Parents of UK child, settlement

[ThaiVisaExpress]

Here is news that could be extremely important for child settlement visa applications. There are two linked appeal determinations, and one of them is a Thai child applying to accompany his mother to the UK to join their husband/step-father. It is complicated but seems to hinge on the best interests of the child. Here is a "taster of the determination :

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.

This is the link to the determination itself:

http://www.bailii.org/uk/cases/UKUT/IAC/2013/00380_ukut_iac_2013_ma_sm_iran.html

Edited August 9, 2013 by ThaiVisaExpress

[Jay Sata]

That seems to blow a hole through the 'no recourse to public funds rule'.

[7by7]

With respect, TVE, in both cases the topic title is a bit misleading as the appellants were not children, but the non EEA national parents of British children.

If I have read it right, the first case was allowed on Zambrano grounds because the child's father is, through ill health, incapable of looking after the child adequately and so for the child to exercise his treaty right as a British, and therefore an EEA, citizen to live in the UK it is necessary for his non EEA mother to live in the UK too.

The second case was allowed under Article 8 as the original refusal meant separating the family with the British husband and children living in the UK and the Thai mother living in Thailand; thus interfering with their right to family life.

As the determination says in the second case

76.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.
77.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.

However, even though the appellants in this case were adults, the grounds for the appeals and reasons for granting them do seem to be based upon the rights of the child and what is in their best interest.

We all know that ECOs in Bangkok appear to have paid scant regard to this in the past. Hopefully this judgement will make them take this aspect more seriously in the future.

[7by7]

That seems to blow a hole through the 'no recourse to public funds rule'.

No it doesn't.

M is legally entitled to claim any and all public funds to which he and his children may be entitled; they are British citizens.

I see nothing in the judgement which says he will be able to claim extra public funds due to his Thai wife living with him.

For once, could you please keep your ignorant prejudices out of what could be an important discussion for many members.

[Jay Sata]

No ignorant prejudices at all just making an observation but of course I forgot you are the expert on this and

all other immigration matters. It would help if you stopped being so aggressive towards those you disagree with.

Thanks for the post TVE.

If I read the judgement correctly it means that as an example a retired UK citizen with a son or daughter can return

home and once settled can apply for his wife to join him.

I know of one guy who would like to return but his wife never bothered to get citizenship while she was living in the UK.

This appears to open a loophole where he could come home despite not meeting the earnings requirements and once the

child is in school use this judgement to repatriate his wife to the UK.

Edited August 9, 2013 by Jay Sata

[ThaiVisaExpress]

With respect, TVE, in both cases the topic title is a bit misleading as the appellants were not children, but the non EEA national parents of British children.

If I have read it right, the first case was allowed on Zambrano grounds because the child's father is, through ill health, incapable of looking after the child adequately and so for the child to exercise his treaty right as a British, and therefore an EEA, citizen to live in the UK it is necessary for his non EEA mother to live in the UK too.

The second case was allowed under Article 8 as the original refusal meant separating the family with the British husband and children living in the UK and the Thai mother living in Thailand; thus interfering with their right to family life.

As the determination says in the second case

76.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.

77.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.

However, even though the appellants in this case were adults, the grounds for the appeals and reasons for granting them do seem to be based upon the rights of the child and what is in their best interest.

We all know that ECOs in Bangkok appear to have paid scant regard to this in the past. Hopefully this judgement will make them take this aspect more seriously in the future.

Whoops. you are right. In my excitement I got carried away. I actually had you in mind when i was reading it, in view of your Zambrano threads from a while back. I'm sure the mods can change the title to something suitable. Thanks for the heads up.

Tony M

Edited August 9, 2013 by ThaiVisaExpress

[7by7]

Thanks for that, Tony. I'll pass the information on.

Mr Sata; I suggest that you read the judgement before commenting again.

The reasons behind the judgement were, very briefly, that the ECO and first tier tribunal had not giving due consideration to the welfare and rights of the child.

You'll see that in both cases the original refusals, and hence original applications, were before the new financial requirement came in; Feb 2012 and June 2012 respectively.

What effect this judgement will have on applications involving children where the new financial requirements are not met, we will have to wait and see.

While you're at it look up the meanings of 'loophole' and 'repatriate.'

Your comment "That seems to blow a hole through the 'no recourse to public funds rule'." is, for the reason given, erroneous; but, given your oft posted comments about anyone you consider beneath your financial status, it's not surprising that you made it.

The only surprise is that you haven't, yet, made any remarks about legal aid!

That's it from me as far as your prejudices are concerned; I will not play your games and allow you to drag this important topic away from it's subject as you have done with so many others.

