“While I accept that you may now wish to settle as a family together in one place, you have failed to provide a satisfactory explanation as to why your sponsor cannot reside with you and your children in Thailand. I am satisfied that there has been no breach of those Articles given the reasons already stated above. I consider that refusing this application is justified and proportionate in the exercise of immigration control. I note that refusing this application will not interfere with family life for the purpose of Article 8(1) which you enjoy in Thailand.”
“J visited his mother and sibling in Thailand in April this year, since returning J has become very confused about his family situation and will often cry for ‘mummy’. The school has concerns around J meeting his behavioural and emotional milestones as well as his basic needs being met in the current situation, therefore we have made a referral to Children’s Services under the Child Protection framework.”
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) … (c) … (d) … These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
“41. As the Court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of member states… 42. In those circumstances, article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the Union… 43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. 44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. 45. Accordingly, the answer to the question referred is that art 20 TREU is to be interpreted as meaning that it precludes a member state from refusing a third country national upon which is minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
“30. We see no reason why Zambrano principles cannot have application in entry clearance cases: in both in country and out of country cases the Member State must ensure that any ‘refusal does not lead, for the Union citizens concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union”: Dereci & Others [European Citizenship) [2011] EUECJ C-256-11, 15 November 2-11, para 74. Indeed the ruling of the Grand Chamber of the Court of Justice in this case encompassed not just the cases of those applicants who were already living in the host Member State (Austria) but Mrs Stevic who resided in Serbia: see paras 26, 35, 74.”
“i) 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. ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children...undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”. iii) Although the statutory duty unders.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55. iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds 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 is sufficiently serious and compelling to require admission.” 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 is sufficiently serious and compelling to require admission.” 59. We are satisfied that the Entry Clearance Officer’s decision was an action concerning children undertaken by an administrative authority, and accordingly Article 3 of the UN Convention on the Rights of the Child comes into play. 60. As a starting point, the best interests of a child are usually best served by being with both parents. Continuity of residence is another; change in place of residence where a child has grown after a number of years when socially aware is important, [see also SG (child of polygamous marriage) Nepal[2012] UKUT 265 (IAC) [2012] Imm AR 939]. 61. Mr Deller refers in his skeleton argument to the recent decision of the Court of Appeal in SS (Nigeria) v SSHD[2013] EWCA Civ 550 , in particular the comments by Mann J at [62] that any “best interests” consideration should be identified by the appellants. 62. Laws LJ gave the lead judgment in SS (Nigeria). At [44] he provides analysis of what is understood by the interests of a child or children being a primary consideration, and at [44]: “… with great respect they are capable if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course ‘a primary consideration’. It appears from ZH and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective ‘primary’? We know it does not mean ‘paramount’ – other considerations may ultimately prevail. And the child’s interests are not ‘the’ but only ‘a’ primary consideration – indicating that there may be other considerations which, presumably, may count for as much. Thus the term ‘primary’ seems problematic. In the course of argument Mr Auburn accepted that ‘a primary consideration’ should be taken to mean a consideration of substantial importance. I think that is right.” 63. Mr Deller did not seek to persuade us otherwise that the best interests of the two children affected by the Entry Clearance Officer’s decision were to be together with both parents in a united family. 64. He accepted that family life existed in this case and that the decision entailed consequences of such gravity so as to engage Article 8. We consider that he was correct to state that the decisions were lawful, but only insofar as they do not affect any derived residence rights of carers of British citizen children. We have already found that the EU citizen rights of FM and of JM are not undermined to the extent that either child (or the children together) is (or are) unable to exercise those citizenship rights in the light of the ability of the sponsor to care for both of them in the United Kingdom. 65. Continuing the familiar journey through the Razgar principles, Mr Deller argued that the decisions are pursuant to the legitimate aim of consistent immigration control in the economic interests of the UK and that they were proportionate. 66. Our focus therefore is on the issue of proportionality. 