Mundeba and section 55 and paragraph 297

This case holds that the exercise of the duty by the Entry Clearance Officer to assess an 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.

Where an immigration decision engages Article 8 rights, due regard must be had to the UK Convention on The Rights of The Child. An entry clearance decision for the admission of a child under 18 must engage the best interests of the child considerations. Although the statutory duty under section 55 UK Border Act 2009 only applies to children within the UK, the Secretary of State’s IDI invites entry clearance officers to consider the statutory guidance issued under section 55.

The focus needs to be on the circumstances of the child in light of his or her age, social background and developmental history and will involve inquiry as to whether

(a) there is evidence of neglect or abuse
(b) there are unmet needs that should be catered for
(c) there are stable arrangements for the child’s physical care

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

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, changing the place of residence where a child has grown up for a number of years and is socially aware is important.