Case No. UKUT-00043(IAC)

12. Mr Lewis asked us to find that the decision under challenge was both an interference with family and private life and a disproportionate interference. Central to the appellant’s case was the fact that British citizenship was not simply an economic right; its right of abode component amounted to, in the words of Lord Mance in R (Bancoult) v Foreign Secretary (No 2) [2009] 1 AC 453 at [151], a constitutional or foundational right. Nationality, Mr Lewis said, gives choice and the ability to exercise choice. Its core was the right of abode and the longer the children were away from the UK the harder it would be for them to integrate and to contribute and add to the social fabric. 13. As regards the private life component to the appellant’s claim, her case was to be distinguished from that considered by the Court of Appeal in Abbas , since in Abbas there was no British national children and the application was for a visit visa whereas here the appellant sought entry with a view to settlement. The respondent was required to undertake a best interests of the child assessment and, in the appellant’s case, refusal of entry clearance to her entailed denial to her British citizen children of the opportunity to exercise the rights and benefits of that nationality. The children had made known their wish to come to the UK. They were entitled as British citizen children to the higher standards of education and social welfare available in the UK. He reiterated the appellant’s submission that the British citizenship of the children did not create an absolute entitlement for the appellant to be granted entry clearance but it provided powerful reasons which could only be outweighed by criminality or a poor immigration history, neither of which pertained here. Ironically, if the appellant had entered illegally she may have stood to benefit from 117B(6). Both parents were of good character. 14. Mr Lewis pointed out that, as regards the appellant’s situation under the Immigration Rules, the sponsor was no longer in work due to health problems, including anxiety and depression, but the appellant, although not working in Sri Lanka presently, had an offer of employment as a nurse carer which meant the couple could now meet the financial requirements. The Upper Tribunal was in as good a position as the ECO to reach a view on the current financial circumstances. They had already paid the fee for their application. The sponsor had lived for periods in Sri Lanka and had attempted to find work, the longest being for 2 months on a salary of £450-500 per month. The costs of the children attending an English school was £200 a month. On that salary he would not be able to pay to continue that schooling. The state school was Tamil-speaking. The children had been put into an English school to prepare them for life in the UK. Their parents identified education in the UK as being of primary importance for their children. 15. Mr Lewis reiterated the point that even though s117B(6) of the 2002 Act was not applicable to the appellant, it clearly reflected a public policy to accord particular weight to the nationality of children who were British citizens. 16. Mr Lewis submitted that there were exceptional circumstances in this case: the father and the two children were British citizens; the father was suffering from mental health issues; one of the children had gone to the UK to visit the father but he could not cope on his own. This underlined the importance of the best interests of the children lying in being with both their parents. It was unrealistic due to economic circumstances to suggest the children could move between the UK and Sri Lanka. 17. Mr Lindsay submitted that it was incorrect to portray the refusal of entry clearance to the appellant as denying the children their right of abode or opportunity to live with their mother and family as a family unit. As regards the financial circumstances of the appellant and sponsor, they had clearly failed to meet the financial requirements. Even accepting that for the purposes of assessing the appellant’s Article 8 circumstances outside the Rules it was proper to consider the appellant’s potential earnings from a job as a nurse in the UK, there were evidential gaps – for example the job offer to the appellant had not been verified, there was no medical evidence that the sponsor could not work and there were childcare issues if she worked. The Home Office guidance on exceptional circumstances made clear that it was only if there were exceptional circumstances that consideration might be given to disregarding the financial requirements. 18. In relation to the children’s best interests, Mr Lindsay accepted that s.55 considerations were capable of being applied, but submitted that it was not uncommon for children to come to the UK when they were older and there was no reason why they could not make visits or indeed attend school in the UK, whilst remaining based in Sri Lanka. In the appellant’s case, the best interests of the child assessment cut both ways and it could not simply be assumed that their integration into Sri Lankan society was less important than their potential integration into UK society. It was easy to imagine a situation of a British citizen child in which there might be very exceptional circumstances justifying entry clearance being granted to a parent of a British citizen child, if for example a child needed an organ transplant in the UK and the parent was needed to be with the child throughout that process, but that was not this case. 19. Mr Lindsay asked us to reject the appellant’s contention that the appellant’s right to respect for private life was engaged. The decision of Abbas was clear that in entry clearance cases there was no obligation on a contracting state to protect private life. There was no Strasbourg Court authority to support the view that there was. 20. So far as concerned the appellant’s family life claim, it had not been shown that the sponsor could not go and live in Sri Lanka or that the children could not exercise their rights as British citizens by attending school in the UK and returning to Sri Lanka on holidays. The appellant said in her application that it was planned to leave the children in Sri Lanka whilst she came to the UK to find work; it had not been shown there was any material change since then. Further, there was a proportionate option available to the family, namely, to resubmit a fresh application when they could meet the requirements of the Rules.