The case of SF and Others (Guidance, Post 2014 Act) Albania  UKUT 120 (‘SF and Others’) was heard before the Upper Tribunal of the Immigration and Asylum Chamber in January 2017. An Albanian mother, who had entered the United Kingdom illegally, argued that she should be granted leave to remain as the primary carer of her British national child. The case is seen as a possible benchmark case for future British nationality applications involving British citizen children.
British Nationality: The Facts of SF and Others
The appellants were three Albanian nationals, a mother and her two children, all whom had entered the United Kingdom illegally during 2012. The appellant’s husband was also an Albanian national, who had obtained indefinite leave to remain and later obtained British nationality by false representations. The mother gave birth to a third child whilst her husband had indefinite leave to remain, and that child resultantly was of British nationality. The appellants were refused asylum claims and were subsequently served with notices that they were to be removed from the United Kingdom as illegal entrants.
This decision was appealed to the First-tier Tribunal, on the basis that the first appellant was the primary carer of an EU citizen child. This appeal was rejected as a matter of jurisdiction, and was not pursued in the Upper Tribunal. What was pursued in the Upper Tribunal, however, was an argument that because of the British nationality of the youngest child, it would be unreasonable to expect that child to leave the United Kingdom – and that this unreasonable expectation has an impact on any decision that the appellants themselves should be removed.
The Upper Tribunal considered 11.2.3 of the Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner of Parent and Private Life, 10 year Routes”. The Directorate states the following:
“Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano. Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
1) criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
2) a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules…[and] in considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation.
It was through reference to the above guidance that the judgement was made, and the appellants’ appeal was successful.
British Nationality: The Judgment of SF and Others
The case ultimately turned not on the representations made for the appellant, but on the representations made for the Respondent. The Presenting Officer for the Secretary of State for the Home Department (SSHD) accepted that the case did not involve criminality, at least from the point of view of the relationship between the mother and her child of British nationality. It was also accepted that the conduct of the mother and her other children did not give rise to grounds serious enough to justify their separation. Furthermore, no consideration was given to there being another parent or alternative primary carer in the EU. The result of any decision to remove the appellants would be the separation of the child of British nationality from his mother and siblings, and it was held that, based on the guidance stated above, to do so would be unreasonable.
Had the guidance the Presenting Officer brought to the court’s attention been properly applied to the appellants in the first instance, it was held that it would have resulted in them being granted leave in order to enable the child of British nationality to remain in the United Kingdom with them. Importantly, the judge also reinforced the importance of the immigration guidance in making decisions. Clear understanding of the guidance is a necessity for potential applicants and their legal representatives alike.
The Upper Tribunal judgement can be found at: SF and Others v SSHD LEXVISA Immigration Solicitors London.
Using Legal Representation to Apply for British Nationality
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to apply for British Nationality.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully Apply for British Nationality
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Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
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