67. In his oral submissions Mr Deller emphasised that the legitimate aim relied upon by the ECO was purely an economic one. He was alive to the difference of approach that may be taken where the best interests of young children are concerned in contrast with those of later teenage years, and with characteristic candour he accepted that he had not come across such a case as this before where there were British citizen children living apart in the circumstances in the case before us. 68. In Izuazu the Secretary of State made the following concession (recorded in Appendix A to the determination) “The Secretary of State continues to accept that where the primary carer of a British citizen is denied a Zambrano right of residence on the basis that his or her removal or deportation would not force the British citizen to leave the EU, it will not logically be possible when considering any Article 8 claim made by such a person to determine their claim on the basis that the family (including the British citizen) can relocate together to a place outside the EU. However, the Secretary of State does not accept that it follows that there will be no circumstances in which a decision taken in respect of the primary carer of a British citizen can require that British citizen to leave the UK. The Secretary of State does not consider that the UK Border Agency letter sent to the Tribunal in Sanade suggested that she did accept that it is never reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad but apologises for any lack of clarity in the correspondence which may have caused the Tribunal to reach this conclusion” 69. Mr Deller accepted that this concession can be extrapolated so as to be of application to entry clearance applications and that consequently it would not logically be possible when considering an Article 8 claim in such a context to determine the claim on the basis that the British citizen child would relocate, or remain living, outside the EU. The consequent effect of such extrapolation in the instant case is that, (i) although FM is currently residing outside the EU, the appellants Article 8 claim must be determined on the basis that he is living in the EU and (ii) it is not reasonable to expect JM to relocate to Thailand. 70. In such circumstances a refusal to grant the appellant entry clearance would lead to a permanent breakdown in the physical relationship between the appellant and her child FM (and indeed JM), save for the possibility of contact during visits. 71. The best interests of the children in this case acquire a particular force on the facts, taking account of the developmental and emotional difficulties encountered by JM. Although we do not have the same insight into any difficulties encountered by FM, inevitably there will have been a negative impact on him in coming to terms with his father and older brother being in the United Kingdom and their contact being largely only via Skype, with only the most limited physical interaction. 72. The Secretary of State is undoubtedly entitled to rely on economic considerations as justification for the accepted interference. We have found M credible and we consider that we have been given a plausible explanation why he had not previously been able to obtain employment given the limited number of free hours he would have available. 73. It does not follow, however, that where a family which includes British citizen children are being kept apart for economic reasons that the existence of children should result, using the language of Laws J, in “…a uniform prevailing force which yields no or little space to the context in hand”
“There is, however, one material difference between the two types of case, in that they generally involve the pursuit of different legitimate aims: in deportation cases it is the prevention of disorder or crime, in ordinary removal cases it is the maintenance of effective immigration control. The difference in aim is potentially important because the factors in favour of expulsion are in my view capable of carrying greater weight in a deportation case than in a case of ordinary removal. The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise. Thus I think it perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress "in principle", because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offences and the other circumstances of the case.” 76. The absence of any misconduct by the parties does not diminish the weight we must give to the economic well-being of the UK but its place in the measure of proportionality needs to be carefully evaluated in the face of the impact of continued separation of this family. We put our sympathies on one side. But what we are left with is a compelling need for this family to be reunited in the best interests of the children. The harm that would flow from their continued split is sufficient to tip the scales in favour of the appellant coming to the UK due weight having been given to the competing economic factor of limiting the demands made on the public purse. 77. The decision of the First-tier Tribunal contained an error of law in the assessment of Article 8 grounds. We re-make the decision on appeal by allowing it on Article 8 grounds. Decisions First appeal The determination of the First-tier Tribunal has been set aside. We re-make the decision on appeal allowing it on the basis that the decision of the Entry Clearance Officer of the13 February 2012 breaches the appellant’s derived rights under the Community Treaties. Second appeal The determination of the First-tier Tribunal has been set aside. We re-make the decision by allowing it on Article 8 grounds. We have both contributed to this determination. Signed: Upper Tribunal Judge O’Connor Date July 2013 60. Appendix I “[1] The appellant is a citizen of Iran living in Turkey. On13 February 2012 an Entry Clearance Officer in Istanbul refused her entry clearance to join her husband in the United Kingdom. The appellant’s husband, Mr P, is a former refugee here and is now a British citizen. The appellant and her husband married in Turkey on20 June 2007 and they have a child of their union born on8 April 2009 . Their child, A, is