M & Anor v Secretary of State for the Home Department

Rule 297(iv) of the Immigration Rules is not confined to the physical condition of accommodation. Whether a child is accommodated adequately by a parent includes the parent’s suitability and the child’s welfare and safety, including the risk of serious abuse. The provision must be read purposively, consistently with its aim of promoting family life without recourse to public funds. The express care-arrangements requirement in rule 297(i)(f) does not exclude welfare considerations under rule 297(iv). Refusal to admit a child to protect the child from serious harm is consistent with Article 8.

M and A were children of British citizen parents settled in the United Kingdom. They had lived in India with their maternal grandparents and had never lived with their parents. Although the parents’ accommodation was physically adequate, an entry clearance officer refused admission because of concerns about the children’s welfare and the parents’ history of alleged abuse. The refusal was initially made under rule 297(i)(f) of the Immigration Rules and was later maintained under rule 297(iv).

An adjudicator dismissed the appeal, and the Immigration Appeal Tribunal upheld that decision. Permission to appeal to the Court of Appeal was limited to whether adequate accommodation under rule 297(iv) included non-material welfare and safety concerns.

Disposition. The Court of Appeal unanimously dismissed the appeal. No order was made as to costs.

1. Purposive interpretation. Dyson LJ delivered the leading judgment. Rule 297 must be interpreted in its context and in accordance with its evident purpose: promoting family life by enabling children to join settled parents or relatives, subject to the rule’s conditions, including age, dependence, adequate accommodation and maintenance without recourse to public funds. This purpose was consistent with Article 8.
2. Meaning of adequate accommodation. The natural meaning of being accommodated adequately by a parent is not limited to the physical qualities of the premises. Accommodation may be inadequate because it is too small, damp or otherwise physically unsuitable, but it may also be inadequate because a parent is dangerous. The wording focuses attention on the parent’s role and permits consideration of the risk of physical or sexual abuse and other serious harm. The Vice Chancellor similarly emphasised that the provision addressed both the place occupied and the suitability of the person by whom the child was accommodated.
3. Relationship with rule 297(i)(f). The specific requirement for suitable care arrangements in rule 297(i)(f) applies to the particular case of a child joining one parent or relative. Its express inclusion does not imply that care and welfare are irrelevant under rule 297(iv), which applies across the circumstances in rule 297(i). The omission of equivalent wording from rule 297(iv) therefore did not require the narrow interpretation.
4. Child welfare and Article 8. Hale LJ explained that welfare extends beyond money and physical comfort. If parental care falls below good enough parenting so that the child suffers, or is likely to suffer, significant harm, the accommodation cannot be adequate. Any protective intervention must be necessary and proportionate, and refusal of admission to protect a child from that degree of harm would not breach Article 8.
5. Other regulations. The Asylum Support Regulations 2000 did not assist the construction of rule 297(iv). They were made later and dealt with a different subject matter.

• Court of Appeal (Civil Division) — [2003] EWCA Civ 263: dismissed the appeal and made no order as to costs.
• Immigration Appeal Tribunal — 28 May 2002: dismissed the appeal; permission to appeal to the Court of Appeal was granted only on the interpretation of adequate accommodation under rule 297(iv).
• Adjudicator — 12 November 2001: dismissed the appeal against the entry clearance refusal, addressing rule 297(i)(f).
• Entry clearance officer — refused the application under rule 297(i)(f), later maintaining the refusal under rule 297(iv).