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29 MAY 2013

Khatoon v The Entry Clearance Officer Islamabad [2013] EWHC 972 (Admin); (2013) PLLR 059

Immigration - Leave to remain - Age - Article 8

The Defendant was entitled to treat a Claimant as an adult if they reached 18 years of age by the time their application for leave to remain was considered. Where an Article 8 ECHR claim had not explicitly been made, the Claimant bore the burden of showing the facts to be so obvious that the claim would have a strong prospect of succeeding. 

26 April 2013

Administrative Court

Wyn Williams J

(1)        The Claimant, a Pakistani national born in December 1991, sought a quashing order made by Senior Immigration Judge on 2 February 2011. The Claimant's father had been granted indefinite leave to remain in August 2007 and her mother's in 5 August 2009.

(2)        The Claimant had made her application for leave to remain on 27 October 2009. In her application form, the Claimant declared that she had been living in Pakistan with her mother and siblings. The Claimant was aged 18 years and 1 month when the Defendant made his decision.

(3)        The Defendant's initial decision refusing the application was made on the basis that he was not satisfied that the Claimant was the daughter of those she claimed to be her parents.

(4)        The First-tier Tribunal judge concluded that the Claimant did not satisfy the accommodation and maintenance criteria required to grant her leave to remain. The first time the Claimant raised any human rights issues was in her appeal against the First-tier Tribunal decision. It was alleged that the failure to consider her Article 8 ECHR rights had been unlawful.

(5)        The Claimant further alleged that paragraph 27 of the Immigration Rules requires a person who was under 18 at the time of the application to be treated as if he/she remained under 18 at the time of the decision. The Claimant alleged that her application should have been determined as if she were a child under the age of 18, and the failure to treat her as a minor was a clear error of law. By failing to consider this, the First-tier and Upper Tribunals were argued to have failed to consider relevant factors such as Article 3 of the UN Convention of the Rights of the Child and policy documents such as the ‘Immigration Directorate Instructions' and ‘Every Child Matters'. It was alleged that had these factors been considered the Claimant's appeal would have succeeded.

(6)        HELD: The Court agreed with the Defendant in finding there was no reason not to give the words in paragraph 27 their natural meaning, which meant that there was no reason not to treat the Claimant as being over 18 if she had reached that age at the time the decision was made.

(7)        The Court agreed that the Defendant was entitled to make its decision as if the Claimant were 18 years of age. As such there was no requirement upon the Tribunals to consider the UN Convention or the other policy documents.

(8)        As to the second ground, the failure to consider the Claimant's rights under Article 8 EHCR, the Court clarified that the fact that Article 8 ECHR had not been relied upon did not necessarily mean that the Tribunal had no obligation to consider whether refusing the Claimant entry would breach Article 8 EHCR.

(9)        Relying upon (Robinson) v the Secretary of State for the Home Department [1998] QB 929, the Court stated that where an appellant had not raised a specific ground of appeal, it bore a heavy burden to show that the Tribunal had failed to consider a point that was so obvious that it had ‘a strong prospect of success if it [was] argued'.

(10)     In this case, there was found to be no evidence that the Claimant's living situation was precarious or that she was vulnerable. Only limited information had been available and the Tribunal had made its decision on the basis of that information.

(11)     The First-tier judge had not erred in failing to consider an Article 8 claim, as there was insufficient information evidence to indicate to the Court that there was a possible claim. The Senior Tribunal was found to have considered the Article 8 claim and had been entitled to conclude that it had no real prospect of success.

(12)     As such, the Court concluded that there had been no error in law by either of the Immigration Tribunal Judges.

Claim dismissed

Key Paragraphs

[30] - Natural meaning.

[34] - Not precluded considering Article 8.

[40] - Entitled treat Claimant as adult.

[43] - Heavy burden.

[50] - Decided on information available.

[51] - No error in law First-tier.

[53] - Senior Tribunal not erred. 

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