(Immigration and Asylum Chamber) Appeal Number: UI-2022-000833
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On the 8th June 2022
On the 11 October 2022
UPPER TRIBUNAL JUDGE RIMINGTON
THE Secretary of State FOR THE Home Department
(anonymity direction NOT MADE)
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: Mr E Nicholson, Counsel instructed by Legal Rights Partnership
DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Mr Harvey Nakhle as the appellant. He is a Lebanese national born on 9th March 2009, and his application for indefinite leave to remain with his mother Natasha Andishi, a British citizen by descent, was refused on 31st July 2009 under paragraph 298 of Appendix FM to the Immigration Rules. The parties confirmed to me at the hearing that the applicant was not entitled, as of right to British citizenship through his mother. He came to the UK with his mother on 15th July 2019 and previously had lived with his parents in Qatar all of his life. The appellant’s mother was born in Qatar whilst the father was Lebanese. His father is a Lebanese national who married the mother in May 2008. They attempted to establish life for themselves in Qatar and started a business but lost a lot of money. The appellant’s parents made an attempt to pay back debts which they owed and in 2018 made a decision to move to the UK with the appellant. The appellant’s father remains in Qatar where he continues to work and discharge outstanding debts and the father intends to move to the UK once those have been discharged.
2. First-tier Tribunal Judge A Mehta (“the judge”) allowed the appeal on 17th November 2021 against the Secretary of State’s decision refusing the appellant’s human rights claim made with his application for indefinite leave to remain. The judge considered that the appellant had fulfilled the immigration rules and therefore allowed the matter on the basis of TZ (Pakistan) v Secretary of State  EWCA 1109.
3. The Secretary of State appealed on the basis that the judge had made a material error in allowing the appeal on human rights grounds on the basis that the requirements of paragraph 298 were met.
4. It was submitted the judge erred in finding that the appellant’s mother had sole responsibility for the appellant at . This finding was made because the appellant lives with his mother in the UK. The judge however had failed to have regard to the fact that the appellant lived with both parents in Qatar before his mother chose to come to the UK. Indeed, the appellant arrived in the UK as a visitor and subsequently sought settlement. It was submitted that travelling to the UK as a visitor was in a temporary capacity and not one which led to settlement. The mother should have sought independent legal advice.
5. The appellant’s status quo in Qatar was that he lived with both parents and therefore parental responsibility was shared between them. Residing in the UK in a temporary capacity as a visitor did not result in the appellant’s mother having assumed sole responsibility. On the appellant’s visa application it was claimed he would be travelling to the UK with his mother and father for a visit for five months and one day. The father was and is still very much involved in the appellant’s life for example by sending £3,000 per month to support them in the UK.
6. The judge found that the appellant’s removal would interfere with the appellant’s Article 8 rights but as the family had decided to split themselves it is submitted that the decision did not interfere with their family life. Indeed, Article 8 did not extend to a choice as to where the family life is to be enjoyed.
7. It is submitted that the judge had erred in law.
8. At the hearing Ms Everett submitted that where parents are still together, albeit in different countries, it could not be that an assertion by one parent merely that they had sole responsibility was sufficient. What the First-tier Tribunal Judge had found in this decision was that even within a subsisting relationship one parent had nothing to do with major decisions. That may be the case exceptionally but not here. The Immigration Rules on family and private life are devised to be proportionate policies and have in mind the concept of family unity. Here there was and is a subsisting couple and even though the child is living with the mother at the moment, and she is asserting sole responsibility, the other parent is present in their lives and merely in Qatar because he is paying off debts. It was not possible just for the mother to bring herself into the framework by merely asserting that she made all major decisions. An alternative interpretation of TD (Yemen) (Paragraph 297(i)(e): “sole responsibility”) Yemen  UKAIT 00049 would be seen that the Rules were encouraging a separation. On the basis of the evidence, albeit that the Home Office Presenting Officer (“HOPO”) accepted that there was sole responsibility, the judge was not entitled to find that the appellant’s mother had sole responsibility within the meaning of the Rules and the judge clearly misinterpreted the Rules and misdirected himself/herself. It is possible to make a concession on fact but not law. This was the decision that the family have made together to live across separate continents. Had the judge correctly followed the law and come up with good enough reasons to depart from that it would be one thing, but merely that the mother has de facto control at present was insufficient.
