United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004346
	First-tier Tribunal No: HU/57667/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st of April 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'BRIEN

 

Between

 

AZBI AGALLIU

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr E Pergjegji, pro bono lay representative

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 21 February 2025

DECISION AND REASONS

1.              The appellant is a citizen of Albania born on 17 August 2006.

2.              The appellant appeals with the permission of Upper Tribunal Judge Meah against the decision of First-tier Tribunal Judge Le Grys ('the Judge') promulgated on 26 June 2024 dismissing his appeal against the respondent's refusal of his human rights claim.

The Party's Respective Cases

3.              The grounds were not drafted by a qualified lawyer; however, Judge Meah usefully summarised them thus. The Judge wrongly interpreted the law in relation to the assessment of Rule 301 of the Immigration Rules; there was a failure to properly consider the best interests of the child appellant as a primary consideration; there was a failure to properly consider Article 8 ECHR; there was a failure to consider the appellant was able to meet the maintenance and accommodation requirements through his parents; and there was unfairness in the decision.

4.              Judge Meah gave permission on all grounds, although he specifically considered the first, second, third and fifth grounds to be arguable. In particular, he considered it arguable that the Judge had erred by not considering the application under paragraph 301, had erred in failing to consider whether the term 'parent' in paragraph 301(i)(b) could be interpreted as including the term 'parents' and so whether both parents together could have sole responsibility for the appellant, and had erred in his assessment under Article 8 ECHR and the appellant's best interests given the agreed family circumstances.

5.              Mr Pergjegji also highlighted today the terms of the respondent's guidance on Appendix Children. The section entitled 'Applications for Entry Clearance and Permission to Stay' stated that 'Both parents of a dependent child applicant must be either applying at the same time as the applicant or have entry clearance or permission (other than as a visitor) or have settled, unless one of the following applies...', before listing 4 exceptions to that overarching requirement.

6.              Mr Pergjegji's submission in essence was that, because both of the appellant's parents had permission to stay in the United Kingdom, the appellant did not need to rely on any of the exceptions in the guidance. It followed that the appellant was entitled to a grant of entry clearance, even if he did not satisfy any of the requirements of subparagraphs (a) to (c) of paragraph 301(i), because both of his parents had permission to stay in the United Kingdom. No significance should be placed on the fact that paragraph 297 dealt expressly with the situation of both parents already being in the United Kingdom whereas paragraph 301 did not; it was clearly an oversight by the drafter. In the alternative, Mr Pergjegji submitted that both parents could together have sole responsibility for a child. In any event, the applicant's best interests and Article 8 rights had been overlooked or inadequately considered by the Judge. The only rational decision open to him was to allow the appeal on those grounds if not under the Immigration Rules.

7.              Ms Blackburn submitted that the decision was correct on its face. The Judge had considered paragraph 301 as well as 297, and it had been open to him to find that they were not satisfied. His interpretation of the requirement for sole parental responsibility was correct. Paragraph 301 was consistent with the respondent's guidance; paragraph 301(i)(c) dealt with the situation where both parents were present with leave in the United Kingdom. A challenge to the provisions of the Immigration Rules needed to be brought elsewhere. The Judge clearly considered the appellant's best interests and his Article 8 rights and reached permissible conclusions.

8.              Mr Pergjegji responded that the appellant had been left with an elderly lady. It was obvious that she could not care for the appellant as his parents could do and also that the situation would only get worse as she became older .

Conclusions

9.              It is not contentious that the applicant's parents are not settled in the United Kingdom and that the application could not have succeeded under paragraph 297. Neither does it appear to be contentious that the application should have been understood as having been made under paragraph 301. However, the Judge considered at [24]-[28] whether the appellant could satisfy paragraph 301 and concluded that he could not. To the extent that it is argued that the Judge failed to apply the correct Immigration Rule, there was no such error of law.

10.          The passage of the respondent's guidance on Appendix Children relied upon by the appellant states:

Applications for Entry Clearance and Permission to Stay

 

Both parents of a dependent child applicant must be either applying at the same time as the applicant or have entry clearance or permission (other than as a visitor) or have settled, unless one of the following applies:

 

• the parent applying for, or with, entry clearance or permission is the sole surviving parent (for example, the other parent has died)

• the parent applying for, or with, entry clearance or permission has sole parental responsibility for the child's upbringing (see Sole parental responsibility section

• the parent who does not have entry clearance or permission is a British citizen or a person who has a right to enter or stay in the UK without restriction, for example, as an Irish citizen or person with right of abode (and who therefore would not need permission) - this parent must, however, live, or intend to live, in the UK

• you are satisfied there are serious and compelling reasons to grant the applicant entry clearance or permission to stay with the parent with entry clearance or permission or who does not need permission. - see Serious and compelling reasons section

11.          The problem with the appellant's submission that this passage requires decision-makers in dependent child entry clearance and leave to remain applications to grant the application where (as in this case) both parents have leave to remain, notwithstanding that none of the 4 listed exceptions apply, is that it is the Immigration Rules are the published statement of public immigration policy.