Edited August 9, 2013 by 7by7

[7by7]

Tony, it seems to me that one of the important factors in both cases was that the children involved were British citizens. certainly in the first as the decision involved Zambrano.

I'd very much appreciate your thoughts on whether the same considerations would be given in cases where they are not; i.e. the step children of the British spouse.

[bobrussell]

The courts are getting there bit by bit!

Any EU citizen child should have the right to live with both parents irrespective of nationality, in the country shown on their EU passport (and any other country within the EU under freedom of movement rules).

The matter of entitlement to benefits should not come into the equation at all. It is up to the benefits rules to get anyone fit to work, in to work and nothing to do with immigration rules.

Not politically popular, I am sure but morally right that any EU child should be able to live with both parents IMO.

[2yearvisitvisa]

If I read the judgement correctly it means that as an example a retired UK citizen with a son or daughter can return

home and once settled can apply for his wife to join him.

Well said.

And that's how I read it too.

Edited August 10, 2013 by theoldgit
quoted flame removed.

[Jay Sata]

Many thanks for that reply.

I quote myself here

If I read the judgement correctly it means that as an example a retired UK citizen with a son or daughter can return

home and once settled can apply for his wife to join him.

I know of one guy who would like to return but his wife never bothered to get citizenship while she was living in the UK.

This appears to open a loophole where he could come home despite not meeting the earnings requirements and once the

child is in school use this judgement to repatriate his wife to the UK.

The way I read that judgement is that it overcomes the problems a pensioner would have in bringing a UK passport holding son or daughter plus spouse back to the UK even if they could not meet the £18600 threshold.

Edited August 10, 2013 by theoldgit
Flame removed

[ThaiVisaExpress]

Tony, it seems to me that one of the important factors in both cases was that the children involved were British citizens. certainly in the first as the decision involved Zambrano.

I'd very much appreciate your thoughts on whether the same considerations would be given in cases where they are not; i.e. the step children of the British spouse.

I think I've sort of got my head around this now. That'll teach me to speed-read appeal determinations !

I think that, logically, it must extend to non-British children too as it is the best interests of the child that are being highlighted here. Paul has a couple of cases on the go at the moment where the ECO has not mentioned the best interests of the child in the refusal notice, despite instructions to ECOs to do so. Paul actually wrote to the Embassy saying :

"The ECO does not seem to have considered the best interests of the child applicant. We are aware that the ICI recently recommended that applications made overseas should also consider the best interests and the welfare of child applicants, even though Section 55 of the Borders, Citizenship and Immigration Act 2009 November 2009 does not apply in entry clearance applications. The ICI further recommended that refusal notices expressly refer to the fact that the ECO had considered these interests. The UKBA accepted the ICI‟s recommendations, yet it is clear here that the ECO did not follow guidance or best practice, or consider the best interests of the child in any way. The lack of any reference to the child‟s best interests indicates that they were not considered by the ECO. We would also submit that it is clear that the best interests of an 8 year old child would most probably include living with her mother, and not with another relative in another country. We fail to understand how, in an application such as this where the applicant‟s mother has proved that she talks with her daughter every day, and supports her daughter financially and emotionally, anyone could think otherwise.‟

The UKV&I's response was :

"I can confirm that ECOs do consider the best interest of the child in these applications but this needs to be balanced against the Immigration Rules. The fact that Paragraph 297(i)(f) and 301(i)(c ) have been mentioned in the refusal notices you highlighted demonstrates this."

To my mind, just "mentioning" paragraph 297 and/or 301 in a GV51 does not necessarily demonstrate that the ECO has given the matter of the child's best interests proper consideration. I believe he must demonstrate how and why he thinks it would be best for the child to remain in, for instance, Thailand. The Embassy then went on to say :

'As far as explicitly mentioning Section 55, the UKBA response to the ICI report was:

“Section 55 does not apply to entry clearance cases, even where the applicant (who will be outside the UK by the nature of the application) has a child who is in the UK. The new family rules are compliant with Article 8, but where an applicant for entry clearance has a child in the UK and fails to meet the requirements of the rules, they can raise any exceptional circumstances which would mean that a refusal under the rules would result in an unjustifiably

harsh outcome – i.e. one that is incompatible with Article 8 – for the applicant or their child. The UK Border Agency‟s assessment of these exceptional circumstances will involve a consideration of the best interests of the child and could result in a grant of leave outside the rules where appropriate.

We will review the way that these decisions are considered and recorded, and revise our caseworker guidance and minute sheets if appropriate'

We still await a further update on instructions for posts overseas but our guidance as well as assessment of the paragraphs I mention above is clear."