9. The finding in the alternative that the child “normally lives” with the mother is a similar point to that of responsibility. The child normally lived in Qatar and otherwise the concept of “normally lives” loses all meaning. This child came as a visitor, and albeit a mention of settling on the application form, he was given entry to visit, and he now had Section 3C leave which was precarious. He entered the UK in July 2019 and made an application for indefinite leave to remain in November 2019 within the currency of his visit visa.
10. The appellant’s representatives referred me to the Rule 24 response drafted by Mr Muman, and I was encouraged to read the whole of the Immigration Rule which also referred to the concept of “normally living with”. The appellant had made a candid declaration on the visit visa application that he was coming here to settle.
11. There was no challenge to the findings of fact. The mother was found to be a credible witness and the child resided with the mother in the UK and indeed was at school here and she picks the activities for him. The main purpose of the visit here was to settle, and the judge had clearly followed TD (Yemen) and took note of who had continuing control. I was referred to the letter of the father, albeit that there was no challenge by the HOPO to that letter. Paragraphs  to  were consistent with TD (Yemen) and the judge had gone into some detail as to what sole responsibility meant. The grounds made no attack on the findings.
12. Judge Grubb had in the grant of permission departed from the original grounds and I was encouraged to give the Immigration Rules their own natural meaning without gloss. As per Mahad v Entry Clearance Officer  EWCA Civ 634 there was only one answer and that was that the appellant normally lived with his mother. There was no pleaded attack on the conclusion reached by the judge in  that it is not in the grounds so there is no permission to argue it. As such the concept of “normally” was not in issue.
13. The great difficulty for the Secretary of State was the absence of authority on which she could rely. There was no authority and none in the respondent’s grounds. There was no error of law in giving a straight answer to a straight question. The judge complied with TZ (Pakistan) that if the appellant had complied with the Immigration Rules, then the human rights are made out .
14. The striking feature of Rule 298 here was that there was nothing in the Rule disqualifying the appellant from making an application under Rule 298 as a visitor.
15. Ms Everett submitted that the issue was not one of credibility. The appellant’s mother did not have to understand the law as the judge must, and what is clear that if the starting point was that both parents had responsibility particularly where the father gives consent as he does to the child moving, demonstrates that he has responsibility, and the position cannot be otherwise. Regardless of the lack of challenge, the law cannot be conceded on that basis. The attack on “normally lives with” was in fact framed in the grounds at paragraph 2.
16. The focus of the challenge related to Rule 298(i)(c). The first challenge of the Secretary of State is the approach by the judge to the question of ‘sole responsibility’. Rule 298 provides as follows:
“The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:
(i) is seeking leave to remain with 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) one parent is present and settled in the United Kingdom and the other parent is dead; or
(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing or the child normally lives with this parent and not their other parent; or
(d) one parent or a relative is present and settled in the United Kingdom 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”.
17. As set out by Upper Tribunal Judge (as he now is) Grubb in TD (Yemen) at 
‘The purpose of paragraph 297 is clear: it is designed to maintain or effect family unity’.
‘It would, in our view, usually run counter to the policy of family unity to admit a child for settlement where the parent abroad is caring for the child and involved in its upbringing, unless the requirements of paragraph 297(i)(f) are met. This must be borne in mind when interpreting, and applying, the test of “sole responsibility”.
