Lord ordinary reduces decision to refuse Nigerian grandmother visa to see granddaughters for the first time

About this case:

• Citation:
  [2024] CSOH 101
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Petitioner CD, who was employed as a logistics manager in Nigeria, argued that the respondent had failed to consider the best interests of her granddaughters and failed to provide adequate reasons for the refusal of her visa. The respondent denied that a breach of the duty to take the welfare of children into account had taken place and argued that there was no doubt as to the reasons for the decision.

The petition for judicial review was heard by Lord Braid. Halliday, advocate, appeared for the petitioner and Middleton, advocate, for the respondent.

Safeguard and promote

The petitioner’s youngest child, A, was granted leave to remain in the UK in November 2021 as the parent of V, a British child. By the date of the petition a further child, AE, had been born, and V had been diagnosed with cerebral palsy. Having had a previous application to visit the UK refused because the respondent questioner her ability to finance her visit, the petitioner applied for a visa to permit her to enter the UK for a one-month visit with her daughter and granddaughters. She stated that she intended to contribute £700 towards the cost her visit, with another £1,500 contributed by A.

On 27 February 2024, the respondent’s Entry Clearance Officer refused the petitioner’s application for a visa. The reasons for refusal were that the decision maker was not satisfied that the petitioner had demonstrated that her circumstances were such that she intended to leave the UK at the end of her visit, nor that A could support the petitioner for the intended duration of her stay.

For the petitioner it was submitted that the decision maker failed to have regard to the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children in the UK. Nothing in the respondent’s reasoning showed that regard had been paid to the duty, or that V’s disability had been taken into account. That was a material error capable of affecting the outcome of the decision.

In response, it was submitted for the respondent that there was no duty on the decision maker to make further inquiries or cast about for more information than was included in the application. The supporting letter had provided information at a very high level of generality, and made no mention of the children’s welfare at all. The decision maker was entitled to provide reasons with that same degree of generality.

Precluded approach

In his decision, Lord Braid first dealt with a challenge to the refusal of the application on financial reasons: “As Counsel for the respondent submitted, the issue was not simply what level of funds A held in November 2023, but whether she had £1,500 available as at the date of consideration of the application in February 2024; and not only whether the funds existed at that date, but, if so, whether they were available for the purpose of funding the petitioner’s visit.”

He added: “It might have been different had the statements demonstrated a constant level of savings over a longer period of time, but where the money in the account had clearly been significantly depleted by A for her own use over a relatively short period, the decision maker was, on any view, entitled to conclude on the basis of the bank statements which had been produced that the petitioner had not established that A had £1,500 available to fund her visit.”

Turning to the section 55 duty, Lord Braid said: “It is true that A’s letter of support did not explain why the children’s welfare would be promoted by their having face to face contact with the petitioner. She simply said that it was important to spend time together as a family, and that the petitioner very much wanted to meet her grandchildren; thus, the focus was on the petitioner rather than on the welfare of the children. Had it not been for the section 55 duties, the petitioner could not have complained that the respondent had met her high level general ‘family’ approach with an equally high level general response.”

He went on to say: “However, it is the very existence of the section 55 duties which precluded the decision maker from taking that approach. The decision maker was required by section 55(1) to have regard to the need, not just to safeguard, but to promote, the welfare of V and AE. By virtue of the section 55(3) duty to have regard to the guidance, ‘Every Child Matters: Change for Children’, that need was to be a primary consideration; and, moreover, V’s disability required to be taken into account.”

Lord Braid concluded on the third ground: “Against a background where the respondent admits in her answers to the petition that the petitioner is employed in Nigeria, there is no obvious explanation as to why the appearance in her account of additional funds led the decision maker to doubt her intention to leave the UK at the end of her visit, and to doubt her intentions in travelling to the UK. There may well be an explanation but the petitioner  was entitled to know what it was.”

Having concluded that the second and third grounds of challenge were valid, the court therefore reduced the decision of the respondent to refuse the petitioner’s visa.