SF v The Secretary of State for the Home Department

Where the Secretary of State’s published guidance clearly indicates how a reasonableness assessment should be resolved, the Tribunal should normally take that guidance into account and apply it. This remains so although the appellant has no ground that the decision was not in accordance with the law.

That approach promotes consistency between cases determined by the Secretary of State and those determined on appeal. The Tribunal may depart from the guidance where it has materially fuller information or the case is exceptional, but should give effect to clear guidance unless there is a reason not to do so.

The appellants were an Albanian mother and her children. They challenged decisions refusing their claims and directing their removal as illegal entrants.

The First-tier Tribunal dismissed the appeals. It wrongly declined to treat the youngest child as a British citizen and concluded that the family could live in Albania. On appeal, the Secretary of State accepted that the child was British.

The remaining issue was whether it was unreasonable to expect that child to leave the United Kingdom with the mother and siblings, and whether the Tribunal should take account of the Secretary of State’s family-migration guidance when determining that issue.

1. The appeals were allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision and substituted a decision allowing all three appeals.

2. The First-tier Tribunal had erred in failing to recognise the youngest child as a British citizen. That error alone had not been shown to make its assessment necessarily different. The decisive further consideration was the Secretary of State’s August 2015 family-migration guidance, which was in force when the First-tier Tribunal heard and decided the appeals.

3. The guidance indicated that, save in cases involving criminality, it would be unreasonable to expect a British citizen child to leave the European Union with a parent or primary carer who must return outside the European Union. Leave would usually be appropriate where there was a genuine and subsisting parental relationship, subject to weighty conduct justifying separation and a realistic alternative carer.

4. On the accepted facts, the mother’s relationship with the British child did not involve criminality or conduct capable of justifying separation. No alternative primary carer had been identified. Removing the mother and the other children would also separate the British child from both the mother and siblings. Application of the guidance therefore made it unreasonable to expect the child to leave the United Kingdom.

5. Although the post-2014 statutory appeal regime did not provide a ground that the decision was not in accordance with the law, clear guidance remained relevant to the Tribunal’s own assessment of reasonableness. Ordinarily, both tiers should take it into account so that tribunal decisions accord, so far as possible, with favourable decisions the Secretary of State makes under the same guidance. Departure may be justified by fuller information or exceptional circumstances.

6. The duration of leave was left to the Secretary of State.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeals, set aside the First-tier Tribunal’s decision, and substituted a decision allowing the appeals.
• First-tier Tribunal: Dismissed the appeals on the basis that the Albanian family could live in Albania and did not treat the youngest child as a British citizen for the appeal.