Khatoon, R (on the application of) v The Entry Clearance Officer, Islamabad & Anor

Paragraph 27 of the Immigration Rules prevents refusal of entry clearance solely because an applicant turned 18 between applying and the decision. It does not deem the applicant to have remained a child for all other requirements of the Rules. Section 55 of the Borders, Citizenship and Immigration Act 2009 does not alter that construction.

A tribunal need not consider an unraised Article 8 claim of its own motion unless a favourable and obvious Convention point is readily discernible. An adult applicant with only limited evidence of family life and dependency did not meet that threshold.

The appellant, a Pakistani national, applied shortly before her eighteenth birthday for entry clearance to join her settled father and family in the United Kingdom. The Entry Clearance Officer refused the application. The First-tier Tribunal dismissed her appeal after finding that adequate accommodation and maintenance without recourse to public funds had not been established.

Article 8 was not raised before the First-tier Tribunal. The Upper Tribunal refused permission to appeal. The Administrative Court declined judicial review of that refusal: [2013] EWHC 972 (Admin). The appeal concerned the proper construction of paragraph 27 of the Immigration Rules and whether the tribunals should have considered Article 8.

Appeal dismissed. Laws LJ gave the judgment of the court, with which Tomlinson and Briggs LJJ agreed.

1. The natural and ordinary meaning of paragraph 27 of the Immigration Rules, consistently with Mahad v Entry Clearance Officer [2009] UKSC 16, was that an applicant in the relevant child-entry categories could not be refused solely because he or she turned 18 after applying. The provision did not require the decision-maker to treat the applicant as still under 18 at the decision date. The remaining requirements of paragraph 297, including adequate maintenance and accommodation, still applied.

2. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not expressly or implicitly require a child’s application to be decided before the eighteenth birthday, or as though it had been so decided. Nor did section 85(5) of the Nationality, Immigration and Asylum Act 2002 import the whole law concerning children’s rights into an entry-clearance appeal when the applicant was no longer a child. Special circumstances, such as unconscionable delay, might require a decision outside the Rules, but did not justify an artificial construction of paragraph 27.

3. The First-tier Tribunal had no obligation to consider Article 8 where it had not been raised, unless it was readily discernible as an obvious Convention point favouring the applicant. That was the settled principle in Robinson [1998] QB 929. The evidence disclosed no such point: the appellant was a young adult living with an aunt, with limited evidence of family dependency, and had not proved adequate maintenance without public funds.

4. The appellant’s challenge to the First-tier Tribunal’s maintenance finding raised no point of law. The court therefore upheld the refusal to permit an appeal to the Upper Tribunal.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the refusal of judicial review.
• High Court, Administrative Court — declined to quash the Upper Tribunal’s refusal of permission to appeal: [2013] EWHC 972 (Admin).
• Upper Tribunal (Immigration and Asylum Chamber) — refused permission to appeal from the First-tier Tribunal’s determination.
• First-tier Tribunal (Immigration and Asylum Chamber) — dismissed the appeal against refusal of entry clearance.