Case No. UKUT-00043(IAC)

52. We asked Mr Lindsay to clarify whether or not the respondent had any existing policy instructions or other guidance specifically for Entry Clearance Officers. He stated that the existing guidance was contained in the Home Office Family Policy: Family life (as a partner or parent), private life and exceptional circumstances. He produced Version 3.0, dated 23 September 2019 (we note in passing that since the hearing there is now a Version 4, with the same title, dated 1 November 2019, but in respect of the parts relevant to this case, it is in identical terms). Although stated as being “published for Home Office staff”, it expressly states in a subsection headed “Purpose” that: “[t]his guidance must be used for all decisions (emphasis added): under paragraph 276ADE(1) of Part 7 (private life) under paragraphs 277-280, 289AA and 295AA of Part 8 (family circumstances (family life cases under Appendix FM including on the basis of exceptional circumstances (family life) in accordance with GEN.3.1 to GEN.33 [which as we have seen encompasses entry clearance applications] outside of the Immigration Rules on the basis of exceptional circumstances (private life)”. 53. Correspondingly, this document includes sections specifically relating to entry clearance applications: see e.g. page 31 dealing with “Decision to refuse entry clearance or leave to remain”. 54. Mr Lindsay also produced the Immigration Directorate Instruction Family Migration: Appendix FM Section 1.7 Appendix Armed Forces, August 2017. This expressly states in the Introduction that “[f]or the purposes of this guidance “decision-makers” means Entry Clearance Officers and caseworkers.” 55. The Family Policy guidance deals, inter alia, with the in-country immigration rules relating to British citizen children and includes at page 50, under the heading “Is it reasonable for the child to leave the UK?”, the statement that: “[t]he starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interests for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.” But it contains no similar provisions relating to British citizen children who are abroad. It does repeat the wording of GEN.3.3. (page 46) and in the section on Exceptional Circumstances (which is expressly stated to apply to entry clearance and leave to remain applications (page 66)), it is noted that its provisions “enable Entry Clearance Officers to conduct full Article 8 considerations under Appendix FM, removing the need to refer those entry clearance cases that potentially raise exceptional circumstances (requiring leave to be granted on Article 8 grounds) to the Referred Casework Unit’” (page 67). In a subsection headed Overview it is stated that: “These changes in the Immigration Rules have 2 key implications for Entry Clearance Officers and caseworkers deciding applications under Appendix FM. First, where an application for entry clearance or limited leave to remain as a partner or child under Appendix FM does not otherwise meet the minimum income requirement applicable under paragraph E-ECP.3.1., E-ECC.2.1., E- LTRP.3.1. or E-LTRC.2.1.: Then, under paragraphs GEN.3.1. and GEN.3.3. of Appendix FM, you must consider whether refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child. In conducting this assessment, you must have regard to all of the information and evidence provided by the applicant. You must take into account, as a primary consideration, the best interests of any relevant child. Where, under paragraph GEN.3.1. of Appendix FM, you consider that refusal could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, you must give the applicant an opportunity to show whether the minimum income requirement can be met through any other credible and reliable source(s) of income, financial support or funds available to the couple. If the applicant has not already done so, you must contact the applicant (or their legal representative) in writing giving them 21 days in which to provide information and evidence in writing of any other credible and reliable source(s) of income, financial support or funds available to the couple which enables the minimum income requirement to be met. This can be in addition to, or in place of, the income or funds on which the application relied. Appendix FM 1.7: financial requirement provides guidance on the application of paragraph 21A of Appendix FM-SE, which sets out objective criteria by which you will assess the genuineness, credibility and reliability of other sources of income, financial support or funds. Second, where an application for entry clearance or limited leave to remain under Appendix FM does not otherwise meet the requirements of that Appendix or Part 9 of the rules: Then, under paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, you must consider whether there are exceptional circumstances which would render refusal of the application a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. In conducting this assessment, you must have regard to all of the information and evidence provided by the applicant. You must take into account, as a primary consideration, the best interests of any relevant child.” 56. At page 69 a ‘relevant child’ is stated to mean the same as it does in GEN.3.3.(2), namely, a person who: “is under the age of 18 years at the date of application it is evident from the information provided by the applicant would be affected by a decision to refuse the application.”