a British citizen and currently lives with the appellant in Turkey. [2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that the appellant and her husband had a subsisting marriage and that they intended to permanently live together, (ii) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (iii) and it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds. [3] The appeal came before First-tier Tribunal Judge R. G. Walters on30 October 2012 and was dismissed on all grounds by way of a determination promulgated on15 November 2012 . [4] In its determination the First-tier Tribunal accepted that the appellant and the sponsor were in a subsisting marriage and that they intended to live permanently with each other in the United Kingdom, but concluded that the appellant could not meet the accommodation and maintenance requirements of the Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights, and concluded that it would not. [5] Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker in a decision of10 April 2013 . Thus the appeal came before me. [6] The grounds of challenge are numerous but in broad terms seek to assert that (i) the First-tier Tribunal was wrong in its conclusion that the appellant failed to meet the maintenance and accommodation requirements of the Rule, (ii) the First-tier Tribunal erred by failing to consider whether the appellant met the requirements of paragraph 325A of the Immigration Rules and finally (iii) the First-tier Tribunal’s consideration ofArticle 8 ECHR grounds was inadequate and unlawful. [7] I shall deal with these grounds in turn. [8] In seeking to challenge the conclusion that the appellant could not meet the maintenance requirement of the Rule, Mr Chukwudolue observed that the First-tier Tribunal had accepted that the appellant has qualifications as an interpreter and translator and in particular qualifications in interpreting and translating into the English language. It was submitted that in such circumstances the tribunal’s decision on the maintenance issue was unsustainable. [9] In its consideration of this aspect of the appeal the First-tier Tribunal drew attention to a letter from the vicar of [church], which indicates that the appellant’s language skills would help her reach out to the local community in the parish. It correctly observed, however, that nowhere in this letter did it state that the appellant would receive payment for performing such a role. There was no other evidence before the First-tier Tribunal relating to (i) the general availability of employment or self-employment in the United Kingdom as a translator or interpreter, (ii) the likely level of the pay of any employment or self-employment that may be obtained by the appellant in this regard or (iii) the likely regularity of any such employment or self-employment. [10] It was for the appellant to demonstrate on the balance of probabilities that she would be able to obtain sufficient income from employment or self-employment in the United Kingdom so as to meet the Immigration Rules. Given the paucity of evidence relating to the possibility of her obtaining income from her own sources, and given that the sponsor was a recipient of public funds, in my conclusion, far from being perverse, the First-tier Tribunal’s conclusion on the maintenance issue was inevitable. In all the circumstances I do not accept that the First-tier Tribunal erred in concluding that the appellant failed to meet the maintenance requirement of the Immigration Rule. [11] As to the issue of accommodation, the First-tier Tribunal noted that the sponsor had given evidence that he had approached [the council] in relation to the possible arrival of his wife and child in the United Kingdom and that the council had stated that once they had arrived larger accommodation would be provided to the family. The First-tier Tribunal found that this would amount to additional recourse to public funds. I, also find that this is plainly the case, as can be seen from the Tribunal’s reported decision of KA & Others (public funds: housing) Iraq[2007] UKAIT 00081 . [12] The grounds seek to do no more than assert that the appellant’s current accommodation satisfies the Immigration Rules, however, as indicated above, the local authority has indicated that they would move the sponsor to larger accommodation upon the appellant’s arrival and, consequently, the tribunal was right to conclude as it did on the issue of accommodation. [13] For the reasons given above I therefore find that the First-tier Tribunal did not err in its conclusions made in relation to paragraph 281 of the Immigration Rules. [14] The second tranche of grounds relied upon by the appellant generally assert that the First-tier Tribunal erred in (i) failing to consider paragraph 352A of the Immigration Rules and (ii) failing to properly consider and address the decision of the Upper Tribunal in FH (post-flight spouse) Iran[2010] UKUT 275 . [15] These are manifestly hopeless grounds. The former was quite properly withdrawn by Mr Chukwudolue during the course of his submissions. For the sake of clarity I observe that paragraph 352A of the Immigration Rules relates to marriages which took place prior to the flight of the refugee and, in any event, relates only to those persons whom are in the United Kingdom and currently have refugee status. The appellant falls into neither of these categories. The sponsor fled Iran prior to marrying the appellant and, in any event, the sponsor was no longer a refugee as of the date of the ECO’s decision; he having been granted British citizenship (see paragraph 339BA of the Immigration Rules). [16] As to the relevance of the decision in FH Iran, this decision considers an applicant who engaged in a post-flight marriage to a person who was a refugee with 5 years leave to remain, in the United Kingdom. Consequently, such person could neither satisfy paragraph 352A of the