Home Office fails in its duties to teenage girls but it’s a happy end
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We acted for two children, nationals of Nigeria, who made an application to join their British citizen aunt in the UK under paragraph 297 of the Immigration Rules. The applicants and later on the appellants are sisters in their teens. The sponsor, their aunt, is a British citizen that was born in Nigeria but resides in the UK with her husband and her child. The parents of the girls both died and although in Nigerian culture the children belong to the father’s family, the children stayed with their maternal grandmother after their father’s death. It became clear that living with the grandmother was no longer safe as she was herself suffering from ill-health and was unable to look after them. The care of the children deteriorated and as a result of serious concerns for their well-being the girls were removed from the care of the maternal grandmother to live with another aunt. However, this aunt was unable to care for the girls permanently and to provide them with support, partly because of the socio-economic circumstances and partly because they needed to relocate and move across the country, as the aunt’s husband was a pastor. One of the girls had special needs and severe learning difficulties. On 26th May 2022 we made an application for leave to enter to join their aunt in the UK and the applications were refused on the basis that they did not meet the requirements of paragraph 297 of the Rules and there were no compelling circumstances outside the Rules requiring entry clearance to be granted under Article 8 of the ECHR. The Respondent was not satisfied firstly that the appellants were related to the aunt, the sponsor, as claimed and relied on the fact that the birth certificates submitted in support of the application were not issued at the time of the children’s birth. They also concluded that there were no serious or compelling family or other considerations making their exclusion undesirable, arguing that the current arrangement living with the other aunt could continue. It was also argued that there is no family life with the sponsor.
The Respondent failed in its duties to consider whether it would be in the best interests of the girls to join their aunt in the UK. The Respondent reviewed the decision on 8th March in which they decided to maintain their decision under the Rules. Therefore, the appeal had to continue.
We argued all along that the decision was contrary to the facts that we provided; That indeed there were compelling family considerations which made the exclusion of the girls undesirable and we had no choice but to fight for the girls to be granted indefinite leave to enter the UK because the case law was behind us. The exercise of the duty by the entry clearance officer is to assess the application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable and to reach this conclusion the entry clearance officer must assess what is in the child’s best interests. Family considerations require the evaluation of the child’s welfare, including emotional needs and we have demonstrated that the sponsor is related to the applicants as their aunt. The evidence of the relationship was submitted with the original application including their father’s birth certificate and the aunt’s birth certificate. We demonstrated that the late father and the aunt were related as they had the same father and the same mother. We provided witness statements providing the family background and we provided DNA test results confirming their relationship. We provided background to the tragic loss of both parents and demonstrated with psychiatric reports that they are vulnerable and traumatised teenaged girls who find themselves in an extremely difficult situation in Nigeria. We provided evidence that previously they were neglected by the grandmother, they had to move homes and schools and lived in unsuitable arrangements. We provided evidence that one child has significant learning difficulties and that the letter from the child’s current school confirmed that the school did not have capacity to provide the child with the extra support she needed and the psychological support that she deserves.
We provided a report from a consultant psychiatrist explaining the circumstances in which this child found herself, being a vulnerable young person with a high risk of exposure to further bullying and exploitation. Nevertheless, the Respondent’s review contended that there was no evidence that the support could not be provided from their aunt in Nigeria. The witness statements, the evidence from the school, the medical evidence about the aunt’s fragile mental health was not taken into account. The fact that these young girls needed a permanent solution for their living arrangements was not given any weight, the fact they cannot get specialist support and cannot come to heal the loss of both their parents at a young age was not addressed. The fact that the current arrangements are temporary was not given any weight. Furthermore, the Respondent failed to consider the children’s best interests either in the original decision or in the review and failed to take the case law into account.
We had to attend Court. On the day, the Home Office representative referred to the evidence we provided as part of the reason to decide to withdraw their decision and after speaking to the sponsor for a few minutes, answering very few questions, they decided to grant the children indefinite leave to enter. Sadly we cannot ask for a wasted costs order because it was within the Respondent’s remit not to conduct a further review after the initial review of the Appellants bundle, even when further evidence was submitted. Our tearful and happy sponsor was delighted to learn that following the hearing and the relevant evidence that we submitted, the Home Office have concluded that the decision to refuse is no longer appropriate and the immigration decision was therefore withdrawn with a view to granting entry clearance to both children.
We are looking forward to meeting the girls in our office with their aunt.