Although this latter reference identified paragraph 297(i)(f) the approach to sole responsibility the underlying approach was to ensure recognition of the rule being designed to maintain family unity. At  it was held
‘the touchstone of “sole responsibility” is the continuing control and direction by the parent in the UK in respect of the “important decisions” about the child’s upbringing. The fact that day-to-day decision-making for a child - such as “getting the child to school safely and on time, or putting the child to bed, or seeing what it has for breakfast, or that it cleans its teeth, or has enough clothing, and so forth” (Ramos, per Dillon LJ at p 151) - rests with the carers abroad is not conclusive of the issue of “sole responsibility”.
18. It is clear that in this situation the position was reversed, and the question was whether the parent left behind had relinquished control such that the parent staying the UK had sole responsibility by undertaking the day to day caring role. This was clearly not a case where the remaining parent had disappeared from the child’s life.
19. It is quite right that there was no challenge to the findings of fact at  that the mother was found to be credible. The judge wrote at 
“34. I find that the appellant lives with his mother in the UK. The appellant is schooled in the UK and the person making the decisions about his schooling is his mother. The appellants (sic) mother was the one who made all of the decisions when they lived in Qatar and she has made all of the major decisions in the UK. The appellant’s mother described in detail and with some care in her evidence how she went about picking the right area for the children to live in when they relocated to the UK and how she researched crime rates in various areas. I am satisfied that the appellants (sic) mother took great care in making the decision as to where to live and be located in the UK with the best interests of the appellant at the centre of her decisions in terms of schooling and integration into the UK. I am satisfied that although the appellant’s father sends money to the appellant’s mother that is for supporting the appellant rather than making major decisions in his life. I accept that the appellant’s mother makes all of the decisions and report (sic) back to the appellant’s father. Her evidence is consistent with the letter written by the appellant’s father. I also note that when the appellant made his application he stated that the main purpose of his visit was to settle with his mother. I also note that there was no challenge to the appellant’s mothers (sic) evidence as to her sole responsibility by the home office presenting officer”.
20. Although there was no challenge by the Secretary of State or the Home Office Presenting Officer to the facts within , the judge although setting out the law at  continued at  merely to state
“35. ... what is important is to look at who has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. I am satisfied that the appellant’s mother has continuing control and direction of the appellant’s upbringing including making all the important decisions in the his (sic) life”.
21. In effect, the challenge by the Secretary of State was to the judge’s legal approach to Rule 298(i)(c) and the failure to address relevant and material information in relation to consideration of that, and in particular that the judge failed to have regard to the fact that the appellant lived with both parents in Qatar before his mother chose to come to the UK. In other words the overall approach was legally flawed.
22. At  Upper Tribunal Judge Grubb summarised the approach to be taken in sole responsibility cases as follows
“i. Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.
ii. The term “responsibility” in the immigration rules should not be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility”.
In Qatar the appellant lived with both parents and parental responsibility was shared. The appellant was residing in the UK in a temporary capacity only and further on the appellant’s visa there was an indication that the appellant’s parents were still together, that the mother and father would be travelling together and that it was clear that the appellant’s father was still very much involved in their lives.
23. Buydov  EWCA Civ 1739 confirmed at  that when establishing who had control of a child’s life, the principles included looking at the total pattern of upbringing and including what had been done in the past for the child:
“14. Direction and control of upbringing are ... factors which are part of the total pattern of fact on which the adjudicator had to make his decision”
and at  and  the court in Buydov set out as follows:
“15. Citing and applying that passage in Nmaju v Entry Clearance Officer  INLR 26 Schiemann LJ added this at :
‘While legal responsibility under the appropriate legal system will be a relevant consideration, it will not be a conclusive one.
One must also look at what has actually been done in relation to the child’s upbringing by whom and whether it has been done under the direction of the parent settled here’.
16. Thirdly, in Cenir v Entry clearance Officer  EWCA Civ 572 this court emphasised that the decision whether or not sole responsibility is established is one of fact. Buxton LJ observed at :
‘I would respectfully adopt the observation that the question is a factual one. Each case will depend on its own particular facts. The general guidance is to look at whether what has been done in relation to the upbringing has been done under the direction of the sponsoring settled parent’.