Rules nor paragraph 281 of the Rules, the latter being as a consequence of the fact that the United Kingdom based sponsor did not have settled status. As indicated above, the sponsor in the instant appeal does have settled status in the United Kingdom. Consequently, the rationale which underpins the decision in FH plainly does not apply to the instant appeal. [17] I now turn to my consideration of theArticle 8 ECHR ground. [18] In my conclusion the First-tier Tribunal’s decision in this regard contains an error of law such that it ought to be set aside. [19] In paragraphs 32 and 33 of its determination the First-tier Tribunal stated as follows: “[32]The sponsor was asked at the hearing why he could not relocate to Turkey to continue his family life there with the appellant and his son. He replied that he would receive no state benefits in Turkey and also that he would have to pay for his son’s education. [33] I did not find that either of these factors would cause the interference to be disproportionate. If it were to be so held, it would mean that the appellant would essentially be able to bypass the requirements of the Immigration Rules that she be adequately maintained and accommodated. It appears that the only reason the sponsor gives for not moving to Turkey and exercising his family life rights there is financial. He does not suggest, for example, that Turkey’s immigration law would prohibit him from settling there as the appellant’s husband.” [20] These two paragraphs contain a series of errors. It is plain that the First-tier Tribunal erred by failing to direct itself as to the appropriate consideration when assessing whether the sponsor should be required to live in Turkey. The tribunal ought to have asked itself whether it was reasonable for the sponsor to move to Turkey not whether it was proportionate for him to do so. Secondly, contrary to that which is stated in paragraph 33 of the determination, both the appellant’s witness statement and the skeleton argument drawn on his behalf list a whole host of reasons why it was asserted to be unreasonable to expect the sponsor to move to Turkey, including the fact that he has serious health problems for which he receives support in the United Kingdom. The First-tier Tribunal erred in failing to take such matters into account when coming to its conclusion on the issue of proportionality. Thirdly, and of most significance, is the failure of the First-tier Tribunal to recognise that the appellant’s child is a British citizen and thereby has certain EU law rights. [21] I do not accept Ms Horsley’s submission that the consequence of the appellant being unable to meet the new Article 8 requirements, as set out in the Immigration Rules after9 July 2012 , is that his appeal is not capable of succeeding onArticle 8 ECHR grounds. Firstly, those Rules post date the decision under appeal and do not act retrospectively and, further, the tribunal is also required to consider whether the ECO’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights as protected bysection 6 of the Human Rights Act 1998 . [22] For all these reasons, I set aside the First-tier Tribunal’s determination insofar as it relates to theArticle 8 ECHR ground and direct that the decision on appeal be remade by the Upper Tribunal. The findings made in relation to the Immigration Rules are to remain standing” [2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that the appellant and her husband had a subsisting marriage and that they intended to permanently live together, (ii) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (iii) and it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds. [3] The appeal came before First-tier Tribunal Judge R. G. Walters on30 October 2012 and was dismissed on all grounds by way of a determination promulgated on15 November 2012 . [4] In its determination the First-tier Tribunal accepted that the appellant and the sponsor were in a subsisting marriage and that they intended to live permanently with each other in the United Kingdom, but concluded that the appellant could not meet the accommodation and maintenance requirements of the Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights, and concluded that it would not. [5] Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Coker in a decision of10 April 2013 . Thus the appeal came before me. [6] The grounds of challenge are numerous but in broad terms seek to assert that (i) the First-tier Tribunal was wrong in its conclusion that the appellant failed to meet the maintenance and accommodation requirements of the Rule, (ii) the First-tier Tribunal erred by failing to consider whether the appellant met the requirements of paragraph 325A of the Immigration Rules and finally (iii) the First-tier Tribunal’s consideration ofArticle 8 ECHR grounds was inadequate and unlawful. [7] I shall deal with these grounds in turn. [8] In seeking to challenge the conclusion that the appellant could not meet the maintenance requirement of the Rule, Mr Chukwudolue observed that the First-tier Tribunal had accepted that the appellant has qualifications as an interpreter and translator and in particular qualifications in interpreting and translating into the English language. It was submitted that in such circumstances the tribunal’s decision on the maintenance issue was unsustainable. [9] In its consideration of this aspect of the appeal the First-tier Tribunal drew attention to a letter from the vicar of [church], which indicates that the appellant’s language skills would help her reach out to the local community in the parish. It correctly observed, however, that nowhere in this letter did it state that the appellant would receive payment for performing such a role. There was no other evidence before the First-tier Tribunal relating to (i) the general availability of employment or self-employment in the United Kingdom as a translator or