigration Act 2009 does not apply. Nevertheless, as was made clear by the Tribunal in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC):

“i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.

ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children...undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”.

iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.

iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a. there is evidence of neglect or abuse;

b. there are unmet needs that should be catered for;

c. there are stable arrangements for the child’s physical care.

The assessment involves consideration as to whether the combination of circumstances is sufficiently serious and compelling to require admission.”

We are satisfied that the Entry Clearance Officer’s decision was an action concerning children undertaken by an administrative authority, and accordingly Article 3 of the UN Convention on the Rights of the Child comes into play.
As a starting point, the best interests of a child are usually best served by being with both parents. Continuity of residence is another; change in place of residence where a child has grown after a number of years when socially aware is important, [see also SG (child of polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939].
Mr Deller refers in his skeleton argument to the recent decision of the Court of Appeal in SS (Nigeria) v SSHD [2013] EWCA Civ 550, in particular the comments by Mann J at [62] that any “best interests” consideration should be identified by the appellants.
Laws LJ gave the lead judgment in SS (Nigeria). At [44] he provides analysis of what is understood by the interests of a child or children being a primary consideration, and at [44]:

“… with great respect they are capable if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course ‘a primary consideration’. It appears from ZH and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective ‘primary’? We know it does not mean ‘paramount’ – other considerations may ultimately prevail. And the child’s interests are not ‘the’ but only ‘a’ primary consideration – indicating that there may be other considerations which, presumably, may count for as much. Thus the term ‘primary’ seems problematic. In the course of argument Mr Auburn accepted that ‘a primary consideration’ should be taken to mean a consideration of substantial importance. I think that is right.”

Mr Deller did not seek to persuade us otherwise that the best interests of the two children affected by the Entry Clearance Officer’s decision were to be together with both parents in a united family.
He accepted that family life existed in this case and that the decision entailed consequences of such gravity so as to engage Article 8. We consider that he was correct to state that the decisions were lawful, but only insofar as they do not affect any derived residence rights of carers of British citizen children. We have already found that the EU citizen rights of FM and of JM are not undermined to the extent that either child (or the children together) is (or are) unable to exercise those citizenship rights in the light of the ability of the sponsor to care for both of them in the United Kingdom.
Continuing the familiar journey through the Razgar principles, Mr Deller argued that the decisions are pursuant to the legitimate aim of consistent immigration control in the economic interests of the UK and that they were proportionate.
Our focus therefore is on the issue of proportionality.
In his oral submissions Mr Deller emphasised that the legitimate aim relied upon by the ECO was purely an economic one. He was alive to the difference of approach that may be taken where the best interests of young children are concerned in contrast with those of later teenage years, and with characteristic candour he accepted that he had not come across such a case as this before where there were British citizen children living apart in the circumstances in the case before us.
In Izuazu the Secretary of State made the following concession (recorded in Appendix A to the determination)

“The Secretary of State continues to accept that where the primary carer of a British citizen is denied a Zambrano right of residence on the basis that his or her removal or deportation would not force the British citizen to leave the EU, it will not logically be possible when considering any Article 8 claim made by such a person to determine their claim on the basis that the family (including the British citizen) can relocate together to a place outside the EU. However, the Secretary of State does not accept that it follows that there will be no circumstances in which a decision taken in respect of the primary carer of a British citizen can require that British citizen to leave the UK. The Secretary of State does not consider that the UK Border Agency letter sent to the Tribunal in Sanade suggested that she did accept that it is never reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad but apologises for any lack of clarity in the correspondence which may have caused the Tribunal to reach this conclusion”

Mr Deller accepted that this concession can be extrapolated so as to be of application to entry clearance applications and that consequently it would not logically be possible when considering an Article 8 claim in such a context to determine the claim on the basis that the British citizen child would relocate, or remain living, outside the EU. The consequent effect of such extrapolation in the instant case is that, (i) although FM is currently residing outside the EU, the appellants Article 8 claim must be determined on the basis that he is living in the EU and (ii) it is not reasonable to expect JM to relocate to Thailand.

In such circumstances a refusal to grant the appellant entry clearance would lead to a permanent breakdown in the physical relationship between the appellant and her child FM (and indeed JM), save for the possibility of contact during visits.
The best interests of the children in this case acquire a particular force on the facts, taking account of the developmental and emotional difficulties encountered by JM. Although we do not have the same insight into any difficulties encountered by FM, inevitably there will have been a negative impact on him in coming to terms with his father and older brother being in the United Kingdom and their contact being largely only via Skype, with only the most limited physical interaction.
The Secretary of State is undoubtedly entitled to rely on economic considerations as justification for the accepted interference. We have found M credible and we consider that we have been given a plausible explanation why he had not previously been able to obtain employment given the limited number of free hours he would have available.
It does not follow, however, that where a family which includes British citizen children are being kept apart for economic reasons that the existence of children should result, using the language of Laws J, in “…a uniform prevailing force which yields no or little space to the context in hand”. The context here is one of economic considerations in the United Kingdom where there are real economic pressures on an overstretched welfare system. The focus therefore must be on the particular circumstances of the case and to evaluate whether the factors in favour of the appellant joining her children in the United Kingdom are sufficiently compelling to outweigh the economic considerations.
The position is a plain one. If the scales tip in favour of the ECO, it will have the effect of separating a mother from her two children one of whom for which she has been the principal carer and the other who has suffered as the result of their separation. Mr Deller accepted that our approach should be on the basis that FM is here in the light of his constitutional right to be. This is in the context of a well meaning father who has found it difficult to care for the son who lives him and who we believe will find the presence of two to be a real struggle without the presence of the mother.
Unlike so many appeals that we are required to consider this case involves no misconduct at any level by the parties. As observed by Richards LJ in JO (Uganda)[2010] EWCA Civ 10 at [29]:

“There is, however, one material difference between the two types of case, in that they generally involve the pursuit of different legitimate aims: in deportation cases it is the prevention of disorder or crime, in ordinary removal cases it is the maintenance of effective immigration control. The difference in aim is potentially important because the factors in favour of expulsion are in my view capable of carrying greater weight in a deportation case than in a case of ordinary removal. The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise. Thus I think it perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress "in principle", because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offences and the other circumstances of the case.”

The absence of any misconduct by the parties does not diminish the weight we must give to the economic well-being of the UK but its place in the measure of proportionality needs to be carefully evaluated in the face of the impact of continued separation of this family. We put our sympathies on one side. But what we are left with is a compelling need for this family to be reunited in the best interests of the children. The harm that would flow from their continued split is sufficient to tip the scales in favour of the appellant coming to the UK due weight having been given to the competing economic factor of limiting the demands made on the public purse.
The decision of the First-tier Tribunal contained an error of law in the assessment of Article 8 grounds. We re-make the decision on appeal by allowing it on Article 8 grounds.

Decisions

First appeal

The determination of the First-tier Tribunal has been set aside. We re-make the decision on appeal allowing it on the basis that the decision of the Entry Clearance Officer of the 13 February 2012 breaches the appellant’s derived rights under the Community Treaties.

Second appeal

The determination of the First-tier Tribunal has been set aside. We re-make the decision by allowing it on Article 8 grounds.

We have both contributed to this determination.

Signed:

Upper Tribunal Judge O’Connor

Date July 2013

Appendix I

“[1] The appellant is a citizen of Iran living in Turkey. On 13 February 2012 an Entry Clearance Officer in Istanbul refused her entry clearance to join her husband in the United Kingdom. The appellant’s husband, Mr P, is a former refugee here and is now a British citizen. The appellant and her husband married in Turkey on 20 June 2007 and they have a child of their union born on 8 April 2009. Their child, A, is a British citizen and currently lives with the appellant in Turkey.

[2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that the appellant and her husband had a subsisting marriage and that they intended to permanently live together, (ii) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (iii) and it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds.

[3] The appeal came before First-tier Tribunal Judge R. G. Walters on 30 October 2012 and was dismissed on all grounds by way of a determination promulgated on 15 November 2012.

[4] In its determination the First-tier Tribunal accepted that the appellant and the sponsor were in a subsisting marriage and that they intended to live permanently with each other in the United Kingdom, but concluded that the appellant could not meet the accommodation and maintenance requirements of the Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’s Article 8 ECHR rights, and concluded that it would not.

[5] Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker in a decision of 10 April 2013. Thus the appeal came before me.

[6] The grounds of challenge are numerous but in broad terms seek to assert that (i) the First-tier Tribunal was wrong in its conclusion that the appellant failed to meet the maintenance and accommodation requirements of the Rule, (ii) the First-tier Tribunal erred by failing to consider whether the appellant met the requirements of paragraph 325A of the Immigration Rules and finally (iii) the First-tier Tribunal’s consideration of Article 8 ECHR grounds was inadequate and unlawful.