24. The Court of Appeal in Buydov also approved the approach in TD Yemen as follows:
19. Neither party to this appeal before us has challenged any part of the approach chronicled by the AIT in TD, which is of course a decision of a court extremely experienced in this field. The existence of the distinction identified between one- parent and two-parent cases is a valid one, and it is consistent with the scheme of the Rules identified at  above. It is however important to remember that the question remains one of fact in each case, and not to elevate the distinction into a presumption of law. There might be some risk of misreading the distinction as such a presumption, or as importing some independent legal test of exceptionality, if one were to take out of context one part of the helpful summary contained at  of TD, which contains the following:
"(iv) Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility."
The IAT clearly did not mean to impose a legal test. Its review of the cases is predicated on the fundamental proposition that the issue of sole responsibility is one of fact. It was doing no more than identifying where the necessary factual enquiry is likely in most two-parent cases to lead, and as such the proposition is accurate. The application of the factual test to two-parent cases is well illustrated by some of the decisions reviewed in TD. That is clear that there was no specific legal test and that the issue of sole responsibility was one of fact and the necessary factual enquiry was likely in most two parent cases to lead to a conclusion that the proposition in (4) above was accurate.
25. The respondent in the refusal letter specifically did not accept that the appellant’s mother had sole responsibility for him as his parents were still in a subsisting relationship. Concession may be made on the facts but not on the law and the judge, contrary to a legal obligation, omitted from his consideration the necessary factual enquiry as alluded to above and particularly omitted from the factual enquiry the fact that the parents were in fact still together as husband and wife, and that the father had clearly previously had responsibility for the child. As seen from Buydov it is likely in most two parent cases that it would be exceptional that one of them would have sole responsibility if they are both involved. There was no indication that the father had indeed disappeared from the child’s life.
26. The judge was correct at  that when considering sole responsibility it was necessary to look at “who in fact is exercising responsibility for the child”. That is set out in TD (Yemen) at [52(ii)]. Within  the judge on the one hand accepted that the mother was credible and detailed “with some care in her evidence how she went about picking the right area for the children to live in when they relocated to the UK and how she researched crime rates in various areas” and had the “best interests of the appellant at the centre of her decisions in terms of schooling and integration to the UK”. The judge, however, proceeded to dismiss the fact that the appellant’s father sent money to the appellant’s mother for supporting the appellant “rather than making major decisions in his life”, but then found “I accept that the appellant’s mother makes all of the decisions and reports back to the appellant’s father. Her evidence is consistent with the letter written by the appellant’s father”. That was an inconsistent finding. The following statement “I also note that when the appellant made his application he stated that the main purpose of his visit was to settle with his mother” which was correct but this failed to identify as stated in the grounds of appeal that the appellant would be travelling to the UK “with his mother and father for a visit of five months and one day”.
27. As stated in the grounds whilst the father may have returned to Qatar it is clear that the appellant’s father was very much involved in their lives and that was underscored by the fact that the mother reported to the father. Nowhere did the judge in fact apply the correct approach to the fact finding or give adequate reasoning for the finding that the mother had “sole responsibility” in the face of the proposition set out in Buydov that it was “likely in most two parent cases that it would in effect be exceptional that one of them will have sole responsibility”.
28. The starting point is in effect that both parents have responsibility.
29. Not only did the judge omit consideration that the appellant had been living with his father prior to entering the UK, that the appellant’s father gave consent in a letter dated 6th November 2019 for the application for indefinite leave to remain and for the children to permanently live with his wife, he paid minimal attention to the fact the child was living in the UK in a temporary capacity. Additionally, his father had been listed on the visa application and the appellant, although he had stated that the purpose was to come and live in the UK to settle, nonetheless entered on a visit visa and a condition of that visit visa is that the appellant returns to the country of origin.
