Section 55
44. Mr Lindsay accepts that s.55 considerations are “capable in principle of forming a factor relevant to proportionality.” In point of fact, it can be seen from GEN.3.1-GEN. 3.3 (cited above), that it is now 3
part of the Immigration Rules that “[i]n considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.3.1 or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.” (emphasis added). GEN.3.3.2 defines ‘relevant child’ to mean a person who is under 18 at the date of application and “(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.” Reflecting that these mandatory provisions have been put into practice, we note that the ECO refusal decision in this case states in its third paragraph that “[t]his decision takes into account as a primary consideration the best interests of any relevant child in line with section 55 of the Borders, Citizenship and Immigration Act 2009.” 45. GEN. 3.3 (1)(b) and GEN. 3.2(2) clarify that the exceptional circumstances at issue relate to those 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. 46. Moreover, even before the change to the Rules made in August 2017, it was well-settled that for the purposes of entry clearance decision-making, the best interests of the children were still be taken into account: see, e.g. SM(Algeria)(Appellant) v Entry Clearance Officer, UK Visa Section (Respondent) [2018] UKSC 9 at [19]; MM(Lebanon ) at [109]; Mundeba [2013] UKUT 00088 (IAC); T (s.55 BCIA 2009 – entry clearance
) Jamaica [2011] UKUT 00483(IAC).
- 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