12.          Paragraph 301(i) provides

301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:

(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:

(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or

(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child's upbringing; or

(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; ...

13.          In Odelola v SSHD [2009] UKHL 25, [2009] 1 WLR 1230 at para. 4, Lord Hoffman summarised the task of constructing a provision of the Immigration Rules in these terms:

"Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."

14.          In Mahad [2009] UKSC 16, Lord Brown said at para. 10:

"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."

15.          The natural and ordinary meaning of the words in paragraph 301(i) is plain and unambiguous: an applicant under that paragraph must (among other things) fall within one of the three circumstances listed in subparagraphs (a) to (c). For reasons I give below, the appellant does not.

16.          Insofar as it is submitted that paragraph 301 is so inconsistent with the above guidance that it must be interpreted as requiring a grant of leave to enter to an individual in the appellant's circumstance, I am unable to agree. The section of the guidance relied upon falls under the title ' Applications for Entry Clearance and Permission to Stay' and so applies to any such applications by children. It therefore also applies to applications under paragraph 297, which does expressly permit, amongst other things, applications for leave to enter where both parents are present and settled in the United Kingdom (subparagraph (i)(a)). Moreover, the express inclusion of such a scenario under paragraph 297 does suggest that the exclusion of the equivalent scenario under paragraph 301 is deliberate, given that the former paragraph concerns the children of settled individuals whereas the latter concerns families with less secure immigration status. In any event, the guidance merely reminds decision-makers of the need for satisfaction of one or more of the listed exceptions where one or more of the parents is not applying with the child and does not have status in the United Kingdom. It does not mandate the grant of leave where both do.

17.          The appellant argues in the alternative that paragraph 301(i)(b) must be interpreted as including the scenario where both parents have leave to remain in the United Kingdom and share parental responsibility for the applicant. I cannot accept this interpretation for the following reasons.

18.          First, the subparagraph provides that (my emphasis) ' one parent is being or has been given limited leave to enter or remain ...'. Second, that parent must have had 'sole responsibility' for the child's upbringing. The phrase cannot on any sensible interpretation include shared responsibility for the child's upbringing, even with another parent with the same immigration status. An interpretation consistent with the natural and ordinary meaning of the phrase is in any event confirmed by the respondent's guidance on Appendix Children which states, mere paragraphs below the passage relied upon above by the appellant:

Sole parental responsibility means that one parent is unknown or has abdicated or abandoned parental responsibility, and the other parent is exercising sole control in setting and providing the day-to-day direction and care for the child's welfare.

19.          In any event, as stated above, I am satisfied that the omission from paragraph 301 of circumstances in which both parents are already present in the United Kingdom but with precarious immigration status was a deliberate distinction from the circumstances covered by paragraph 297 for public policy reasons. It is easy to see why the right to respect for family and private life would require the admission of the children of couples settled in the United Kingdom whereas families with precarious immigration status might reasonably be expected to reunited with the child elsewhere. For all of the above reasons ground one fails.

20.          As for grounds two and three, these can be taken together. The Judge accepts at [29] that Article 8 is engaged. In the remaining paragraphs, the judge undertakes a balance sheet exercise, assessing the proportionality of refusal. Whilst concise, the analysis leaves out nothing which I am persuaded is material, takes into account no irrelevant factors and reaches a rational conclusion. The appellant's best interests are expressly taken into account. Whilst these are accepted as being with his parents [33], no reason is identified why this could not be in Albania, the judge noting at [33] that the family enjoying life together in the United Kingdom rather than Albania is merely their 'preference'. The circumstances in which the appellant lives in Albania are expressly taken into account, and indeed were also considered within the Immigration Rules analysis at [26]-[27]. In short, the Judge made no error of law in his approach either to the appellant's best interests or his Article 8 assessment. Consequently, grounds two and three fail.

21.          Judge Meah, whilst not limiting his grant of permission, clearly did not consider ground four to be arguable and neither do I. Put simply, having found the appellant not to meet the requirements of paragraph 301(i), it was immaterial whether he could meet the accommodation and maintenance requirements of paragraphs 301(iv) and (iva). As it is, the Judge accepted at [31] that the family would be self-sufficient, which is an unarguably sufficient finding in the circumstances. Ground four therefore fails.

22.          Ground five in reality adds nothing to the earlier grounds. There was no material unfairness in Judge's approach. As found above, notwithstanding the respondent's insistence that the Judge limit himself to consideration of the case under paragraph 297, he considered whether the appellant could satisfy paragraph 301 and, applying the correct interpretation of that rule, reached a legally correct conclusion that he did not. The Judge's Article 8 assessment included consideration of the appellant's best interests and led to a conclusion clearly open to the Judge. For these reasons, the appeal fails.

Notice of Decision

1.              The appeal is dismissed.

2.              The Judge's decision stands.

3.              The appeal is remitted to the First-tier Tribunal to be heard by another judge with no findings of fact preserved.

 

Sean O'Brien

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

26 March 2025