The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000914


Heard at Field House
Decision & Reasons Promulgated
on 5 July 2022
on 26 August 2022


Deputy upper Tribunal Judge Chana


(anonymity direction NOT MADE)


For the appellant: Mr Bright Arrey-Mbi solicitors of Watlingtons Solicitors
For the respondent: Mr P Deller, Senior Home Office Presenting Officer


1. This is an appeal against the decision of Judge of the First-tier Tribunal N M Paul (“the judge”) who, in a decision promulgated on 4 August 2021, dismissed the appeal of Rhema Ngoh Aqum (“the appellant”) against a decision of the Entry Clearance Officer (“the respondent”) dated 3 May 2019, refusing his entry clearance application under paragraph 297 of the Immigration Rules (which was considered as a human rights claim).


2. The appellant is a national of Cameroon. He was born on 4 May 2002 in Batibo, which is located in the Northwest Region of Cameroon. On 14 January 2019 he applied for entry clearance to join his aunt, Mrs C A Georgestone (“the sponsor”), who is a British citizen settled in the UK. His application was refused under paragraph 297(1)(f) of the Immigration Rules as the respondent was not satisfied the sponsor’s personal circumstances were as claimed and that there were serious and compelling family or other considerations making his exclusion from the UK undesirable. Nor was the respondent satisfied that the appellant was related to his sponsor as claimed. Nor was the respondent satisfied that the refusal of entry clearance would breach Article 8 ECHR.

3. The appellant appealed this decision to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). His initial appeal was dismissed by Judge of the First-tier Tribunal Lucas on 23 March 2020. This decision was set aside by Upper Tribunal Judge Lindsley in a decision dated 17 November 2020. Judge Lindsley remitted the case back to the First-tier Tribunal for a complete rehearing with no findings preserved.

The decision of the First-tier Tribunal

4. The judge had before him a bundle prepared by the respondent containing, inter-alia, the appellant’s entry clearance application and the Reasons For Refusal Letter. The appellant provided a bundle of documents running to 248 pages which included, inter-alia, a skeleton argument, a witness statement from the sponsor, a statement from the sponsor’s husband (Rev Dr Raymond Arthur Williams Georgestone), an “attestation of facts” concerning the appellant written by Nsoyonge Cosmas Kpufanla (founder and general coordinator of ‘Paralegal Aid Foundation’), an affidavit by Divine Asanji (a Cameroonian barrister, Solicitor and Notary Public), and a statement from Nkwate Fozo (the pastor with whom the appellant has been living since 2015 and who describes himself as the appellant’s “legal guardian”).

5. The appellant’s bundle also contained a copy of his birth certificate which was “drawn up” on 19 September 2017, a ‘certificate of adoption’ certifying a High Court ruling dated 4 April 2018 that the sponsor adopted the appellant, a document of poor quality that purported to be a death certificate relating to the sponsor’s uncle, and a copy of the appellant’s passport. Also contained in the bundle were some media reports and a short executive summary of a report by the Faculty of Law at Oxford University relating to significant violence in respect of the ‘Anglophone crisis’ in the Northwest and Southwest Regions.

6. The judge heard oral evidence from the sponsor. The sponsor stated, inter-alia, that she and her husband had had full responsibility for the appellant’s care and maintenance since he was five years old (in 2007), and that he had been living with the sponsor’s uncle who died in December 2015. She claimed that the appellant had been unable to complete his education since the shutting down of schools in the English-speaking North West region in 2016. The sponsor claimed that the appellant remained in the Batibo region and was currently placed with the pastor who accommodated him under the sponsor’s full responsibility. The sponsor said that she had not been back to Cameroon since 1997. She explained that she had not returned to the Cameroon to secure the safety of the appellant because “the English-speaking areas are too dangerous”, and she explained the delay of nearly 4 years in making the entry clearance application following the death of her uncle by reference to an absence of “safe places”. She claimed that she had sent money when her brother was alive via Western Union or through people travelling to the Cameroon. She confirmed that she had nothing to show the First-tier Tribunal in terms of photographs, school reports, medical documents or any other material relating to ongoing contact and responsibility that she had with the appellant.

7. Having recorded the submissions by both representatives the judge stated at [26], in the section of his decision headed “Conclusions & Reasons”:

“This is a sole responsibility case, and all the usual factors have to be brought into play.”

8. The judge concluded that the evidence fell short of establishing sole responsibility. At [27] the judge referred to “… A complete lack of documentary evidence to substantiate the continuing support and/or communication and connection between the sponsor and the appellant.” There was no material to substantiate the contact between the appellant and the sponsor. The sponsor’s explanation that she could not travel to Cameroon because of the difficulties within the English speaking area was contradicted by the pastor’s statement which confirmed that the appellant had been living with him away from the principal areas where the civil turmoil had taken place. The judge found there was no good reason why the sponsor could not have visited Cameroon if this was a genuine case of close parental involvement. At [28] the judge expressed concern at the “… complete lack of documentation that was provided to substantiate” the adoption certificate. The judge did not find that the “mere production of an adoption certificate by itself” was sufficient to confirm the adoption. In respect of her answers the judge found that the sponsor was “effectively making it up as she went along to satisfy the questions put to her in cross-examination.”