30. Additionally, the grant of permission focused on the fact that the judge applied paragraph 298(i)(c) on the basis that the appellant’s mother “presently has ‘sole responsibilities’ for the appellant in the UK rather than before his entry to the UK and that the tense in the Rule is ‘has had’ not ‘has’ sole responsibility and the Rule arguably looks at pre-entry circumstances”. The judge made a finding at  that the mother made important decisions whilst the appellant was in Qatar but that was arguably unreasoned, the reasoning being focused on the present situation not the past. The reference to “has had” is in effect a historical consideration.
31. Although it is acknowledged that instructions to immigration officers are not to be treated as rules, the July 2012 Chapter 8 Section FM 3.2 Children – Immigration Directorate Instructions Chapter 8 Children Section FM 3.2 Guidance - General sets out
“4.1. Establishing that a parent has had “sole responsibility”
A parent claiming to have had “sole responsibility” for a child must satisfactorily demonstrate that he has, usually for a substantial period of time, been the chief person exercising parental responsibility. For such an assertion to be accepted, it must be shown that he has had, and still has, the ultimate responsibility for the major decisions relating to the child's upbringing and provides the child with the majority of the financial and emotional support he requires. It must also be shown that he has had and continues to have care and control of the child.
For example: A non British citizen child born to a British citizen and a foreign national living abroad. The couple then separate and the UK national wishes to return to the United Kingdom to live with the child. The UK parent has chief responsibility for the child, and the foreign parent does not object to the child living in the United Kingdom. In such a case the UK parent could be considered to have sole responsibility.
Two foreign nationals living abroad have a child, then separate. One parent comes to the United Kingdom and obtains settlement. The child remains with the parent abroad for several years, then at the age of 13+ wishes to join the parent in the United Kingdom to take advantage of the educational system. There is no reason why the child should not remain with the parent who lives abroad. In this case the parent who lives in the United Kingdom would not be considered to have sole responsibility.
4.3 Where it is not clear which parent has established “sole responsibility”
Cases may arise where even though one parent has taken no share of responsibility, or so small a share that it can effectively be disregarded, the other parent cannot claim to have had “sole responsibility”. This may be where more than the day to day care and control of a child has been transferred to another person due, perhaps, to the sponsoring parent being in this country and not maintaining a close involvement in the child's upbringing etc.
There are a number of factors which should be taken into account when deciding whether, for the purpose of the Rules, a parent has established that he has had the “sole responsibility” for a child to the exclusion of the other parent or those who may have been looking after the child. These may include:
• the period for which the parent in the United Kingdom has been separated from the child;
• what the arrangements were for the care of the child before that parent migrated to this country;
• who has been entrusted with day to day care and control of the child since the sponsoring parent migrated here;
• who provides, and in what proportion, the financial support for the child’s care and upbringing;
• who takes the important decisions about the child’s upbringing, such as where and with whom the child lives, the choice of school, religious practice etc;
• the degree of contact that has been maintained between the child and the parent claiming “sole responsibility”;
• what part in the child's care and upbringing is played by the parent not in the United Kingdom and his relatives”.
32. Even if that construction were not correct, the references I have identified above at paragraph in Buydov at  refer to the ‘overall pattern’ being required to be considered. The judge failed to adopt the correct approach as per TD (Yemen) and Buydov and omitted relevant and material facts to the consideration of the appellant’s mother’s “sole responsibility” . I find that this ground on the approach to ‘sole responsibility’ is made out.
