HU/01909/2015

• Status of case: Unreported
• Hearing date: 17 Jan 2017
• Promulgation date: 19 Jan 2017
• Publication date: 9 Jul 2021
• Last updated on: 9 Jul 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01909/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 17 January 2017
on 19 January 2017


Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ENTRY CLEARANCE OFFICER, Manila
Appellant
and

DAVE ANGELO VALDEZ
Respondent

For the appellant, Mr M Matthews, Senior Home Office Presenting Officer
For the respondent, no legal representative; sponsor present

DETERMINATION AND REASONS
1. The ECO appeals against a determination by First-tier Tribunal Judge Blair, allowing on human rights grounds an appeal by the respondent against refusal of entry clearance to join his mother, the sponsor, in the UK.
2. The rest of this decision refers to the parties as they were in the FtT.
3. The grounds of appeal to the UT found upon TD (Yemen) [2006] UKAIT 00049, and contend that there was evidence of contact between the appellant and his father; there was a relationship between father and son; if not close, it was not an abdication of responsibility; the judge had not made a finding to that effect; the circumstances did not amount to compelling family or other reasons making the appellant's exclusion from the UK undesirable; the requirements of the rules were not met; refusal was proportionate; the judge's finding of sole responsibility erred in law, and the decision should be set aside.
4. Mr Matthews submitted that although the question of sole responsibility was for a judge according to the evidence, there was not enough in the decision to justify the outcome as a matter of law. Where the second parent was still present, there had to be evidence of abdication of responsibility. The judge had not referred to TD. The evidence and the findings fell short of what was required.
5. I indicated that the SSHD's appeal did not succeed.
6. As the Presenting Officer acknowledged, there can be and have been cases (admittedly extreme) of sole responsibility even when the child lives under the same roof as the other parent. The evidence here was that the appellant sees his father about every two months. The affidavit by the appellant's father can be read as an abdication of responsibility. The judge did not use the precise language of TD (to which he was not referred) but that is not a critical requirement. There is and could be no quarrel with the findings of the sponsor's "very clear and close involvement on an ongoing basis" (paragraph 27) and "direct control and direction ? albeit at a distance" (paragraph 29). The judge did not accept that the father's affidavit showed "responsibility ? to any significant or material degree" (emphasis added; paragraph 30). The findings of "sole responsibility" (paragraphs 31 and 36) were thereby justified. It is clear that if the judge had been asked to couch his conclusions in the terms of TD and in terms of the immigration rule, he would have had no difficulty in doing so. The judge did in effect find abdication of responsibility, and justified that conclusion. It followed from the terms of such a rule being satisfied that the appeal had to be allowed on human rights grounds. No error of law has been shown.
7. The determination of the First-tier Tribunal shall stand.
8. No anonymity direction has been requested or made.




18 January 2017
Upper Tribunal Judge Macleman