“Exceptional circumstances
GEN.3.1.(1) Where: (a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. applies, and is not met from the specified sources referred to in the relevant paragraph; and (b) it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph). (2) Where the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. is met following consideration under sub-paragraph (1) (and provided that the other relevant requirements of the Immigration Rules are also met), the applicant will be granted entry clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1. or D-LTRC.1.1. or paragraph 315 or 316B of the Immigration Rules. GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply. (2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application. (3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D- ECPT.1.2., D-LTRPT.1.2., D-ECDR.1.1. or D-ECDR.1.2. (4) This paragraph does not apply in the context of applications made under section BPILR or DVILR. GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child. (2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who: (a) is under the age of 18 years at the date of the application; and (b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.”
- DECISION AND REASONS
- Submissions at the hearing
- General
- Nationality
- 28. At the same time it is also clear that, by virtue of their minority, children are not in a position to exercise some of the rights and benefits ordinarily associated with nationality for so long as they are children. This is a feature highlighted by a leading expert on children and nationality, Jacqueline Bhaba 2 , in her article on “The importance of nationality for children”, Institute on Statelessness and Exclusion, 2017:
- British citizenship and British citizen children
- British citizenship and Union citizenship
- Dual or multiple nationality
- 39. But there can also be disadvantages of having more than one nationality. As a dual citizen, a person is bound by the laws of both countries. Dual citizens may be legally obligated to fulfil military obligations in one or both of the countries of nationality. In some countries there are employment security clearance hurdles for persons who have another nationality. There is also the potential for double taxation. Further, there is the potential difficulty for persons seeking to rely on the opportunity to exercise their rights and benefits as a national of one country, that they have available a separate set of rights and benefits flowing from their other nationality. This last feature is one we will have to consider further in the context of this appeal.
- Specific legal framework
- “Exceptional circumstances
- Section 55
- Statutory provisions and Section 117B(6)
- The Immigration Rules
- Policy
- Case law
- disruption
- Private life
- The appellant’s case
- The Immigration Rules: Appendices FM and FM-SE
- Article 8
- Public interest considerations
- The position of the sponsor
- The option of the children joining the sponsor in the UK on their own
- The option of the sponsor returning to Sri Lanka
- status quo ante
- or the appellant and children being able to live in the UK
- The best interests of the children
- The appellant’s position under the Rules
- Zambrano
- [2012] 1 CMLR 45