33. Although the refusal decision did not consider the alternative in paragraph 298(i)(c), which was whether the appellant normally lived with his mother, the judge found in the alternative that Rule 298(i)(c) was satisfied because the appellant ‘normally lives’ with his mother. The judge at  set out the following:
“37. In the alternative Rule 298 (i)(c) is satisfied if the appellant normally lives with his mother. The respondent argues that the normal place where the appellant lives is Qatar and therefore he cannot meet that part of the rule as the visit visa was for 6 months and then the appellant would have been expected to go back to Qatar. I have no hesitation in rejecting that submission. It is clear from the appellant’s mothers (sic) enquiry with the UK Visa office by email on 18 March 2109 that the intention is that the appellant will be living with her in the UK and not in Qatar with her husband. This is corroborated by the reason for the visit noted in the visa application of wanting to settle with the appellants mother in the UK. Furthermore the appellant actually lives with his mother in the UK and always has done. The appellant’s father cannot live with him in the UK as he would be breaching Qatari laws if he did. I therefore find in the alternative that the appellant normally lives with his mother”.
34. Clearly the appellant had not always lived in the UK with his mother. That was incorrect.
35. The grant of permission to appeal stated that the judge had arguably failed to have sufficient regard to the fact that the appellant entered the UK as a visitor and previously lived with both parents in Qatar and that whether it was their intention for him to settle in the UK – something that was inconsistent with entry as a visitor, nonetheless arguably he “normally” lives in Qatar. I find that ground is made out. The judge rejected the argument by the respondent that the appellant normally lives in Qatar because the visit visa was six months and then he would be expected to go back to Qatar because the intention as highlighted in the visit visa was that the appellant would be living in the UK with the mother and not in Qatar with her husband. That was clear, according to the judge, from an email to the UK Visa office on 18th March 2019, not 2109 as stated in  and noted in the visa application of wanting to settle with the appellant’s mother in the UK.
36. The overarching framework in which this appellant entered the UK was on the basis of a visit visa. The appellant may now, because of this appeal have been afforded Section 3C leave allowing him to remain in the UK lawfully for the present but this ignores the point made in the decision letter that the appellant had to satisfy the Entry Clearance Officer that he did intend to visit the UK as a visitor and provide evidence of his finances in Qatar as well as his evidence of his residency status and that he intended to remain in the UK for five months only. Although in his application the appellant does, in the answer to “What is the main reason for your visit to the UK?” state “other, I am visiting for another reason” and in answer to “Give details of your main purpose of your visit” state “settlement with my mother”, this was nevertheless an entry clearance for a visit visa. His address is given as in Qatar and both parents were listed as intending to travel with him. He had provided a hotel booking for his trip. The purpose of the application was a temporary visit visa, and the additional notes merely indicate an intent on his visit to explore settlement. The appellant’s parents were well aware of the nature of the application.
37. The email referred to by the judge dated 18th March 2019 specifically stated, “my husband will continue to visit me back and forth in the year but will not be locating until a year later”. Information on switching to a family visa was also included in the bundle but it is clear that the applicant applied for a visit visa and there was no guarantee that he would be able to have his visa extended once here.
38. I find therefore that the judge omitted a relevant consideration from his reasoning when finding that the appellant normally lived in the UK. The fact that the appellant’s parents have chosen to educate him here does not necessarily mean that the child ‘normally’ lives in the UK. Although there is no obligation to consider Section 117B (5) in relation to the weight to be given to private life because the child does have a family life with his mother, it is clear that his status is precarious and, in the UK, always has been. I do not accept in accordance with Mahad that construing the rules sensibly according to the natural and ordinary meaning of the words, that ‘normally lives’ would include someone who only entered the UK on a visit visa and evidently has precarious status in the UK.
39. In relation to paragraph 298 where sole responsibility for a child’s upbringing has not been established, particularly where two parents are clearly involved in the child’s life and the child previously lived with that parent, that as a fact-finding exercise militates against the child “normally” living with one parent and not the other parent.
40. I find a material error of law first because the judge’s approach to the law under paragraph 298 was misguided, and secondly because there were relevant and material facts omitted from the consideration, and thirdly because there was inadequate reasoning given for finding there was sole responsibility and that the child normally lived with the mother alone.
41. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.
No anonymity direction is made.
Signed Helen Rimington Date 3rd August 2022
Upper Tribunal Judge Rimington