[7] I shall deal with these grounds in turn.

[8] In seeking to challenge the conclusion that the appellant could not meet the maintenance requirement of the Rule, Mr Chukwudolue observed that the First-tier Tribunal had accepted that the appellant has qualifications as an interpreter and translator and in particular qualifications in interpreting and translating into the English language. It was submitted that in such circumstances the tribunal’s decision on the maintenance issue was unsustainable.

[9] In its consideration of this aspect of the appeal the First-tier Tribunal drew attention to a letter from the vicar of [church], which indicates that the appellant’s language skills would help her reach out to the local community in the parish. It correctly observed, however, that nowhere in this letter did it state that the appellant would receive payment for performing such a role. There was no other evidence before the First-tier Tribunal relating to (i) the general availability of employment or self-employment in the United Kingdom as a translator or interpreter, (ii) the likely level of the pay of any employment or self-employment that may be obtained by the appellant in this regard or (iii) the likely regularity of any such employment or self-employment.

[10] It was for the appellant to demonstrate on the balance of probabilities that she would be able to obtain sufficient income from employment or self-employment in the United Kingdom so as to meet the Immigration Rules. Given the paucity of evidence relating to the possibility of her obtaining income from her own sources, and given that the sponsor was a recipient of public funds, in my conclusion, far from being perverse, the First-tier Tribunal’s conclusion on the maintenance issue was inevitable. In all the circumstances I do not accept that the First-tier Tribunal erred in concluding that the appellant failed to meet the maintenance requirement of the Immigration Rule.

[11] As to the issue of accommodation, the First-tier Tribunal noted that the sponsor had given evidence that he had approached [the council] in relation to the possible arrival of his wife and child in the United Kingdom and that the council had stated that once they had arrived larger accommodation would be provided to the family. The First-tier Tribunal found that this would amount to additional recourse to public funds. I, also find that this is plainly the case, as can be seen from the Tribunal’s reported decision of KA & Others (public funds: housing) Iraq [2007] UKAIT 00081.

[12] The grounds seek to do no more than assert that the appellant’s current accommodation satisfies the Immigration Rules, however, as indicated above, the local authority has indicated that they would move the sponsor to larger accommodation upon the appellant’s arrival and, consequently, the tribunal was right to conclude as it did on the issue of accommodation.

[13] For the reasons given above I therefore find that the First-tier Tribunal did not err in its conclusions made in relation to paragraph 281 of the Immigration Rules.

[14] The second tranche of grounds relied upon by the appellant generally assert that the First-tier Tribunal erred in (i) failing to consider paragraph 352A of the Immigration Rules and (ii) failing to properly consider and address the decision of the Upper Tribunal in FH (post-flight spouse) Iran [2010] UKUT 275.

[15] These are manifestly hopeless grounds. The former was quite properly withdrawn by Mr Chukwudolue during the course of his submissions. For the sake of clarity I observe that paragraph 352A of the Immigration Rules relates to marriages which took place prior to the flight of the refugee and, in any event, relates only to those persons whom are in the United Kingdom and currently have refugee status. The appellant falls into neither of these categories. The sponsor fled Iran prior to marrying the appellant and, in any event, the sponsor was no longer a refugee as of the date of the ECO’s decision; he having been granted British citizenship (see paragraph 339BA of the Immigration Rules).

[16] As to the relevance of the decision in FH Iran, this decision considers an applicant who engaged in a post-flight marriage to a person who was a refugee with 5 years leave to remain, in the United Kingdom. Consequently, such person could neither satisfy paragraph 352A of the Rules nor paragraph 281 of the Rules, the latter being as a consequence of the fact that the United Kingdom based sponsor did not have settled status. As indicated above, the sponsor in the instant appeal does have settled status in the United Kingdom. Consequently, the rationale which underpins the decision in FH plainly does not apply to the instant appeal.

[17] I now turn to my consideration of the Article 8 ECHR ground.

[18] In my conclusion the First-tier Tribunal’s decision in this regard contains an error of law such that it ought to be set aside.

[19] In paragraphs 32 and 33 of its determination the First-tier Tribunal stated as follows:

“[32]The sponsor was asked at the hearing why he could not relocate to Turkey to continue his family life there with the appellant and his son. He replied that he would receive no state benefits in Turkey and also that he would have to pay for his son’s education.

