Laurent wa Mundeba v Entry Clearance Officer - Nairobi

Under paragraph 297(i)(f) of the Immigration Rules, serious and compelling considerations set a high threshold. The decision-maker must assess whether the child’s exclusion is undesirable by reference to the child’s welfare and best interests, including emotional needs, care arrangements, unmet needs, and any neglect, abuse or unacceptable social conditions.

The statutory duty in section 55 of the Borders, Citizenship and Immigration Act 2009 applies only to children in the United Kingdom. Nevertheless, where Article 8 is engaged, a child’s best interests are a primary consideration under Article 3 of the UN Convention on the Rights of the Child.

Article 8 will rarely add materially to the family-admission criteria where the proposed relative has not previously cared for the child and the child’s basic welfare needs are met abroad.

The appellant, a minor living in the Democratic Republic of Congo, sought entry clearance to settle in the United Kingdom with his adult sister. He had been separated from his parents and sister during conflict and was being cared for by the Girl Guides Association in Kinshasa. The sister maintained regular telephone contact and sent money, but had not previously been his carer.

The Entry Clearance Officer refused the application. Before the First-tier Tribunal, the issues of relationship and sole responsibility ceased to be relied upon. The First-tier Tribunal instead considered paragraph 297(i)(f) of the Immigration Rules and dismissed the appeal because the evidence did not establish serious and compelling family or other considerations making exclusion undesirable. It also dismissed the Article 8 claim.

The appellant appealed on the basis that the judge had overlooked material evidence, made insufficient findings, and conducted an inadequate proportionality assessment.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. It was entitled to find that the evidence did not meet the high threshold in paragraph 297(i)(f) of the Immigration Rules.

2. The words “serious and compelling” bear their natural and ordinary meaning. They require considerations that are persuasive and powerful, not merely a natural wish for family members to live together. The assessment is one of degree and kind, directed to whether exclusion of the child is undesirable.

3. The assessment necessarily includes the child’s welfare and best interests. Family considerations include emotional needs. Other considerations may include an unacceptable social or economic environment. Relevant inquiries include whether there is neglect or abuse, unmet welfare needs, and stable physical-care arrangements. The cumulative circumstances must be sufficiently serious and compelling to require admission.

4. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not apply because the appellant was outside the United Kingdom. However, an entry-clearance decision affecting a child is an administrative action concerning children. Where Article 8 is engaged, Article 3 of the UN Convention on the Rights of the Child requires the child’s best interests to be a primary consideration.

5. On the evidence, the appellant was receiving accommodation, food, and medical care. The absence of education, regular remittances and contact with his sister, and the emotional consequences of their history did not cumulatively establish the required circumstances. The Tribunal emphasised that an orphaned child with a sibling in the United Kingdom is not automatically entitled to admission.

6. The Article 8 proportionality conclusion was also open to the First-tier Tribunal. The sister had never cared for the appellant, they had been separated for years, and their sibling relationship could be maintained across countries. Article 8 did not materially add to the basic family-admission criteria on these facts.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal, finding no material error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against the refusal of entry clearance under paragraph 297(i)(f) of the Immigration Rules and on Article 8 grounds.