OA159882013 & Ors.

Judge Eban looking at the situation had concluded that if the application was allowed of the first and third Appellants, the second Appellant, who was over 18, would naturally be separated from them, and yet he was part of the family unit, and so she had decided to allow the appeal of all of the Appellants. A significant aspect of these appeals is the reason as to why the Appellants' applications to join the sponsoring Mr Ilyas Kareem in this country, had been refused in the first place. This was because they had made no less than six applications under a false name.

This was a matter that Judge Eban did not overlook. In fact, she concluded that had it not been for the ill-advised conduct of the first Appellant, who had persistently applied in a false name, the first and third Appellants would by now have joined their sponsoring father in the UK. Nevertheless, Judge Eban had concluded that the weight to be given to a fair and consistent immigration system was outweighed by the compassionate circumstances of this case.

Second, and nevertheless, the Respondent Entry Clearance Officer had then made decisions which had punished the innocent children, the second and third Appellants, who have been kept apart from their father, which was a matter accepted even by Lord Boyd in his determination, as he had recognised that, had it not been for the foolhardy behaviour of the first Appellant, the children would have joined their sponsoring father. The fact remained, however, that they were children. They were not themselves exercising any deception.

Where children were concerned, justifying exclusion, would have been particularly difficult to do, as a discretionary matter under the Rules, and this aspect should have been expressly considered by Judge Eban. The weight to be given to the children's interests had simply been overlooked. Finally, the fact here remained that the family had been separated from the sponsoring Mr Ilyas Kareem for a number of years, and yet they were a genuine family unit, and the second Appellant had formed no independent family unit of his own even to this day.

It is true he managed to get ILR and thereafter British citizenship. But the case law does not suggest that the grant of British citizenship makes it a "insurmountable obstacle" to return back to one's country of origin. In MM (Lebanon) [2017] UKSC 10 the Supreme Court more recently observed that