[33] I did not find that either of these factors would cause the interference to be disproportionate. If it were to be so held, it would mean that the appellant would essentially be able to bypass the requirements of the Immigration Rules that she be adequately maintained and accommodated. It appears that the only reason the sponsor gives for not moving to Turkey and exercising his family life rights there is financial. He does not suggest, for example, that Turkey’s immigration law would prohibit him from settling there as the appellant’s husband.”

[20] These two paragraphs contain a series of errors. It is plain that the First-tier Tribunal erred by failing to direct itself as to the appropriate consideration when assessing whether the sponsor should be required to live in Turkey. The tribunal ought to have asked itself whether it was reasonable for the sponsor to move to Turkey not whether it was proportionate for him to do so. Secondly, contrary to that which is stated in paragraph 33 of the determination, both the appellant’s witness statement and the skeleton argument drawn on his behalf list a whole host of reasons why it was asserted to be unreasonable to expect the sponsor to move to Turkey, including the fact that he has serious health problems for which he receives support in the United Kingdom. The First-tier Tribunal erred in failing to take such matters into account when coming to its conclusion on the issue of proportionality. Thirdly, and of most significance, is the failure of the First-tier Tribunal to recognise that the appellant’s child is a British citizen and thereby has certain EU law rights.

[21] I do not accept Ms Horsley’s submission that the consequence of the appellant being unable to meet the new Article 8 requirements, as set out in the Immigration Rules after 9 July 2012, is that his appeal is not capable of succeeding on Article 8 ECHR grounds. Firstly, those Rules post date the decision under appeal and do not act retrospectively and, further, the tribunal is also required to consider whether the ECO’s decision would lead to a breach of the appellant’s Article 8 ECHR rights as protected by section 6 of the Human Rights Act 1998.

[22] For all these reasons, I set aside the First-tier Tribunal’s determination insofar as it relates to the Article 8 ECHR ground and direct that the decision on appeal be remade by the Upper Tribunal. The findings made in relation to the Immigration Rules are to remain standing”

Appendix II

“[1] The appellant is a citizen of Thailand, born 10 March 1973. On 7 June 2012 an Entry Clearance Officer in Bangkok refused her entry clearance to join her husband in the United Kingdom. The appellant’s husband is a British Citizen. The appellant and her husband married in Thailand on 24 April 2007 and have 2 children of their union, both children being born in Thailand. The eldest child, JM, was born on 23 December 2004 and lives in the United Kingdom. He has been attending school here since September 2010. The youngest child, FM, was born on 14 December 2007 and has remained living in Thailand since birth. The children are both dual Thai and British nationals.

[2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (ii) it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds (iii) refusing entry clearance would not lead to a breach of Article 8 ECHR.

[3] The appellant appealed to the First-tier Tribunal and the appeal cane before First-tier Tribunal Judge Grimshaw on 28 February 2012. It dismissed on all grounds by way of a determination promulgated on 7 March 2013.

[4] In its determination the First-tier Tribunal concluded that the appellant could not meet the accommodation and maintenance requirements of the Immigration Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’s Article 8 ECHR rights, and concluded that, although Article 8 was engaged [25], refusing the appellant entry clearance was proportionate. In doing so the tribunal gave the following reasons:

[26] However, I am required to weigh the rights of the individual and the rights of society as a whole. I have kept in mind the balancing exercise that must be carried out in order to strike a fair balance between the competing interests of the individual and the community. I have taken into account the Respondent’s legitimate aim of protecting this country’s well being by maintaining proper immigration control, and, on the other hand the effect of separation on the appellant and the sponsor. As far as that is concerned I am aware that the couple also have two young children, one of whom remains in Thailand. The other child who lives with the sponsor in the United Kingdom is displaying behavioural problems and the school is sufficiently concerned about his welfare to make a referral under the child protection framework.

[27] It is not entirely clear to me why the sponsor is prevented from enjoying family life with the appellant and his children in Thailand. The letter that he has submitted simply refers to the prospect of their children having a better future by receiving an English education in the United Kingdom. However, that factor alone does not persuade me that it would be unreasonable to expect the sponsor to make a home with the appellant and their children in Thailand. It is the sponsor’s own evidence that since 2002 he has lived and travelled extensively in Thailand with the appellant and has met her family and friends.

