Eco New Delhi v SG

A child who remains in the satisfactory daily care of a biological parent abroad will not ordinarily satisfy the Immigration Rules on sole responsibility or serious and compelling circumstances merely because admission would offer better education or economic prospects.

The exclusion of a spouse in an actually polygamous marriage pursues a legitimate aim. Its indirect effect on a child is justified where the child can remain with that parent. Immigration Rules paragraph 296 does not itself impose an absolute bar on admission and must be read consistently with Articles 8 and 14.

Article 8 proportionality remains fact-sensitive. The wishes of the child and parents inform, but do not determine, best interests. It may be reasonable for a sponsor with no established life in the United Kingdom to choose between migration with part of the family and remaining abroad with the family intact.

The claimant was a Nepalese child whose father, a former Ghurkha soldier, had been granted settlement in the United Kingdom. Her father’s second wife and their son had also obtained entry clearance. The claimant lived in Nepal with her father, her biological mother, her stepmother and her half-brother.

An Entry Clearance Officer refused the claimant’s application because her father did not have sole responsibility and there were no serious and compelling circumstances making exclusion undesirable. Judge Radcliffe allowed her appeal, finding sole responsibility. A differently constituted Upper Tribunal set that decision aside for error of law and directed a further hearing on Article 8, the child’s best interests and section 55.

The central issues were whether the claimant met the Rules, whether the Ghurkha policies assisted her, and whether refusal of entry clearance was disproportionate or discriminatory under Articles 8 and 14.

1. The Entry Clearance Officer’s appeal succeeded. The Tribunal remade the decision by dismissing the claimant’s appeal on all grounds.

2. Where a child’s natural parent has cared for, and continues satisfactorily to care for, the child abroad, parental responsibility is joint. A sponsoring parent’s status as sole breadwinner and principal decision-maker does not establish sole responsibility. The exceptional cases identified in the authorities concern circumstances in which the non-sponsoring parent can no longer provide satisfactory care.

3. Better education and economic prospects in the United Kingdom were not serious and compelling considerations making exclusion undesirable. The claimant had appropriate care from her mother, a good local school, financial support from her father and no medical need. Her wishes and those of her parents were relevant to her best interests but were not decisive.

4. The Ghurkha policies did not give children of actually polygamous marriages more favourable treatment than other children. The legitimate aim of preventing the formation of polygamous households in the United Kingdom justified the indirect effect of excluding a child who remained in the care of the excluded mother.

5. Immigration Rules paragraph 296 was not an absolute prohibition on admission. The Tribunal doubted that it could lawfully prevent admission where the sponsor had sole responsibility, exclusion was otherwise undesirable, or the Article 8 balance required admission. That issue did not assist this claimant, who failed the ordinary requirements.

6. Applying Article 8, the refusal was proportionate. The father had no established home, employment or family life in the United Kingdom and could reasonably remain in Nepal with the family intact. If he chose to migrate with only some family members, the resulting separation was a consequence of that choice. The claimant’s continued care by her mother outweighed the asserted material advantages of admission.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer’s appeal against Judge Radcliffe’s decision was allowed. The earlier decision was set aside for error of law and the claimant’s appeal was dismissed on remaking.
• First-tier Tribunal: On 22 June 2011, Judge Radcliffe allowed the claimant’s appeal after finding that her father had sole responsibility.
• Entry Clearance Officer: Entry clearance was refused on 29 October 2010 under the Immigration Rules and on Article 8 grounds.