Case No. UKUT-00043(IAC)

of their childhood as well as the loss of their homeland; (c) the loss of educational opportunities available to the children in Australia; and (d) their resultant isolation from the normal contacts of children with their mother and their mother’s family.” … 32. Nor should the intrinsic importance of citizenship be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults . [Emphasis added] As Jacqueline Bhaba (in ‘The “Mere Fortuity of Birth”? Children, Mothers, Borders and the Meaning of Citizenship’, in Migrations and Mobilities: Citizenship, Borders and Gender (2009), edited by Seyla Benhabib and Judith Resnik, at p 193) has put it: ‘In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child’s family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.’” 59. In Zoumbas , Lord Hodge, having identified as one of seven legal principles to govern best interests of the child assessment in immigration cases that: “(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; …” stated that: “12. Mr Lindsay [a different Mr Lindsay] for Mr Zoumbas also founded on a statement in the judgment of Lord Kerr of Tonaghmore in ZH (Tanzania) at para 46 in support of the proposition that what is determined to be in a child’s best interests should customarily dictate the outcome of cases and that it will require considerations of substantial moment to permit a different result. In our view, it is important to note that Lord Kerr’s formulation spoke of dictating the outcome of cases “such as the present” and that in ZH (Tanzania) the court was dealing with children who were British citizens. In that case the children by virtue of their nationality had significant benefits, including a right of abode and rights to future education and healthcare in this country, which the children in this case, as citizens of the Republic of Congo, do not. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover in H(H) Lord Kerr explained (at para 145) that what he was seeking to say was that no factor should be given greater weight than the interests of a child. See the third principle above.” [Emphasis added] 60. The difficulty for us in seeking to apply the guidance in these two cases is that the Supreme Court was concerned in both cases with children who were in the UK and with issues relating to removal of their parents or the children themselves. Neither dealt with the context of entry clearance and British children living abroad. 61. That said, the unanimous decision of the Supreme Court in MM(Lebanon ) observed at [80] that the Minimum Income Requirement (MIR): “has caused, and will continue to cause significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country and to their children. Of particular concern is the impact upon the children of these couples, many or even most of whom will be British citizens themselves. These are illustrated in a Report commissioned by the Office of the Children’s Commissioner for England, Family Friendly: The Impact on Children of the Family Migration Rules: A Review of the Financial Requirements (2015, Middlesex University and the Joint Council for the Welfare of Immigrants).” 62. This report, we observe, drew on empirical survey evidence to identify that separation of families can cause significant behavioural problems for the children involved and that of the 15,000 children estimated to be affected by the MIR the vast majority were British citizens (see 3.6, 3.8). At 4.3 the report stated that among those affected were “[o]ther children [who] are prevented from returning to the UK, their country of nationality, and are effectively exiled abroad in countries with far lower health and education standards.” 63. Nevertheless, at [81] the Supreme Court said: “But the fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law.” 64. It is, in our view, pertinent that the Supreme Court, despite being aware of the fact that a significant number of the children concerned will be British citizens, did not identify that as a factor of profound or even material significance in the determination of whether Article 8 compels the United Kingdom to admit a third country national who cannot meet the requirements of the immigration rules. This is unsurprising, in the light of the Court’s analysis at [40] to [44] of the relevant Strasbourg jurisprudence, which conspicuously has not identified nationality as a necessarily weighty matter in reunification cases. We shall have more to say on this matter at paragraph 63 below. 65. It is clear that in Article 8 jurisprudence nationality is a relevant consideration both in the deportation/removal and the immigration context. Thus, in ZH (Tanzania ) Lady Hale at [17] made reference to the identification by the Strasbourg Court of relevant factors to be taken into consideration in cases concerned with the expulsion of long-settled non-nationals who had committed criminal offences. She noted that the relevant factors which had first been enunciated in Boultif v Switzerland (2001) 33 EHRR 50 (numbers inserted) were: “[i] the nature and seriousness of the offence committed by the applicant; [ii] the length of the applicant’s stay in the country from which he or she is to be expelled; [iii] the time elapsed since the offence was committed and the applicant’s conduct during that period; [iv ] the nationalities of the various persons concerned ; [v] the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; [vi] whether the spouse knew about the offence at the time when he or she entered into a family relationship; [vii] whether there are children of the marriage, and if so, their age; and [viii] the seriousness of the difficulties which the spouse is likely to encounter in the country to which the appellant is to be expelled.” [Emphasis added] 66. She further noted that this list of factors was approved and expanded upon in Uner v The Netherlands (2007) 45 EHRR 421. 67. At [180] Lady Hale noted that “[f]actors (i), (iii), and (vi) identified in Boultif and U ̋ ner are not relevant when it comes to ordinary immigration cases, although the equivalent of (vi) for a spouse is whether family life was established knowing of the precariousness of the immigration situation.” Notably she did not exclude the relevance of (iv) “the nationalities of the various persons concerned”. 68. Alongside the applicable principles set out in Boultif and Uner and other cases, the Strasbourg Court has identified a number of propositions particular to the context of entry clearance or admission. The applicable principles have been stated by the Court in its Gül judgment [ Case of Gül Switzerland , app.no. 23218] as follows (loc. cit.,§38): “(a) The extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. (b) As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. (c) Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence and to authorise family reunion in its territory.” 69. These principles have been reiterated in a number of cases, including Ahmut v Netherlands (73/1995/579/665) 26 October 1996 and Sen v Netherlands , Application no. 31465/96, 21 December 2001. In Ahmut v Netherlands , directly after restating these principles, the Court stated at paragraph 68 that: “68. Accordingly, as in the Gül case, in order to establish the scope of the State's obligations, the facts of the case must be considered [emphasis added].” 70. In Sen v Netherlands at paragraphs 31-40 the Court took into account the age of the child concerned, her situation in her country of origin and the level of dependence in relation to her parents. It further noted that the present case had certain common points with the situation of the applicants in the case Ahmut where no violation of Article 8 had been found based on the facts of the case. It took note of the fact that the third applicant in the case in hand was supported by her aunt and uncle after her mother’s departure to the Netherlands; she lived all her life in Turkey, part of her family was still living there and she had therefore strong links with the linguistic and cultural environment of her country. However, contrary to its judgement in the case of Ahmut , the Court assessed that in the present case there was a major obstacle in returning the Sen family to Turkey. The parents were beneficiaries of permits to stay in the Netherlands and had established their life as a couple in the Netherlands, where they had lived legally since many years and where two more children were born. Those two children lived their whole lives in the Netherlands, in the cultural and educational environment of this country. Therefore, they have little or no connection with their country of origin. Under these conditions, the most appropriate way to develop family life was, given the young age of the third applicant, by bringing her to the Netherlands.  71. Taking stock of the relevant Strasbourg jurisprudence on Article 8, we derive that (i) Article 8 cannot be considered to impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence and to authorise family reunion in its territory; (ii) a relevant factor that must be taken into account is the nationalities of the various persons concerned; and (iii) in order to establish the scope of the State's obligations, the facts of the case must be considered . In relation to (ii), we cannot find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes “powerful reasons” for granting admission or entry clearance or that “substantial weight” must be given to a child’s nationality. What weight is to be given appears to be left as a matter for each Contracting State’s “margin of appreciation”. As regards (iii), we would observe that in this regard the Strasbourg jurisprudence reflects our own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances.