Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01166/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 January 2017
On 6 February 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

miss jessica akua twum
(aNONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Bassiri-Defouli Counsel instructed by BWF Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge Bartlett who refused her appeal against the decision of the Entry Clearance Officer, dated 22 May 2015, refusing her application dated 16th April 2015, under paragraph 297 of the United Kingdom Immigration Rules on the basis of paragraph 287(i)(e) and (f) of the Immigration Rules.
2. The appellant was notified of her right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002. Under that provision the appellant is able to appeal not against the decision in relation to the Immigration Rules but on human rights grounds. Nonetheless consideration under the relevant Immigration Rules is a factor to be taken into account when considering the human rights appeal.
3. The grounds of appeal assert that the determination was flawed, wrong in law and so perverse that no other Immigration Judge could have made it. Paragraph 297 sets out as follows:
"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) Both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal under the general grounds for refusal."
4. The grounds for permission to appeal assert that the judge considered the matter under 297(i)(e) and found that both of the appellant's parents who live in the UK have parental responsibility for the appellant. The grounds assert that the judge should have considered paragraph 297(i)(a) and the Entry Clearance Officer had made a mistake in not considering that both the appellants lived in the UK.
5. At the hearing before me Ms Bassiri submitted that a letter had been written to the Entry Clearance Officer by the appellant's solicitors pointing out that paragraph 297(i)(c) should have been considered. That was not a matter which was pleaded in the grounds and I shall return to this.
6. In the alternative it was argued, in the written grounds, that the findings of the judge show that the parents have sole responsibility and therefore the appellant's grandmother did not have sole responsibility. It was submitted that as the appellant's parents having been found to have sole responsibility and that they both lived in the UK the judge should have allowed the appeal. The judge failed to consider that the Immigration Rules are designed to consider whether the appellant's sponsor who lives in the UK had sole responsibility or whether the parent or relative that the appellant lives with in the country of origin had sole responsibility.
7. In the alternative the judge failed to consider that paragraph 297(i)(e) and (f) which were either/or clauses. The appellant did not have to satisfy both of the subparagraphs in order to succeed under the paragraph. The judge had made positive findings in favour of the appellant accepting that the appellant was distressed by remaining in Ghana and separated from her parents. However she did not find that the circumstances amounted to serious and compelling circumstances.
8. Further the judge was wrong to consider paragraph 297(iv) as this was not a point raised by the Entry Clearance Officer.
9. From the Record of Proceedings it is clear that the discussion before the judge was whether paragraph 297 or paragraph 301 was a consideration and it was concluded that Paragraph 297 applied.
10. The evidence given was that the appellant is a national of Ghana, born on 28 March 2001 and an application was made for entry under paragraph 297 on 5 May 2015. The appellant currently lived with her grandmother and had lived with her mother until her mother came to the United Kingdom when she was 4 years old on 12 July 2005 to join her father. There are three other children born to her parents in 2007, 2010 and 2013. The sponsor father visited the appellant between April and May 2015. The appellant's paternal grandmother, with whom the appellant lives, is elderly and with health issues and it was asserted could no longer care for the appellant. It was also stated that the appellant's sponsor mother did not live with the appellant's father because they were not married but the appellant would live with her in the UK.
11. For the purposes of the Immigration Rules "settled in the United Kingdom" is outlined at paragraph 6 under 'Interpretation':
"Settled in the United Kingdom means that the person concerned:
(a) is free from any restriction on the period for which he may remain save that a person entitled to an exemption under Section 8 of the Immigration Act 1971 (otherwise than as a member of the home forces) is not to be regarded as settled in the United Kingdom except in so far as Section 8(5A) so provides; and
(b) is either:
(i) ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii) despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily residence."
12. It is clear that the father has limited leave to remain until 23 September 2017. The mother would appear to have a permanent residence card valid until 5 August 2022. Nonetheless the judge proceeded on the basis that the mother had settled status (this was not disputed by the Respondent) but the father did not, and that would appear to be the case made out by the solicitors in their letter of 5 May 2015. The mother arrived in the UK on 12 July 2005 and the father arrived on 20 December 2002.
13. It was thus asserted that the judge had erred in the application of paragraph 297(e) and (f) and further had failed to consider paragraph 297(a) or (c) as Ms Bassiri contended at the hearing before me.
14. Going through the various permutations of paragraph 297(i) it is clear that under (a) both parents are not present and settled in the United Kingdom; under (b) both parents are not being admitted on the same occasion for settlement; under (c) the father is not being admitted on the same occasion for settlement as the mother; (d) it is not the case that one parent is dead and, therefore, in my view the judge correctly applied paragraph (e) considering whether one parent was present and settled in the UK and had sole parental responsibility for the child's upbringing. At paragraph 11 the judge found that the parents shared parental responsibility. Evidently it is not the case that one parent was settled with sole responsibility as both parents are here and shared responsibility.
15. With reference to paragraph (f) the judge considered whether one parent or a relative was present and settled and there were serious and compelling family or other considerations which made exclusion of the child undesirable. This is the provision applicable to this appellant. The judge made relevant findings under the Immigration Rules. At [13] she found that the appellant was 15 at the date of decision and that the appellant lived with her grandmother and that the step-grandfather visited the home every evening. The judge found that the appellant's father had come to the United Kingdom in 2002 and thus his care of the appellant had lasted for eighteen months and there was now a gap of twelve years. He had made some financial contribution but had failed to show that there was any regularity of financial support.
16. Specifically the judge found at [16] that the appellant's mother who had left Ghana in 2005 had only revisited Ghana once, in 2015 because of financial constraints. This, the judge found was "indicative of the different relationship that she has with the appellant and the three children in the United Kingdom".
17. The judge at [15] did not find the appellant's grandmother suffered from serious illness or ill-health and no medical evidence had been provided to that effect and further the appellant's grandmother was able to care for her to an adequate standard in terms of housing, education and feeding and assisted by the grandfather.
18. The judge carefully looked at the compelling circumstances in relation to the appellant and also those of the sponsor and siblings and she considered the best interests of the appellant under Section 55. She found as follows:
"17. I have given careful consideration to the appellant's best interests within section 55 of the Borders, Citizenship and Immigration Act 2009, even though it does not strictly apply to cases where the child is outside of the United Kingdom. The appellant has lived in Ghana all of her life, that is 14 years at the date of decision and 15 at the date of appeal. She has lived with her grandmother since 2005 when she was four years old. She has undergone all of her schooling in Ghana and has deep cultural roots in Ghana and its society, particularly in light of the fact Mr Twum and Miss Addo have only visited her a small number of times. I accept that the appellant has met her younger siblings but she has only met them once and I find that her life and relationship with them is limited despite the fact that she speaks to them over the telephone on an almost daily basis. I also find that the appellant has a family relationship with her uncle in Ghana. I find that Mr Twum cared for the appellant and lived with her from when she was born until when Mr Twum came to United Kingdom in 2005. However I find that Mr Twum has been separated from the appellant since that date and has only seen her on one occasion since then. Therefore in all of these circumstances I find it is in the appellant's best interest to remain in Ghana with those with whom she has lived for the past approximately 10 years and in a society in which she has deep roots.
18. I have given consideration to Miss Addo and Mr Twum's three other children and the appellant's siblings who are in the United Kingdom. I accept that one of these is a British citizen and that the others have settlement here. I find that they have a limited relationship with the appellant by virtue of the fact that they have only met her once and the youngest child is only three years at the date of the hearing and two years old at the date of the decision and the relationship he could form with the appellant is limited by their distance and his young years. The eldest sibling is nine years old at the date of the appeal and eight at the date of the decision. As he has only visited the appellant once, and then for a reasonably short period of time, and all other communications has been by electronic means, I find that this relationship is limited in its depth. In considering section 55 of the Borders, Citizenship and Immigration Act 2009, I find that it is in the three siblings who are in the United Kingdom's best interests for the appellant to remain in Ghana. I make this finding because they have never lived together as a family and the addition of a new sibling under the same roof as them, if she were to live with Miss Addo, would have a significant effect on the family dynamic and this would be very unsettling for the youngest sibling at the very least. The effect on the family dynamic is not clear and I am not prepared to assume that it would be positive in all respects.
19. I accept that the appellant, Miss Addo and Mr Twum would all greatly like the appellant to come to the United Kingdom. I accept that the appellant is distressed by remaining in Ghana and separated from her parents and from her siblings. However I do not find that these circumstances amount to serious and compelling circumstances."
19. There was discussion of the use of the terms 'serious' and 'compelling' in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC) and which underlined that the sensible construction of the immigration rules should be employed. The Immigration Directorate Instructions then in force and which referred to a similar provision emphasised that the objective of this provision was to allow a child to join a parent or relative in this country only where that child could not be adequately cared for by his parents or relatives in his own country. There was also reference to the internationally accepted principle that a child should first and foremost be cared for by his natural parent(s), or, if this is not possible, by his natural relatives in the country in which he lives. The judge gave various and specific reasons for finding as she did and bearing in mind the appellant's relationship with her grandparents those findings were open to her. The judge also found that the appellant could make a further application.
20. There was criticism of the judge for taking into account a matter that the Entry Clearance Officer had not considered and that was in relation to the accommodation requirements of paragraph 297. As pointed out in relation to Kwok on Tong (HC 395 para 320) India [2006] UKAIT 00039, albeit that the financial position was raised by the judge and not considered by the Entry Clearance Officer the appellant's parents' financial position differed from that relied on in the application as the parents had decided to separate again and that was found at paragraph 5. Nevertheless the challenge to the judge's approach is overcome by the judge's finding at paragraph 21 that even if the financial support and accommodation requirements of paragraph 297 were satisfied the appellant could not satisfy paragraph 297 of the Immigration Rules because of her earlier findings.
21. The grounds are premised on the basis that the First-tier Tribunal Judge had misread the Rules in relation to paragraph 297(i)(a), not (c), and as pointed out in the Rule 24 response from the Respondent both parents must be present and settled in the United Kingdom for (a) and (c) to apply. There is no such finding that both of the appellant's parents are in the United Kingdom with indefinite leave to remain. I am not persuaded on a reading of the Immigration Rules that an error of law was made in the application of Paragraph 297.
22. It is clear that the application was made and turned on whether there are serious and compelling circumstances which make the exclusion of the appellant undesirable. The judge fully explored the concept and gave her conclusions and findings at paragraph 13 to 20; on the evidence those findings were open to her and those cannot be arguably said to be perverse.
23. The judge then addressed her mind to any compelling circumstances to be identified outside the Rules and effectively considered that there was no "gap in this situation" between the rules and a consideration under Article 8.
24. This in effect was an appeal in relation to the appellant's human rights, rather than an appeal on the basis of the immigration rules. The rules, however, were clearly relevant to the assessment of proportionality and, having considered all the relevant factors including any compelling circumstances under the rules the judge properly continued to apply Section 117 of the Nationality Immigration and Asylum Act 2002. The judge was clearly aware that the sponsors were the biological parents of the appellant but found, nonetheless, that the best interests of this child were to remain with the grandparents and further there was no evidence that the appellant could speak English or that she would be financially independent. Those findings were open to the judge under Section 117B. The judge considered the rights of the remainder of the family further to Beoku-Betts v SSHD [2008] UKHL 39 but ultimately gave weight to the primary consideration that being, as the judge found them, having weighed all the evidence, the best interests of the appellant.
Notice of Decision
25. In the circumstances there is no error of law and the decision of the First-tier Tribunal shall stand.

NO ANONYMITY DIRECTION

Signed Helen Rimington Date 3rd February 2017

Upper Tribunal Judge Rimington