Case No. UKUT-00227-(IAC)

be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. (6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. ” 14. M was a child, present in the United Kingdom, when the impugned decisions of the ECO were made. Accordingly, section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”) is engaged. This provides in material part: “(1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official. (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)… (6) In this section— “children” means persons who are under the age of 18; “customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1” . The statutory guidance made pursuant to section 55(2) is, for convenience, reproduced in the Appendix to this judgment. This will hopefully serve to give this measure the substantially greater prominence which, given my experience in children’s immigration and asylum cases, it merits. 15. The United Nations Convention on the Rights of the Child (“ UNCRC ”), which has been ratified by the United Kingdom, contains, in Article 3(1) the provision wherein the genesis of section 55 reposes. Article 3(1) provides: “ Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The argument developed on behalf of the Appellants also pray in aid certain other provisions of UNCRC. Article 6(2) “States Parties shall ensure to the maximum extent possible the survival and development of the child.” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.” 16. In this context the Appellants also draw on the United Nations General Comment Number 6/2005, “Treatment of Unaccompanied and Separated Children outside their Country of Origin” and, in particular, the following passages: Paragraph 79 “The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child’s view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated. Efforts to find durable solutions for unaccompanied or separated children should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a child being unaccompanied or separated. Following a rights-based approach, the search for a durable solution commences with analysing the possibility of family reunification.” Paragraph 82 “Family reunification in the country of origin is not in the best interests of the child and should therefore not be pursued where there is a “reasonable risk” that such a return would lead to the violation of fundamental human rights of the child. Such risk is indisputably documented in the granting of refugee status or in a decision of the competent authorities on the applicability of non-refoulement obligations (including those deriving from article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on Civil and Political Rights). Accordingly, the granting of refugee status constitutes a legally binding obstacle to return to the country of origin and, consequently, to family reunification therein. Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the child is of paramount importance and a precondition for the enjoyment of any other rights.” Paragraph 83 “Whenever family reunification in the country of origin is not possible, irrespective of whether this is due to legal obstacles to return or whether the best-interests-based balancing test has decided against return, the obligations under article 9 and 10 of the Convention come into effect and should govern the host country’s decisions on family reunification therein. In this context, States parties are particularly reminded that “applications by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with by States parties in a positive, humane and expeditious manner” and “shall entail no adverse consequences for the applicants and for the members of their family” (art. 10 (1)). Countries of origin must respect “the right of the child and his or her parents to leave any country, including their own, and to enter their own country” (art. 10 (2)).” 17. I record at this juncture that, invoking the well known “opt out” TEU mechanism, the United Kingdom (in common with Ireland and Denmark) does not subscribe to the soi-disant family reunification directive viz Council Directive 2003/86/EC of 22 September 2003. As a result, the Appellants are unable to invoke directly the benefits of Article 3, which provides: 1. This Directive shall apply where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third country nationals of whatever status. 2. This Directive shall not apply where the sponsor is: (a) applying for recognition of refugee status whose application has not yet given rise to a final decision; (b) authorised to reside in a Member State on the basis of temporary protection or applying for authorisation to reside on that basis and awaiting a decision on his status; (c) authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status. 3. This Directive shall not apply to members of the family of a Union citizen. 4. This Directive is without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other; (b) the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the legal status of migrant workers of 24 November 1977. 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions.” However, I consider that indirect reliance on aspects of this measure may be possible via the guidance published by the Secretary of State under section 55(2) of the 2009 Act: see [31] infra . 18. In contrast, Council Directive 2004/83/EC of 29 April 2004, the co-called “Qualification Directive” does apply in the United Kingdom, having been transposed by the Refugee or Person in need of International Protection (Qualification) Regulations 2006. This prescribes “ minimum standards for the qualification and status of third country nationals or stateless persons as persons who otherwise need international protection and the content of the protection granted. ” Article 23 provides: “ Maintaining family unity 1. Member States shall ensure that family unity can be maintained. 2. Member States shall ensure that family members of the beneficiary of refugee or subsidiary protection status, who do not individually qualify for such status, are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with national procedures and as far as it is compatible with the personal legal status of the family member. In so far as the family members of beneficiaries of subsidiary protection status are concerned, Member States may define the conditions applicable to such benefits. In these cases, Member States shall ensure that any benefits provided guarantee an adequate standard of living. 