T(Jamaica) - best interests of a child considered
In a newly reported case - T (s.55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 00483(IAC) - a panel of the Upper Tribunal chaired by President Blake has provided guidance on the substantive issue of dealing with the best interests of children in entry clearance (visa) applications and on the procedure which should be followed by the First tier and Upper Tribunals when refusals are appealed. The guidance on procedure may have wide ranging consequences for Upper Tribunal cases not restricted to those concerning children.
The substantive issue
T was 14 years old when her application to settle in the UK with her mother under Immigration Rule 297 was refused by the Entry Clearance Officer in Jamaica. Had she already been in the UK making an application for Leave to Remain or affected by a negative decision against a family member, section 55 of the Borders, Citizenship and Immigration Act 2009 would have applied. Section 55 requires the UK Border Agency to 'safeguard and promote the welfare of children in the UK.' T was not in the UK and so Section 55 does not apply. But that is not the end of the story. The statutory guidance "Every Child Matters, Change for Children" issued by UKBA in November 2009 stated that:
"UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding or present welfare needs that require attention" (2.34)
The Tribunal found that "extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances" (Headnote [ii]) was one of the factors which an entry clearance officer must take into account. It also noted that in applications considered under Immigration Rule 297, there was a duty to assess whether exclusion was undesirable and to consider Article 8 of the European Convention on Human Rights. Where Article 8 is engaged and interference with family life must be assessed, the best interests of the child are a primary consideration. The Tribunal cited a sequence of cases culminating in the landmark case of ZH (Tanzania) decided by the UK Supreme Court in January 2011. Its headnote summarises the position:
(v) It is difficult to contemplate a scenario where a s. 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.
This seems to envisage that if consideration of the best interests of the child suggests that their application should succeed, the child will almost always be granted Discretionary Leave outside the Immigration Rules of a duration provided for in UKBA policy relating to avoidance of Article 8 breaches.
The procedural issue
In T's case the Tribunal found that it had been wrong for the Immigration Judge to 'remit' the case (ie send it back) to the Entry Clearance Officer on the ground that it was not in accordance with the law for lack of any consideration of the best interests of the child. Instead, the appeal having reached the Upper Tribunal, the President remitted it back to be considered by an Immigration Judge in the First tier Tribunal. His comment that 'all delay in cases affecting children is highly undesirable' [38] is accompanied by direction that the child herself is given the opportunity to express her views, building on the guidance given by the Supreme Court in ZH (Tanzania). Both statements will have wide application in other cases involving children.
Most interesting, however, is the reasoning which underlies the Tribunal's emphasis that an Immigration Judge has the responsibility to make factual findings on matters in dispute. Remittal to the ECO as the primary decision-maker is not necessary or appropriate.
That an Immigration Judge should make factual findings on the evidence is hardly controversial. What does appear to be new and to have a potential impact beyond cases involving children, is that the Tribunal seems to envisage that fact finding where there is a conflict of evidence is a task restricted to the First tier Tribunal rather than the Upper Tribunal:
There has been no hearing of the substance of the appeal at all and no findings of any kind. The scheme of the Tribunals, Court and Enforcement Act 2007 does not assign the function of primary fact-finding to the Upper Tribunal.
33. When we have set aside a decision of the First-tier Tribunal, s.12(2) of the Tribunals, Courts and Enforcement Act 2007 requires us to remit the case to the First-tier with directions or re-make it for ourselves. Where there has been no hearing at all before the First-tier and the facts are disputed or unclear, we conclude that the decision should be remitted to the First-tier judge to determine the appeal.
Certainly, this passage is prefaced by and includes reference to a lack of any hearing in the First tier Tribunal. Nonetheless the reference to section 12(2) seems to anticipate that where the Upper Tribunal finds error of law in a decision appealed from the First tier, such that it should be set aside, and where factual matters remain in dispute, it should be mandatory for the appeal to be remitted back to the First tier Tribunal. This contrasts with the approach commonly followed since the Upper Tribunal came into being in 2010 where an initial hearing concerned with error of law was followed later by a resumed hearing, still in the Upper Tribunal, where the Upper Tribunal Judge considered all the evidence and made any necessary factual findings before applying the law. If the approach in T is followed, the case would only remain in the Upper Tribunal if the matters to be determined were purely legal rather than factual.
Legal representatives will need to consider whether the President's decision in T heralds a significant procedural change in how the Upper Tribunal disposes of appeals and prepare accordingly.