interpreter, (ii) the likely level of the pay of any employment or self-employment that may be obtained by the appellant in this regard or (iii) the likely regularity of any such employment or self-employment. [10] It was for the appellant to demonstrate on the balance of probabilities that she would be able to obtain sufficient income from employment or self-employment in the United Kingdom so as to meet the Immigration Rules. Given the paucity of evidence relating to the possibility of her obtaining income from her own sources, and given that the sponsor was a recipient of public funds, in my conclusion, far from being perverse, the First-tier Tribunal’s conclusion on the maintenance issue was inevitable. In all the circumstances I do not accept that the First-tier Tribunal erred in concluding that the appellant failed to meet the maintenance requirement of the Immigration Rule. [11] As to the issue of accommodation, the First-tier Tribunal noted that the sponsor had given evidence that he had approached [the council] in relation to the possible arrival of his wife and child in the United Kingdom and that the council had stated that once they had arrived larger accommodation would be provided to the family. The First-tier Tribunal found that this would amount to additional recourse to public funds. I, also find that this is plainly the case, as can be seen from the Tribunal’s reported decision of KA & Others (public funds: housing) Iraq[2007] UKAIT 00081 . [12] The grounds seek to do no more than assert that the appellant’s current accommodation satisfies the Immigration Rules, however, as indicated above, the local authority has indicated that they would move the sponsor to larger accommodation upon the appellant’s arrival and, consequently, the tribunal was right to conclude as it did on the issue of accommodation. [13] For the reasons given above I therefore find that the First-tier Tribunal did not err in its conclusions made in relation to paragraph 281 of the Immigration Rules. [14] The second tranche of grounds relied upon by the appellant generally assert that the First-tier Tribunal erred in (i) failing to consider paragraph 352A of the Immigration Rules and (ii) failing to properly consider and address the decision of the Upper Tribunal in FH (post-flight spouse) Iran[2010] UKUT 275 . [15] These are manifestly hopeless grounds. The former was quite properly withdrawn by Mr Chukwudolue during the course of his submissions. For the sake of clarity I observe that paragraph 352A of the Immigration Rules relates to marriages which took place prior to the flight of the refugee and, in any event, relates only to those persons whom are in the United Kingdom and currently have refugee status. The appellant falls into neither of these categories. The sponsor fled Iran prior to marrying the appellant and, in any event, the sponsor was no longer a refugee as of the date of the ECO’s decision; he having been granted British citizenship (see paragraph 339BA of the Immigration Rules). [16] As to the relevance of the decision in FH Iran, this decision considers an applicant who engaged in a post-flight marriage to a person who was a refugee with 5 years leave to remain, in the United Kingdom. Consequently, such person could neither satisfy paragraph 352A of the Rules nor paragraph 281 of the Rules, the latter being as a consequence of the fact that the United Kingdom based sponsor did not have settled status. As indicated above, the sponsor in the instant appeal does have settled status in the United Kingdom. Consequently, the rationale which underpins the decision in FH plainly does not apply to the instant appeal. [17] I now turn to my consideration of theArticle 8 ECHR ground. [18] In my conclusion the First-tier Tribunal’s decision in this regard contains an error of law such that it ought to be set aside. [19] In paragraphs 32 and 33 of its determination the First-tier Tribunal stated as follows: “[32]The sponsor was asked at the hearing why he could not relocate to Turkey to continue his family life there with the appellant and his son. He replied that he would receive no state benefits in Turkey and also that he would have to pay for his son’s education. [33] I did not find that either of these factors would cause the interference to be disproportionate. If it were to be so held, it would mean that the appellant would essentially be able to bypass the requirements of the Immigration Rules that she be adequately maintained and accommodated. It appears that the only reason the sponsor gives for not moving to Turkey and exercising his family life rights there is financial. He does not suggest, for example, that Turkey’s immigration law would prohibit him from settling there as the appellant’s husband.” [33] I did not find that either of these factors would cause the interference to be disproportionate. If it were to be so held, it would mean that the appellant would essentially be able to bypass the requirements of the Immigration Rules that she be adequately maintained and accommodated. It appears that the only reason the sponsor gives for not moving to Turkey and exercising his family life rights there is financial. He does not suggest, for example, that Turkey’s immigration law would prohibit him from settling there as the appellant’s husband.” [20] These two paragraphs contain a series of errors. It is plain that the First-tier Tribunal erred by failing to direct itself as to the appropriate consideration when assessing whether the sponsor should be required to live in Turkey. The tribunal ought to have asked itself whether it was reasonable for the sponsor to move to Turkey not whether it was proportionate for him to do so. Secondly, contrary to that which is stated in paragraph 33 of the determination, both the appellant’s witness statement and the skeleton argument drawn on his behalf list a whole host of reasons why it was asserted