Well, I think the current determination makes it fairly clear that visa posts should not be awaiting a further update on instructions but should be considering the best interests of the child in every application processed.

There is little doubt that the Home Office will appeal against this determination, but I think, and hope, that it gives some light at the end of the tunnel for "sole responsibility" applications in the future.

Edited August 9, 2013 by ThaiVisaExpress

[7by7]

Thanks for that, Tony.

So you think UKV&I are going to take these cases further?

Although both these cases come under the old rules, it also looks as if they, or more likely their political masters, are sticking to the line that the new financial requirements do not breach Article 8.

I guess that, as has been said many times before, we're going to have to wait for at least one, probably several, ECHR judgements before that matter is definitely settled.

To my mind, just "mentioning" paragraph 297 and/or 301 in a GV51 does not necessarily demonstrate that the ECO has given the matter of the child's best interests proper consideration. I believe he must demonstrate how and why he thinks it would be best for the child to remain in, for instance, Thailand

Indeed. How many applicants and sponsors know the full wording of the rules and relevant sub paragraphs? Very few, if any. Surely the ECO must say which part of the relevant rule they consider is not met, and why. Without knowing that, how can an applicant be expected to prepare an appeal or new application; or anyone advise them on how to do so?

They can't.

How can they say that Section 55 does not apply to entry clearance cases?

Surely the case of the case of R (on the application of TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) (26 October 2010), sourced from Free Movement, makes it clear that it does!

It is critical reading for anyone representing either children or parents. Salient points include the following:

•The duty is mandatory and requires the decision-maker to embark upon a sufficient and proper decision making process so as to discharge the duty with an open mind (para 24)
•In the written decision produced by the decision maker he does not have to refer, expressly, to the relevant statutory duty; however the terms of the written decision must be such that it is clear that the substance of the duty was discharged (para 24)
•The duty applies when considering whether removal should be directed (and in any exercise of an immigration function) (para 24)
•The statutory guidance must be applied unless reasons are given (para 32)
•The statutory guidance defines safeguarding and promoting the welfare of children and includes (para 27) ◦protecting children from maltreatment;
◦preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);
◦ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and
◦undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.

•The duty makes the best interests of children a primary consideration, albeit not the only consideration (para 30 and 33)

This can be used in applications for judicial review but can also be pleaded in tribunal cases, on the ‘not otherwise in accordance with the law’ ground of appeal. It will be interesting to see how far, if at all, the tribunal is willing itself to take into account the section 55 duty, but it seems more likely to me that decisions which entirely fail to have regard to it will be allowed as being unlawful, requiring them to be re-made rather than leading to grants of status.

The final paragraph is what appears to have happened in the second of these two cases.

Refusing applications where both the rules and previous judgements say that they should be allowed seems pointless and time wasting. I wonder why the ECOs are doing it?

Incompetence or instructions from the top?

[frances]

7by7

I have followed many of your posts and TVF is very fortunate to have you online and posting in such an informed and intelligent manner, without bias or bile.

I have a simple but ultimately unanswered question..I have tried for many weeks to get a definitive answer prior to application.

My partner is settled and employed in the UK.

Neither of our salaries solely meet the financial requirement to bring our daughter (my stepdaughter) to settle. Our combined salaries meet the requirement.

I have tried to confirm that our household (ie father and stepmother) income meets and exceeds the requirement. But I am not confident that UKBA accepts "combined salaries' in the case of a child application.

I would be very grateful if you could confirm that we can use 2 incomes to meet the requirement. We have all of the other documents required.

[bobrussell]

See:

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/children/

especially:

If you or one of the child's parents is applying to enter, remain, or has limited leave to remain in the UK as a partner or parent, you must meet the financial requirement. In all other cases you will need to show that you have accommodation where you can all live without help from public funds to bring your child to settle in the UK.

As both of you appear to be settled in the UK you should only be required to show that you have suitable accommodation and funds without help from public funds. I don't believe the income threshold is applicable to applications on behalf of children.

These can be tricky applications so perhaps wait for confirmation from someone more experience than I am! Might be more visible if you start a new thread as it may not get seen on this one!

[7by7]

Frances, a lot depends on the immigration status of your partner.

You say that s/he is settled in the UK; does this mean that they have Indefinite Leave to Remain?

If so, then as Bob says, here is no minimum income/savings required; you only need to show that the child will be supported and accommodated without recourse to public funds.

If your partner does not yet have ILR, then the financial requirement does need to be met; i.e. a minimum income of £18,600 p.a. plus £3,800p.a. for the child.

As you partner is working legally in the UK, then you can combine both incomes to meet the requirement.

See para E-ECC.2.2. of Family life as a child of a parent with limited leave as a partner or parent.