Entry Clearance Officer - Kingston v T

Section 55 of the Borders, Citizenship and Immigration Act 2009 protects children who are in the United Kingdom. It does not impose a statutory duty in respect of a child abroad seeking entry clearance.

Where there is reason to believe that exclusion may jeopardise an overseas child’s welfare, the decision-maker must nevertheless address the child’s welfare through the Immigration Rules, Article 8 and applicable non-statutory guidance. The child’s best interests are a primary consideration. Proper inquiry may require investigation and, where appropriate, hearing from the child.

An immigration appeal should ordinarily be decided on its merits. It should not be allowed merely to require a fresh lawful decision where the Tribunal can determine the relevant facts and substantive grounds itself.

T, a Jamaican child, applied to join her mother in the United Kingdom under paragraph 298 of the Immigration Rules. The Entry Clearance Officer refused the second application.

The First-tier Tribunal allowed T’s appeal only to the extent of remitting it to the Entry Clearance Officer for consideration under section 55 of the Borders, Citizenship and Immigration Act 2009, without hearing evidence or making findings of fact. The Entry Clearance Officer appealed.

The central issues were whether section 55 applied to an entry-clearance applicant outside the United Kingdom and, if not, whether the First-tier Tribunal should nevertheless have remitted the case rather than determine its substance.

1. The appeal was allowed. The First-tier Tribunal had made a material error of law by treating section 55 as requiring a further decision by the Entry Clearance Officer. Its decision was set aside.

2. Section 55(1) of the Borders, Citizenship and Immigration Act 2009 is unambiguously confined to children in the United Kingdom. T had never been in the United Kingdom. The statutory duty, and the duty to have regard to statutory guidance under section 55(3), therefore did not apply to her application. Internal operational guidance could not extend or interpret the statutory duty, and was in any event directed to a different issue.

3. The overseas guidance requiring staff to act in the spirit of section 55 did not create a separate, sufficiently defined legal duty whose breach rendered the decision not in accordance with the law. It could, however, require enquiries where there was reason to suspect a child required protection or safeguarding.

4. The Entry Clearance Officer and the Tribunal were required to assess the application under the Immigration Rules, including whether compelling circumstances made exclusion undesirable, and to act compatibly with Article 8. T’s best interests were a primary consideration. The evidence raised potentially serious welfare concerns. Proper assessment could require further investigation and an interview with T, who was old enough to express her views.

5. The appellate tribunals decide statutory appeals; they do not generally supervise decision-making through a broad judicial-review jurisdiction. Although a failure to consider an applicable external policy may leave a decision incomplete, the Tribunal should decide the merits where it fairly can. Here there had been no substantive hearing and material facts were disputed. The appeal was remitted to the First-tier Tribunal for fact-finding and redetermination, with directions for enquiries and an expeditious hearing.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Entry Clearance Officer’s appeal, set aside the First-tier Tribunal’s decision and remitted the entry-clearance appeal for a substantive hearing.
• First-tier Tribunal: on 7 July 2011, allowed T’s appeal only to the extent of remitting the application to the Entry Clearance Officer for consideration under section 55 of the Borders, Citizenship and Immigration Act 2009.