Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07390/2020
UI-2021-001297

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 4th May 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Miss Shaniel Ashley Martin
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Mr C O Martin, the Sponsor
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant appeals against the decision of First-tier Tribunal Judge Cox (“the judge”), promulgated on 31 October 2021. By that decision, the judge dismissed the Appellant’s appeal against the Respondent’s refusal of her human rights claim. That claim was made through an application for entry clearance to join her father (the Sponsor), a British citizen, pursuant to paragraph 297 of the Immigration Rules (“the Rules”). The Respondent was not satisfied that the Sponsor had “sole responsibility” for the Appellant, or that there were “serious and compelling family or other considerations” which would have made the Appellant’s exclusion from the United Kingdom undesirable.
The decision of the First-tier Tribunal
2. The Appellant was not legally represented before the judge, but the Sponsor, attended on her behalf. Oral evidence was taken. The judge found as a fact that there was family life between the Appellant and the Sponsor. Moving on through the legal framework, he confirmed that ultimately the appeal rested on the question of proportionality and the need to strike a fair balance between the competing public and individual interests involved (see R (Agyarko) v SSHD [2017] UKSC 11).
3. The judge directed himself that an inability to satisfy the relevant Rules would be a significant factor against an individual. He also directed himself to the case of TD (Paragraph 297(i)(e ) Yemen [2006] UKAIT 00049, relating to the question of “sole responsibility” under paragraph 297 of the Rules. Citing a passage from that decision, the judge directed himself that if both parents were involved in the Appellant’s upbringing it would only be exceptionally that one of them could be said to have “sole responsibility”.
4. At paragraph 25 of his decision the judge said the following:
“25. It is to the Sponsor’s credit that he acknowledges that the Appellant’s mother is the Appellant’s primary carer. He also acknowledged that there is nothing exceptional about the Appellant’s circumstances, applying TD (Yemen), the Appellant has not satisfied me that the Sponsor is solely responsible for her. Accordingly, I find that the Appellant does not meet the Immigration Rules.”
5. The judge then went on to conduct a wider Article 8 assessment. He took account of the fact that the Sponsor was a British citizen and that he genuinely wished to care for his daughter in this country. The judge accepted that the Appellant very much wanted to join her father in this country and was “heartbroken” when her human rights claim was refused. At paragraph 30 the judge expressed “some sympathy” for the Appellant and the Sponsor and he expressly stated that he was attaching weight to their wishes. Having said that, he correctly noted that Article 8 does not give an individual the right to choose where they live.
6. The judge ultimately concluded that the balance lay in favour of the Respondent and that the decision under appeal was proportionate and lawful. Accordingly, he dismissed the appeal.
The grounds of appeal
7. The Sponsor drafted grounds of appeal. These confirmed that there was mutual consent between the Appellant’s parents in respect of their daughter’s wish to come and live in the United Kingdom. The grounds point out that there was no issue in terms of maintenance and accommodation. Finally, there was confirmation that both the Sponsor and the Appellant’s mother were involved in the Appellant’s upbringing, making “collective decisions” with regards to her well-being and the important decisions in her life.
8. Permission was granted on all grounds.
The hearing
9. The Sponsor attended and made concise and articulate comments on the judge’s decision. He had been truthful throughout the application process and was a law-abiding citizen. He had not attempted to lie or use undue influence in any respect. He expressed his strong wishes for his daughter to come and live with him in the United Kingdom. In his view, both the original decision by the Respondent and the judge’s decision were unfair.
10. Ms Isherwood submitted that there were no material errors of law. The judge took all relevant matters into account and reached a conclusion that was open to him.
Conclusions
11. Having considered this case with care, I conclude that there are no errors of law in the judge’s decision.
12. As I explained to the Sponsor at the hearing, my job is not to decide the Appellant’s case for myself. I am here to see whether or not the judge made any legal mistakes which might have made a difference to the outcome of the appeal before him.
13. The judge was clearly aware of all the relevant evidence provided by the Appellant and the Sponsor. He directed himself correctly to the legal framework relating to the Rules and Article 8 on a wider basis.
14. In terms of paragraph 297(i)(e ) of the Rules issue, he was right to have noted that if both parents were involved in the upbringing of their child it would only be in exceptional cases that one of them could still be said to have “sole responsibility”. In this case, the Sponsor had quite openly and honestly accepted that the Appellant’s mother was very much involved in her upbringing, as was he. This was clearly a case of shared responsibility. There were no exceptional features in the case. For example, there were no significant problems in terms of living arrangements, or health issues, or other matters which would have made the Appellant’s case particularly strong. That is not a criticism of the Sponsor or the Appellant in any way. It was simply a fact, and the judge was entitled to approach the case on that basis.
15. It was open (in other words, lawful) to the judge to conclude that the Appellant could not meet the relevant Rules. Further, it was open to the judge to place significant weight on this factor.
16. The judge took other matters into account such as the Sponsor’s British citizenship and the wishes of both him and the Appellant for the latter to come to the United Kingdom. There was no dispute that the Appellant could not have been accommodated and maintained if she had come to this country, but these were not significant factors in her favour. The core issue was that the Rules could not be met and Article 8 does not give an individual a choice as to where they wished to live, however genuine and strong that wish might be.
17. In light of the above, the decision of the judge must stand and the Appellant’s appeal to the Upper Tribunal must be dismissed.
18. Like the judge, I have sympathy for the Appellant’s and Sponsor’s perfectly genuine desire to be together in the United Kingdom. I note that the Appellant has been and granted leave to enter the United Kingdom as a visitor in the past. I express a hope that, if she were to apply again, the fact that she complied with the conditions of the last grant of leave would be properly considered.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law and that decision shall stand.
The Appellant’s appeal to the Upper Tribunal is accordingly dismissed.
No anonymity direction is made.

Signed H Norton-Taylor Date: 6 May 2022
Upper Tribunal Judge Norton-Taylor