to be unreasonable to expect the sponsor to move to Turkey, including the fact that he has serious health problems for which he receives support in the United Kingdom. The First-tier Tribunal erred in failing to take such matters into account when coming to its conclusion on the issue of proportionality. Thirdly, and of most significance, is the failure of the First-tier Tribunal to recognise that the appellant’s child is a British citizen and thereby has certain EU law rights. [21] I do not accept Ms Horsley’s submission that the consequence of the appellant being unable to meet the new Article 8 requirements, as set out in the Immigration Rules after9 July 2012 , is that his appeal is not capable of succeeding onArticle 8 ECHR grounds. Firstly, those Rules post date the decision under appeal and do not act retrospectively and, further, the tribunal is also required to consider whether the ECO’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights as protected bysection 6 of the Human Rights Act 1998 . [22] For all these reasons, I set aside the First-tier Tribunal’s determination insofar as it relates to theArticle 8 ECHR ground and direct that the decision on appeal be remade by the Upper Tribunal. The findings made in relation to the Immigration Rules are to remain standing” 61. Appendix II “[1] The appellant is a citizen of Thailand, born10 March 1973 . On7 June 2012 an Entry Clearance Officer in Bangkok refused her entry clearance to join her husband in the United Kingdom. The appellant’s husband is a British Citizen. The appellant and her husband married in Thailand on24 April 2007 and have 2 children of their union, both children being born in Thailand. The eldest child, JM, was born on23 December 2004 and lives in the United Kingdom. He has been attending school here since September 2010. The youngest child, FM, was born on14 December 2007 and has remained living in Thailand since birth. The children are both dual Thai and British nationals. [2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (ii) it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds (iii) refusing entry clearance would not lead to a breach ofArticle 8 ECHR . [3] The appellant appealed to the First-tier Tribunal and the appeal cane before First-tier Tribunal Judge Grimshaw on28 February 2012 . It dismissed on all grounds by way of a determination promulgated on7 March 2013 . [4] In its determination the First-tier Tribunal concluded that the appellant could not meet the accommodation and maintenance requirements of the Immigration Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights, and concluded that, although Article 8 was engaged [25], refusing the appellant entry clearance was proportionate. In doing so the tribunal gave the following reasons: [26] However, I am required to weigh the rights of the individual and the rights of society as a whole. I have kept in mind the balancing exercise that must be carried out in order to strike a fair balance between the competing interests of the individual and the community. I have taken into account the Respondent’s legitimate aim of protecting this country’s well being by maintaining proper immigration control, and, on the other hand the effect of separation on the appellant and the sponsor. As far as that is concerned I am aware that the couple also have two young children, one of whom remains in Thailand. The other child who lives with the sponsor in the United Kingdom is displaying behavioural problems and the school is sufficiently concerned about his welfare to make a referral under the child protection framework. [27] It is not entirely clear to me why the sponsor is prevented from enjoying family life with the appellant and his children in Thailand. The letter that he has submitted simply refers to the prospect of their children having a better future by receiving an English education in the United Kingdom. However, that factor alone does not persuade me that it would be unreasonable to expect the sponsor to make a home with the appellant and their children in Thailand. It is the sponsor’s own evidence that since 2002 he has lived and travelled extensively in Thailand with the appellant and has met her family and friends. [28] I remind myself that the sponsor is not prevented from visiting the appellant abroad and using modern technology to keep their marriage and family alive during their periods of separation. It is evident that the family already have access to modern means of communication, including Skype. Furthermore, there is nothing to the prevent the appellant making a fresh application for entry clearance to the United Kingdom in the future that addresses the issues raised in this determination. I bear in mind that respect for the right to family life does not and cannot prevent the State from establishing conditions which conflict with family life if such conditions maintain an appropriate balance between private life and the public interest. Respect for family life does not necessarily mean that members of one family can establish themselves in the country of their choice. [29] Accordingly, I am satisfied that the decision to refuse entry clearance in this case is one that can be justified by the Respondent as proportionate and a fair balance between competing considerations.” [5] I granted the appellant permission to appeal to the Upper Tribunal, in a decision of the24 April 2013 , for the following reasons: “It is arguable, however, that the First-tier Tribunal erred in its consideration ofArticle 8 ECHR by (i) failing to lawfully consider the best interests of the British Citizen/dual national children and (ii) by failing to consider and apply the relevant principles of EU law set out in the Upper Tribunal’s decision in Sanade and others (British children - Zambrano – Dereci)[2012] UKUT 00048 , [such principles being more recently considered by the Upper Tribunal in