MM v The Secretary of State for the Home Department

An EU citizen child is not a qualifying child under section 117D(1) of the Nationality, Immigration and Asylum Act 2002 unless the child is British or has lived in the United Kingdom continuously for seven years. That distinction does not infringe Article 18 TFEU where the non-British parent has no EU-law residence right and the family-life situation falls outside the scope of EU law.

A child’s best interests must be assessed independently of parental misconduct and in the real-world context of the parents’ immigration positions. Those interests are a primary consideration, but may be outweighed by the public interest in immigration control in an Article 8 assessment.

The Iranian appellant appealed against First-tier Tribunal Judge Fox’s dismissal of his asylum and human-rights appeal. His protection claim was found to have been fabricated, and that finding was not challenged.

The appellant lived with his Polish partner and their young Polish daughter. He challenged the Article 8 assessment, contending that the judge had wrongly treated parental misconduct as relevant to the child’s best interests. He also argued that the daughter should be treated as a qualifying child for section 117B(6) purposes because excluding an EU citizen child who had not lived in the United Kingdom for seven years was unlawful nationality discrimination under EU law.

The central issues were whether the First-tier Tribunal had erred in its best-interests analysis, whether the EU-law point was within its jurisdiction, and whether the statutory distinction contravened Article 18 TFEU.

1. The appeal was dismissed. The First-tier Tribunal decision was set aside for errors of law, but the Upper Tribunal remade the Article 8 decision and dismissed the appeal.

2. The First-tier Tribunal had erred by allowing adverse findings about the parents’ asylum claim to affect its assessment of their daughter’s best interests. Under Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, a child must not be blamed for parental conduct. The assessment also had to be undertaken in the real-world context explained in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874.

3. The proposed EU-law discrimination ground was neither raised below nor Robinson-obvious. It was a new EU-law matter which the First-tier Tribunal could not determine without the statutory route or the Secretary of State’s consent. Its findings about whether the appellant’s partner was a qualified person under the 2016 Regulations were therefore made without jurisdiction.

4. Section 117B(6) did not apply. The appellant’s daughter was not a qualifying child under section 117D(1), because she was Polish, not British, and had not lived in the United Kingdom continuously for seven years. The different treatment did not engage Article 18 TFEU. The appellant was a third-country national, was not his daughter’s family member for the purposes of Directive 2004/38/EC, and had no recognised derivative EU residence right. The family-life issue was therefore a wholly internal situation outside the scope of the Treaties.

5. On remaking the Article 8 assessment, the child’s best interests were to remain with the family unit in the United Kingdom or Poland, and it would not be reasonable to expect her to relocate to Iran. Those interests remained a primary consideration. They were nevertheless outweighed by the appellant’s unlawful entry and residence, fabricated asylum claim, failure to meet the Immigration Rules, limited English, and the weighty public interest in effective immigration control. Removal was proportionate under Article 8(2) ECHR.

• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed. The Tribunal set aside the First-tier Tribunal’s decision for errors concerning the child’s best interests and jurisdiction, preserved the unchallenged asylum findings, and remade the Article 8 decision against the appellant.

• First-tier Tribunal: Judge Fox, decision promulgated on 30 October 2019, dismissed the appeal against the respondent’s refusal dated 18 July 2019 of the appellant’s asylum and human-rights claim.