SD v Entry Clearance Officer, Colombo

In an entry-clearance case, a child’s British citizenship is a relevant consideration in assessing that child’s best interests and the proportionality of refusing a parent admission. It gives access to rights and benefits including residence, education, healthcare and participation in community life.

Its weight is fact-sensitive. British citizenship is neither a trump card nor necessarily a powerful factor. The decision-maker must consider the child’s other nationality and the practical rights and benefits available in the country where the child lives.

There is no entry-clearance equivalent to section 117B(6) of the Nationality, Immigration and Asylum Act 2002. A parent who cannot meet the financial requirements succeeds only where refusal would produce unjustifiably harsh consequences contrary to article 8.

The appellant, a Sri Lankan national, applied for entry clearance to join her British-citizen husband in the United Kingdom. Their two young children lived with her in Sri Lanka and were British and Sri Lankan nationals. The application failed because the financial requirements of Appendix FM were not met.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal set aside that decision for material error because it had not considered the children’s British nationality. On remaking the appeal, the Tribunal considered whether the refusal caused unjustifiably harsh consequences under Appendix FM and was disproportionate under article 8 of the European Convention on Human Rights.

The central issue was the weight to be given to the British citizenship of children living abroad with an entry-clearance applicant parent.

1. Appeal dismissed. The appellant did not meet the financial requirements of Appendix FM at the date of application or decision. The later job offer did not establish a credible and independently verified alternative source of income under Appendix FM-SE.
2. The Tribunal held that article 8 family life was engaged. The suggested private-life limb could not be considered in an entry-clearance case, consistently with Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393. Nationality nevertheless remained relevant to the proportionality assessment of family life.
3. British citizenship was relevant to the children’s best interests. It included the opportunity to live in the United Kingdom, obtain education, access healthcare and welfare provision, and integrate into British society. It was not, however, a trump card or a factor automatically carrying substantial weight. Its significance depended on the individual facts, including dual nationality and the rights and benefits available through that other nationality.
4. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 had no application. Its language concerns removal from, and whether a child may reasonably be expected to leave, the United Kingdom. Neither statute, the Immigration Rules nor policy supplied an equivalent entry-clearance route for a parent and British-citizen child living abroad.
5. The children’s best interests lay in living with both parents. Their welfare was adversely affected by separation from their father. But they were receiving care from their mother, education in an English-speaking school, and the rights and benefits of their Sri Lankan nationality. The evidence did not show poor or compelling circumstances in Sri Lanka, and the sponsor had not shown that living there with the family would cause insurmountable obstacles or unjustifiably harsh consequences.
6. Accordingly, neither the refusal nor the continued separation pending a compliant fresh application was disproportionate. The refusal did not breach article 8.

• Upper Tribunal (Immigration and Asylum Chamber): remade the appeal after setting aside the First-tier Tribunal decision for material error of law; appeal dismissed.
• First-tier Tribunal: Judge Burns dismissed the appellant’s appeal on 4 September 2018.