3. Paragraphs 1 and 2 are not applicable where the family member is or would be excluded from refugee or subsidiary protection status pursuant to Chapters III and V. 4. Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce or withdraw the benefits referred therein for reasons of national security or public order. 5. Member States may decide that this Article also applies to other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of refugee or subsidiary protection status at that time.” Per Article 3: “ More favourable standards Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.” 19. The governing legal framework is completed by certain well established principles of domestic, international and European human rights law. I summarise these in no particular hierarchical order. First, there is the familiar principle that every state has the right to control entry into and stay in its territory, sometimes described as the “sovereignty principle”, which finds expression in the opinion of Lord Bingham of Cornhill in R (Bapio Action Limited) v SSHD [2008] 1 AC 1003, at [4]: “ It is one of the oldest powers of a sovereign state to decide whether any, and if so which, non-nationals shall be permitted to enter its territory and to regulate and enforce the terms on which they may do so. ” The Strasbourg decisions belonging to this sphere give emphasis to the consideration that the central issue in these appeals is that formulated in [10] above. Thus, in one of its leading pronouncements, the ECtHR has stated: “ The Court reiterates that in the context of both positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general observation for a State to respect immigrant’s choice of the country of their residence and to authorise family reunion in its territory. ” See Rodrigues v The Netherlands [2007] 44 EHRR 34, paragraph [39]. 20. The margin of appreciation enjoyed by the State in this context is emphasised in Draon v France [2006] 42 EHRR 40, where, in a moderately detailed treatise, the Grand Chamber pronounced at [105] – [108]: “ 1. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective “respect” for family life. The boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, for example, Nuutinen v. Finland , no. 32842/96, 27 June 2000, § 127, and Kutzner v. Germany , no. 46544/99, 26 February 2002, §§ 61 and 62). Furthermore, even in relation to the positive obligations flowing from the first paragraph, “in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance” (see Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, § 41). 2. “Respect” for family life implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally (see Marckx , cited above, § 45). The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other (see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, § 32; X and Y v. the Netherlands , judgment of 26 March 1985, Series A no. 91, p. 11, § 23; López Ostra v. Spain , judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55; Guerra and Others v. Italy , judgment of 19 February 1998, Reports 1998-I, p. 227, § 58; Botta v. Italy , judgment of 24 February 1998, Reports 1998-I, § 35; and Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). 3. However, since the concept of respect is not precisely defined, States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, Series A no. 94, § 67, and Zehnalova and Zehnal , cited above). 4. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom , judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.” 21. In decision making contexts in which the public interest engaged has the democratic stamp of parliamentary scrutiny, debate and decision, culminating in primary legislation, the public interest is especially strong and the role of the court or tribunal as arbiter of proportionality is correspondingly reduced: see SS (Nigeria) v SSHD [2013] EWCA Civ 550, per Laws LJ at [42]: “ But the margin of discretionary judgment enjoyed by the primary decision maker, though variable, means that the Court’s role is kept in balance with that of the elected arms of government and this serves to quieten constitutional anxieties that the Human Rights Act draws the Judges onto ground they should not occupy ….. ” [and at 47]: “ Upon the question whether the principle of minimal interference is fulfilled, the primary decision maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. ” The variable nature of the primary decision maker’s margin of appreciation, or discretionary area of judgment, is illustrated in R (Quila) v SSHD [2012] 1 AC 621 where the legal rule in play which precluded the claimants from securing leave to remain in the United Kingdom was a provision of the Immigration Rules which do not, of course, have the status of parliamentary legislation and do not, therefore, attract the equivalent imprimatur of democratic approval: Huang v SSHD [2007] 2 AC 167, at [17]. Furthermore, it is appropriate for the court or tribunal to take into account whether the Secretary of State had access to “ special sources of knowledge and advice ” in formulating the rule or rules under scrutiny: per Lord Wilson JSC at [46]. 22. Moreover, as noted by this Tribunal recently in ZAT and Others v SSHD (Article 8 ECHR – Dublin Regulation – Interface – Proportionality) IJR [2016] UKUT 61 (IAC), after [57]: “ Lesser weight is to be accorded to the Secretary of State’s assessment to the balance to be struck between the public interest and the rights of the individual in circumstances where the Secretary of State’s insistence upon full adherence to the [rule in question] embodies a generalised assessment, a broad brush, to be contrasted with a specific, considered response and decision on a case by case basis. ” The ensuing sentence in the same paragraph resonates, as it applies fully to the present appeals: “ …. The platform upon which the Secretary of State has contested these proceedings is quite unrelated to the individual circumstances, the needs and merits of any of the seven Applicants. ” As in ZAT and Others , the present proceedings concern a blanket exclusion, or prohibition. 23. In Secretary of State for the Home Department v SS (Congo) and Others [2015] EWCA Civ 387 the Court of Appeal paid specific attention to the factor of children in the context of applications for leave to enter and leave to remain in the United Kingdom. Having noted that the “Article 8 code”, contained in Appendix FM to the Immigration Rules, constituted an “ attempt ” by the Secretary of State to r