its decision in Izuazu (Article 8 – new rules)[2013] UKUT 00045 (IAC) ].” [6] At the hearing Ms Horsley submitted that the First-tier Tribunal had not materially erred in law. She accepted that the tribunal had made no mention of the best interests of the appellant’s children but submitted that it could be inferred from the decision that (i) the tribunal had been aware that the children are British, (ii) that it had considered the best interests of the children and (iii) that having done so it had concluded that the ECO’s decision was nevertheless proportionate. [7] Upon being invited by the Upper Tribunal to identify what the First-tier Tribunal had found the best interests of the children to be, Ms Horsley submitted that given that the children are dual nationals it could not necessarily be said that there best interests lie in being in the United Kingdom and that, in any event, even if the best interests of the children did lie in being in the United Kingdom this would not, on the facts of the instant case, outweigh the public interest in refusing entry clearance. Ms Horsley then sought to persuade the tribunal that the relevant public interest is that which is reflected in the Immigration Rules as they currently stand, when taken in conjunction with the Immigration Directorate Instructions dated May 2013. [8] I reject the above submissions and conclude that the First-tier Tribunal’s failure to consider the best interests of the children, or at the very least the United Kingdom based child, amounts to an error on a point of law capable of affecting the outcome of the appeal. [9] Contrary to Ms Horsley’s submission I do not accept it can be inferred from the First-tier Tribunal’s determination that it took into account the best interests of the children. No specific mention is made in the determination of section 55 or of the best interests of the children. No attempt is made to identify what those best interests are, and no reasons are given for any conclusions that may have been made on this issue. Further, if the tribunal did make a finding as to what would be in the best interests of the children, it did not direct itself that those interests must be treated as a primary consideration, nor does it obviously apply such direction even if not explicitly stated. [10] In short the First-tier Tribunal’s determination is devoid of any recognition of its role in assessing where the best interests of the children lie. [11] As to whether such error is capable of affecting the outcome of the appeal, I find that it plainly is. In my conclusion it cannot be said that there is only one possible outcome to this appeal. [12] As to Ms Horsley’s submission that the Secretary of State’s view of where the public interests lies is that reflected in the current Immigration Rules and the May 2013 IDI’s, I leave this point open for further argument in the re-making of the decision; however, my preliminary view is that such a submission is misguided, given the terms of Sections 85 and 85A(2) of theNationality, Immigration and Asylum Act 2002 and the opinions of their Lordships House in AS Somalia[2009] UKHL 32 , i.e. that on appeal against a decision to refuse entry clearance it is the circumstances appertaining as of the date of the ECO’s decision that are relevant. The ECO’s decision in the instant matter pre-dates the changes to the Immigration Rules relied upon by Ms Horsley. [13] I consequently find that the decision of the First-tier Tribunal contained an error of law capable of affecting the outcome of the appeal and for this reason I set it aside. The scope of that hearing is to be restricted to a consideration ofArticle 8 ECHR , there being no material error in the First-tier Tribunal’s consideration of the ground relating to the Immigration Rules.” [2] The Entry Clearance Officer refused the appellant entry clearance for three reasons (i) it was not accepted that there would be adequate accommodation for the parties and any dependants without recourse to public funds (ii) it was not accepted that the parties would be able to maintain themselves adequately without recourse to public funds (iii) refusing entry clearance would not lead to a breach ofArticle 8 ECHR . [3] The appellant appealed to the First-tier Tribunal and the appeal cane before First-tier Tribunal Judge Grimshaw on28 February 2012 . It dismissed on all grounds by way of a determination promulgated on7 March 2013 . [4] In its determination the First-tier Tribunal concluded that the appellant could not meet the accommodation and maintenance requirements of the Immigration Rules. The tribunal also considered whether the Entry Clearance Officer’s decision would lead to a breach of the appellant’sArticle 8 ECHR rights, and concluded that, although Article 8 was engaged [25], refusing the appellant entry clearance was proportionate. In doing so the tribunal gave the following reasons: [26] However, I am required to weigh the rights of the individual and the rights of society as a whole. I have kept in mind the balancing exercise that must be carried out in order to strike a fair balance between the competing interests of the individual and the community. I have taken into account the Respondent’s legitimate aim of protecting this country’s well being by maintaining proper immigration control, and, on the other hand the effect of separation on the appellant and the sponsor. As far as that is concerned I am aware that the couple also have two young children, one of whom remains in Thailand. The other child who lives with the sponsor in the United Kingdom is displaying behavioural problems and the school is sufficiently concerned about his welfare to make a referral under the child protection framework. [27] It is not entirely clear to me why the sponsor is prevented from enjoying family life with the appellant and his children in Thailand. The letter that he has submitted simply