OA235112012 & OA235142012

The appellants are citizens of Jamaica, born respectively on 15 July 1998 and 1 September 1995. They are half siblings and the biological children of the sponsor, Lisa Williams, a person present and settled in the United Kingdom. In August 2012 they applied for entry clearance to the United Kingdom as dependants of the sponsor. On 24 October 2012 the respondent refused their applications.

The appellants appealed against that decision and on 27 August 2013 their appeal was heard at Taylor House by First-tier Tribunal Judge Elliman. In a determination promulgated on 3 September 2013, she allowed their appeals on human rights grounds (Article 8), having found that the appellants could not meet the requirements of the Immigration Rules; namely, that, if admitted, the appellants could be satisfactorily maintained, without recourse to public funds.

The respondent was given permission to appeal Judge Elliman�s decision and on 22 November 2013 the appeal was heard in the Upper Tribunal by Deputy Upper Tribunal Judge Wilson. In a decision dated 27 November 2013, Deputy Judge Wilson found an error of law in Judge Elliman�s determination, as a result of which he set the determination aside. Deputy Judge Wilson�s written reasons are set out in the Appendix to this determination.

The sponsor has a small child by a man who is not the father of either of the appellants. It is common ground that this child could not be expected to live in Jamaica. Amongst other things, he suffers from learning difficulties. The care needs of the child have, in effect, meant that the sponsor has been unable to engage in sufficiently remunerative employment to enable the appellants to join her and her young son without creating a situation in which the combined financial needs of the parties, calculated objectively (as they must) could not be met by those parties.

At [22] of her determination, Judge Elliman considered the issue of proportionality in terms of Article 8:-