Lord Ordinary scales back decision to refuse Nigerian grandmother’s visa to see her granddaughters for the first time

Petitioner CD, who worked as a logistics manager in Nigeria, argued that the respondent failed to consider the best interests of her granddaughters and failed to provide adequate reasons for the denial of her Visa. The respondent denied that there had been a breach of the duty to consider the welfare of the children and maintained that there was no doubt as to the reasons for the decision.

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

Save and promote

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

On February 27, 2024, the respondent’s entry clearance officer refused the applicant’s visa application. 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 during the planned duration of his stay. .

For the petitioner, it was submitted that the decision maker had failed to take into account the obligation under section 55 of the Act. Borders, Citizenship and Immigration Act 2009 safeguard and promote the welfare of children in the UK. Nothing in the Respondent’s reasoning demonstrates that this task was taken into account or that V’s impairment was taken into account. This was a clerical error likely to influence the outcome of the decision.

In response, the Respondent argued that the decision-maker had no obligation to inquire further or obtain more information than was included in the request. The cover letter contained information at a very general level and made no mention of the welfare of the children. The decision maker was entitled to provide reasons with the same degree of generality.

Prohibited approach

In his ruling, Lord Braid first dealt with a challenge to the refusal of the application on financial grounds: “As counsel for the defendant argued, the question was not simply what level of Fund A held in November 2023, but if she had £1,500. available on the application review date in February 2024; and not only whether the funds existed on that date, but, if so, whether they were available to finance the petitioner’s visit.

He added: “This might have been different if the statements had demonstrated a consistent level of savings over a longer period, but where the money in the account had clearly been significantly depleted by A for his own use over a relatively short period , the decision-maker was, in any event, 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 finance her visit.

Regarding the obligation under section 55, Lord Braid said: “It is true that A’s letter of support did not explain why the welfare of the children would be furthered by 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 the welfare of the children. Without the obligations under Article 55, the Applicant could not have complained that the Respondent had responded to her high-level general “family” approach with an equally high-level general response.

He added: “However, it was the very existence of the obligations under section 55 that prevented the decision-maker from adopting this approach. The decision maker was required by section 55(1) to have regard to the need, not only to safeguard, but to promote, the welfare of V and AE. Under the obligation under section 55(3) to take into account the guidance “Every child counts: change for children”, this need had to be a primary consideration; and furthermore, V’s disability had to be taken into account.

Lord Braid concluded on the third ground: “In a context where the respondent admits in her responses to the petition that the petitioner is employed in Nigeria, there is no obvious explanation as to why the appearance of funds additional in his account led the decision maker to doubt his intention to leave the UK at the end of his visit and doubt his intentions to travel to the UK. There may 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 respondent’s decision to refuse the visa to the applicant.