refers to the prospect of their children having a better future by receiving an English education in the United Kingdom. However, that factor alone does not persuade me that it would be unreasonable to expect the sponsor to make a home with the appellant and their children in Thailand. It is the sponsor’s own evidence that since 2002 he has lived and travelled extensively in Thailand with the appellant and has met her family and friends. [28] I remind myself that the sponsor is not prevented from visiting the appellant abroad and using modern technology to keep their marriage and family alive during their periods of separation. It is evident that the family already have access to modern means of communication, including Skype. Furthermore, there is nothing to the prevent the appellant making a fresh application for entry clearance to the United Kingdom in the future that addresses the issues raised in this determination. I bear in mind that respect for the right to family life does not and cannot prevent the State from establishing conditions which conflict with family life if such conditions maintain an appropriate balance between private life and the public interest. Respect for family life does not necessarily mean that members of one family can establish themselves in the country of their choice. [29] Accordingly, I am satisfied that the decision to refuse entry clearance in this case is one that can be justified by the Respondent as proportionate and a fair balance between competing considerations.” [5] I granted the appellant permission to appeal to the Upper Tribunal, in a decision of the24 April 2013 , for the following reasons: “It is arguable, however, that the First-tier Tribunal erred in its consideration ofArticle 8 ECHR by (i) failing to lawfully consider the best interests of the British Citizen/dual national children and (ii) by failing to consider and apply the relevant principles of EU law set out in the Upper Tribunal’s decision in Sanade and others (British children - Zambrano – Dereci)[2012] UKUT 00048 , [such principles being more recently considered by the Upper Tribunal in its decision in Izuazu (Article 8 – new rules)[2013] UKUT 00045 (IAC) ].” [6] At the hearing Ms Horsley submitted that the First-tier Tribunal had not materially erred in law. She accepted that the tribunal had made no mention of the best interests of the appellant’s children but submitted that it could be inferred from the decision that (i) the tribunal had been aware that the children are British, (ii) that it had considered the best interests of the children and (iii) that having done so it had concluded that the ECO’s decision was nevertheless proportionate. [7] Upon being invited by the Upper Tribunal to identify what the First-tier Tribunal had found the best interests of the children to be, Ms Horsley submitted that given that the children are dual nationals it could not necessarily be said that there best interests lie in being in the United Kingdom and that, in any event, even if the best interests of the children did lie in being in the United Kingdom this would not, on the facts of the instant case, outweigh the public interest in refusing entry clearance. Ms Horsley then sought to persuade the tribunal that the relevant public interest is that which is reflected in the Immigration Rules as they currently stand, when taken in conjunction with the Immigration Directorate Instructions dated May 2013. [8] I reject the above submissions and conclude that the First-tier Tribunal’s failure to consider the best interests of the children, or at the very least the United Kingdom based child, amounts to an error on a point of law capable of affecting the outcome of the appeal. [9] Contrary to Ms Horsley’s submission I do not accept it can be inferred from the First-tier Tribunal’s determination that it took into account the best interests of the children. No specific mention is made in the determination of section 55 or of the best interests of the children. No attempt is made to identify what those best interests are, and no reasons are given for any conclusions that may have been made on this issue. Further, if the tribunal did make a finding as to what would be in the best interests of the children, it did not direct itself that those interests must be treated as a primary consideration, nor does it obviously apply such direction even if not explicitly stated. [10] In short the First-tier Tribunal’s determination is devoid of any recognition of its role in assessing where the best interests of the children lie. [11] As to whether such error is capable of affecting the outcome of the appeal, I find that it plainly is. In my conclusion it cannot be said that there is only one possible outcome to this appeal. [12] As to Ms Horsley’s submission that the Secretary of State’s view of where the public interests lies is that reflected in the current Immigration Rules and the May 2013 IDI’s, I leave this point open for further argument in the re-making of the decision; however, my preliminary view is that such a submission is misguided, given the terms of Sections 85 and 85A(2) of theNationality, Immigration and Asylum Act 2002 and the opinions of their Lordships House in AS Somalia[2009] UKHL 32 , i.e. that on appeal against a decision to refuse entry clearance it is the circumstances appertaining as of the date of the ECO’s decision that are relevant. The ECO’s decision in the instant matter pre-dates the changes to the Immigration Rules relied upon by Ms Horsley. [13] I consequently find that the decision of the First-tier Tribunal contained an error of law capable of affecting the outcome of the appeal and for this reason I set it aside. The scope of that hearing is to be restricted to a consideration ofArticle 8 ECHR , there being no material error in the First-tier Tribunal’s consideration of the ground relating to the Immigration Rules.”