Case No. UKUT-00043(IAC)

96. It is well-established that the best interests of the child assessment requires a balanced approach: see e.g. Zoumbas at [13]. 97. We shall first identify factors in favour of the children’s best interests being considered to repose in living in the UK with their parents. As already indicated, we are prepared to accept for the purposes of this appeal that it is now the parents’ strong intent that the children should resettle in the UK so they can enjoy the rights and benefits of British citizenship, in particular the access to schooling here, which they consider superior to that the children currently enjoy in Sri Lanka. So far as we know of the children’s own wishes, they are of the same mind as their parents, which means that they are likely to view the resettlement as an opportunity rather than as a mere disruption. They want to settle in the UK, which, as children possessing British citizenship, they are entitled to do as a matter of right. 98. As children with British citizenship, it is relevant to assessment of their best interests to take into account that moving to the UK would also enable them to enjoy access to the UK the educational system and if need be to have free access to other services such as the NHS. Although we have not had country of origin evidence that might enable a full assessment of the comparative advantages and disadvantages of the rights and benefits enjoyed by children with Sri Lankan nationality in Sri Lanka as compared with those enjoyed by children with British citizenship in the UK, we note that Mr Lindsay did not dispute that those enjoyed in the UK would potentially be at a superior level. Being able to live in the UK from a young age will be also likely to enhance their integration into UK society. 99. Leaving to one side here the option of their father moving to Sri Lanka to live with them there, the most obvious impact on the children’s best interests currently is that they do not have a father in their life. That is not in their best interests. We noted earlier the report to which the Supreme Court made reference in MM (Lebanon ) identifying the problems that can be attendant on separated family including adverse behavioural effects on children: see above paragraph 61. Whilst we lack full evidence, we think it highly likely that the children’s welfare is diminished by not having their father living with them and that prolonged separation of the family will have negative effects on them. Their best interests are to live with both their parents. We come back to the issue of country of location and likely duration of their separation below. 100. We next consider factors weighing against the children’s best interests being assessed as requiring them to live in the UK with their parents. We note first of all that because of their young age, it is reasonable to infer (in the absence of specific evidence as to their own familial and social involvements) that their level of integration into Sri Lankan society is very much a function of their mother’s degree of integration in her social and family environment, since a very young child necessarily shares the social and family environment of the circle of people on whom he or she is dependent (as was noted by the Supreme Court in In the Matter of A (Children) (AP ) [2013] UKSC 60, by reference to Mercredi v Chaffe  (Case C-497/10 PPU)  [2012] Fam 22 at [55] in the context of the Hague Child Abduction Convention ). On the available evidence, although the appellant speaks good English, she is fully integrated into Sri Lankan society; she has been educated there and studied there and worked there, she has never lived outside it and all her family (bar her husband) are there. The only notable difference in this respect between the children’s situation and that of their mother is that they are attending an English-speaking school which means they are receiving an English education, whereas hers was a Sri Lankan education. 101. Obviously the children are receiving primary care from their mother; that distinguishes them from children who, for example, might be orphans or in institutional care. 102. It is not submitted on behalf of the appellant that her children are currently in poor or compelling circumstances. With the help of money sent by the sponsor, they are able to live in Sri Lanka and attend an English-speaking school to advance their education. Separately from the appellant, they have grandparents in Sri Lanka and it was indeed they with whom the appellant previously intended to leave the children so she could come to the UK and work (it is said, however, that they are now old and fragile). Remaining in contact with their extended family in Sri Lanka, such as their grandparents would be in the best interests of the children. Clearly the children have links of language, culture and residence with Sri Lanka. The sponsor described them as bilingual. At most their linguistic links with Sri Lanka might be somewhat diminished (because they are being schooled in English). Given their young age, we doubt that they have any close ties with friends of unusual significance; certainly none of this type have been put forward as part of the evidence. They have no known health issues. 103. Reverting to the issue of the relevance of the children’s nationality, whilst they are British citizens, they are also nationals of Sri Lanka. As noted earlier, dual nationals ordinarily stand to enjoy the rights and benefits of both countries of nationality, even though for children not all such rights and benefits have application. Here (again) we have incomplete evidence, but it has not been submitted that the children do not enjoy the rights and benefits that go with Sri Lankan nationality; the appellant’s submissions have only argued that such rights and benefits are inferior. Given however, that it has not been submitted that the children are in poor or compelling circumstances, we consider the evidence to show that whilst refusal to their mother of entry clearance does deny them the opportunity to exercise almost all the rights and benefits of their British citizenship, it does not mean that they lack the ability to enjoy the rights and benefits of Sri Lankan nationality. They are thus in a different position (at least at the abstract level) from a child living in an overseas country who has no nationality other than British. 104. Whilst the effect of the refusal decision on the appellant’s children is to deprive them of the opportunity to enjoy the rights and benefits of British citizenship that flow from residence in the UK, we take into account that such deprivation is time-bound, since once they turn 18 they will be entitled to move to and reside in the UK as they choose. 105. Weighing up all relevant considerations, we consider that the children’s best interests are for them to live with both their parents and it has not been shown that it would significantly impair their welfare/best interests if their father went to live with them in Sri Lanka