i) Educational advantages and economic betterment, which might be enjoyed by a child, if admitted to the United Kingdom, are not compelling considerations to make that child’s exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.
ii) There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable.
iii) The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.
iv) Paragraph 296 of HC 395, as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.
v) In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.
vi) The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.
vii) The proportionality balance in such cases is a fact sensitive one rather than determined by the rules.
Mr Justice Blake, President
Upper Tribunal Judge Dawson
[2012] UKUT 265 (IAC)
Bailii
England and Wales
Immigration
Updated: 25 January 2022; Ref: scu.463335
