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Sole responsibility and exclusion undesirable

The ‘sole responsibility’ and ‘serious and compelling family or other considerations which make exclusion of the child undesirable’ tests for the admission of children to join parents in the UK have featured in the Immigration Rules for time immemorial. Both legal context and best practice have changed considerably in recent years, though. With the lifting of the UK’s immigration reservation to the UN Convention on the Rights of the Child, the passage of section 55 of the Borders, Citizenship and Immigration Act 2009 and cases like EM (Lebanon) and ZH (Tanzania) we should all now be following a much more child-centred approach in immigration law. That means putting the best interests of the child front and centre but also ensuring that the voice of the child is heard.

Like the rules themselves, the truth is that not a lot has changed in the way some of us argue and evidence these child entry clearance cases where one parent is resident in the UK but the other is not. Too often, immigration cases for or about children are still devoid of real evidence from or concerning the child. What does the child think of moving country, leaving everything he or she knows behind him or her and joining a hitherto absent parent? Is it exciting and will it fill an emotional hole in their life to be with the parent, or are they scared at the prospect of the unknown? Or both? Quite often, we simply don’t know. Or should we simply accept that parents know what is best for the children and should be permitted to make decisions about their country of residence?

The ‘sole responsibility’ test in particular is a distraction from the real relevant considerations and the right approach. It diverts Entry Clearance Officers, immigration lawyers and judges from looking at the situation of the child and causes focus on the situation of the parent. It is almost as if being reunited with one’s child is a reward for taking a long distance interest in their upbringing. The right approach is surely to examine the case from the child’s perspective — it is the child’s appeal after all — and consider what is best for that child.

In Mundeba (s.55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC) the Upper Tribunal deconstructs the language of para 297(i)(f) and adopts a more inclusive approach to the ‘exclusion undesirable’ test than has traditionally been the case, reading into it at least some of the more child-centred modern considerations one would expect in this day and age. Still, though, the test seems to be left requiring something more than best interests:

In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind.  Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be.

The tribunal goes on to hold:

The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require…

As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC); [2012] Imm AR 939.

Sole responsibility as interpreted as a test of a parent’s level of engagement with the major decisions in a child’s life is a hangover from a bygone age. The astute lawyer can draw on other arguments to advance the case in an appropriate, modem and child-centred way. We should all take careful note of Mundebe, which at least provides more of a base for arguing the best interests of children in entry clearance cases.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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