[28] I remind myself that the sponsor is not prevented from visiting the appellant abroad and using modern technology to keep their marriage and family alive during their periods of separation. It is evident that the family already have access to modern means of communication, including Skype. Furthermore, there is nothing to the prevent the appellant making a fresh application for entry clearance to the United Kingdom in the future that addresses the issues raised in this determination. I bear in mind that respect for the right to family life does not and cannot prevent the State from establishing conditions which conflict with family life if such conditions maintain an appropriate balance between private life and the public interest. Respect for family life does not necessarily mean that members of one family can establish themselves in the country of their choice.

[29] Accordingly, I am satisfied that the decision to refuse entry clearance in this case is one that can be justified by the Respondent as proportionate and a fair balance between competing considerations.”

[5] I granted the appellant permission to appeal to the Upper Tribunal, in a decision of the 24 April 2013, for the following reasons:

“It is arguable, however, that the First-tier Tribunal erred in its consideration of Article 8 ECHR by (i) failing to lawfully consider the best interests of the British Citizen/dual national children and (ii) by failing to consider and apply the relevant principles of EU law set out in the Upper Tribunal’s decision in Sanade and others (British children - Zambrano – Dereci) [2012] UKUT 00048, [such principles being more recently considered by the Upper Tribunal in its decision in Izuazu (Article 8 – new rules) [2013] UKUT 00045 (IAC)].”

[6] At the hearing Ms Horsley submitted that the First-tier Tribunal had not materially erred in law. She accepted that the tribunal had made no mention of the best interests of the appellant’s children but submitted that it could be inferred from the decision that (i) the tribunal had been aware that the children are British, (ii) that it had considered the best interests of the children and (iii) that having done so it had concluded that the ECO’s decision was nevertheless proportionate.

[7] Upon being invited by the Upper Tribunal to identify what the First-tier Tribunal had found the best interests of the children to be, Ms Horsley submitted that given that the children are dual nationals it could not necessarily be said that there best interests lie in being in the United Kingdom and that, in any event, even if the best interests of the children did lie in being in the United Kingdom this would not, on the facts of the instant case, outweigh the public interest in refusing entry clearance. Ms Horsley then sought to persuade the tribunal that the relevant public interest is that which is reflected in the Immigration Rules as they currently stand, when taken in conjunction with the Immigration Directorate Instructions dated May 2013.

[8] I reject the above submissions and conclude that the First-tier Tribunal’s failure to consider the best interests of the children, or at the very least the United Kingdom based child, amounts to an error on a point of law capable of affecting the outcome of the appeal.

[9] Contrary to Ms Horsley’s submission I do not accept it can be inferred from the First-tier Tribunal’s determination that it took into account the best interests of the children. No specific mention is made in the determination of section 55 or of the best interests of the children. No attempt is made to identify what those best interests are, and no reasons are given for any conclusions that may have been made on this issue. Further, if the tribunal did make a finding as to what would be in the best interests of the children, it did not direct itself that those interests must be treated as a primary consideration, nor does it obviously apply such direction even if not explicitly stated.

[10] In short the First-tier Tribunal’s determination is devoid of any recognition of its role in assessing where the best interests of the children lie.

[11] As to whether such error is capable of affecting the outcome of the appeal, I find that it plainly is. In my conclusion it cannot be said that there is only one possible outcome to this appeal.

[12] As to Ms Horsley’s submission that the Secretary of State’s view of where the public interests lies is that reflected in the current Immigration Rules and the May 2013 IDI’s, I leave this point open for further argument in the re-making of the decision; however, my preliminary view is that such a submission is misguided, given the terms of Sections 85 and 85A(2) of the Nationality, Immigration and Asylum Act 2002 and the opinions of their Lordships House in AS Somalia [2009] UKHL 32, i.e. that on appeal against a decision to refuse entry clearance it is the circumstances appertaining as of the date of the ECO’s decision that are relevant. The ECO’s decision in the instant matter pre-dates the changes to the Immigration Rules relied upon by Ms Horsley.

[13] I consequently find that the decision of the First-tier Tribunal contained an error of law capable of affecting the outcome of the appeal and for this reason I set it aside. The scope of that hearing is to be restricted to a consideration of Article 8 ECHR, there being no material error in the First-tier Tribunal’s consideration of the ground relating to the Immigration Rules.”