Glydelyn Mae Caguitla v The Secretary of State for the Home Department

Under paragraphs 197 and 199 of the Immigration Rules, an applicant must either be under 18 or have current leave as the child of a person with leave under paragraphs 128–193. Leave granted as the family member of a British citizen does not satisfy the second alternative.

The parent relied upon under paragraphs 197(i) or 199(i) must have leave. A British citizen does not have leave, and the Rules do not extend those provisions to children of British citizens merely because the parent previously held indefinite leave. The different treatment is intentional and does not itself make refusal disproportionate under article 8.

The appellant, a Philippine national, sought indefinite leave to remain as the child of her mother, who had entered the United Kingdom as an overseas domestic worker, later obtained indefinite leave to remain and subsequently became a British citizen.

The First-tier Tribunal dismissed her appeal against refusal of indefinite leave to remain. The Upper Tribunal considered the construction of paragraphs 197 and 199 of the Immigration Rules, including whether the appellant had current leave in the relevant capacity and whether references to a parent with leave included a British citizen. A limited article 8 argument was also considered.

1. Paragraph 197(ii). The expression current leave to enter or remain in this capacity refers to leave as the child of a person with limited leave under paragraphs 128–193. It does not refer to a capacity of being under 18. The provision therefore applies to a person who is under 18, or to a person who is not under 18 but has current leave as the child of a person with the specified leave.
2. The appellant’s leave, granted as the family member of a British citizen, did not constitute current leave in the capacity required by paragraph 197(ii). She was over 18 at the relevant date and therefore satisfied neither alternative.
3. Under paragraphs 197(i) and 199(i), the parent relied upon for eligibility must have leave under the specified paragraphs. By virtue of section 3(1) of the Immigration Act 1971, leave is applicable only to persons who are not British citizens. The appellant’s mother, being a British citizen, could not satisfy that requirement.
4. The omission of British citizens from paragraphs 197 and 199 was not accidental. Paragraph 196D, forming part of the same scheme, expressly recognises a relationship with a British citizen. The Rules therefore distinguish between children of persons subject to immigration control and children of British citizens.
5. The Rules did not establish that refusal was disproportionate under article 8. The appellant fell outside the Rules for two independent reasons, and the First-tier Tribunal’s alleged error concerning paragraph 197(ii), if made, was immaterial. The appeal was dismissed.

• First-tier Tribunal. Judge S Taylor dismissed the appellant’s appeal against refusal of indefinite leave to remain.
• Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal found no material error of law and dismissed the appeal.