9. Having found that there were no other factors that would point to the appellant’s human rights being breached, and having found that the sole responsibility criteria under paragraph 297 had not been met, the judge dismissed the appeal.

The challenge to the judge’s decision

10. The grounds of appeal are poorly written and difficult to follow. Reference is made in the grounds to the earlier decision of Judge Lucas despite the fact that the appeal was heard by Judge Paul on a de novo basis. The grounds contend that the judge erred in law in finding there was insufficient evidence to prove that the appellant was related to his sponsor in light of the evidence provided. The grounds contain the number of factual assertions including that the appellant lived in a rural area and that it was difficult and dangerous for him to have to travel to Yaounde, the capital of Cameroon. The grounds assert that there was an abundance of evidence of financial support, although there was no further particularisation of this evidence. The grounds assert that the judge failed to consider the human rights aspects of the case and failed to attach weight to the adoption certificate.

11. In his grant of permission to appeal to the Upper Tribunal Upper Tribunal Judge Blundell criticised the grounds of appeal. He nevertheless found it arguable that the judge’s decision represented a legally inadequate resolution of the principal submission that had made before the First-tier Tribunal that there were serious or compelling family or other considerations making the appellant’s exclusion undesirable. The judge’s decision arguably failed to resolve that question and failed to consider the appellant’s best interest. Judge Blundell explained that whilst it might ultimately be found that this error was immaterial in light of the primary findings of fact about the absence of a relationship between the appellant and the sponsor, this could not be gauged in the absence of argument.

12. At the error of law hearing Mr Deller, properly in our view, accepted that the judge erred in law by focusing exclusively on the issue of ‘sole responsibility’ when this was not in issue. The entry clearance application had not been made on the basis that the sponsor was solely responsible for the appellant, not least because the sponsor was not a parent (it being accepted that the purported adoption in Cameroon was not recognised as a legal adoption by the UK authorities). None of the requirements for an adoption that could be recognised by the authorities in this country were met and the judge should have focused his attention on the test in paragraph 297(i)(f).

13. The appellant’s legal representative, Mr Bright Arrey-Mbi, did not demur from the position outlined by Mr Deller.

Discussion on ‘error of law’

14. We are satisfied that the judge’s decision contains a material error of law requiring it to be set aside. It is apparent from the face of the application form, and from the Reasons For Refusal Letter, and from the skeleton argument before the First-tier Tribunal (as well as the decision of Upper Tribunal Judge Lindsley) that the case was advanced on the basis of paragraph 297(i)(f). This reads, in material part:

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:

(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; 

15. The judge did not however engage with this requirement. The judge wrongly stated that “this is a sole responsibility case”. It was not a sole responsibility case. The person the appellant was seeking to join was not a parent. The only applicable provision was paragraph 297(i)(f). Given that the judge failed entirely to engage with the relevant legal test, we find that he committed a legal error by way of either legal misdirection or by failing to consider the relevant test.

16. Whilst we did harbour concerns as to the ultimate materiality of the judge’s legal error, reflecting the observations made by Upper Tribunal Judge Blundell, we are ultimately persuaded that the error was material and that the decision must be set aside.

Re-making the decision

17. We informed the parties that we were prepared to adjourn the hearing to remake the decision to another date to enable the appellant to provide further written evidence and to enable us to hear any further oral evidence. We highlighted the fact that there was no witness statement from the appellant and no further documentary or other evidence as to his current circumstances. Despite these observations Mr Bright Arrey-Mbi declined the offer of an adjournment and invited us to proceed immediately to remake the decision. He informed us that there was no further evidence that could be made available and he invited us to rely on his skeleton argument and the bundle of documents that had been before the First-tier Tribunal. In these circumstances we proceeded to remake the decision of Judge Paul pursuant to s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

18. We invited Mr Bright Arrey-Mbi to make further submissions in respect of remaking the appeal. He relied on his aforementioned skeleton argument and the documents in the appellant’s bundle. Although he did not seek to take us to any particular item of evidence, we have considered all the evidence before us with care.

19. We heard brief submissions from Mr Deller who reminded us of the case law relating to what is considered “serious” and “compelling” and who submitted that the question whether the test was met was a matter for the Upper Tribunal to decide at first instance. There was no reply from Mr Bright Arrey.

Legal framework

20. We have set out the requirements of paragraph 297(i)(f) above.

21. The headnote in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC), reads:

i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child's exclusion undesirable inevitably involves an assessment of what the child's welfare and best interests require.

ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is "an action concerning children...undertaken by…administrative authorities" and so by Article 3 "the best interests of the child shall be a primary consideration".

iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State's IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.

iv) Family considerations require an evaluation of the child's welfare including emotional needs. 'Other considerations' come in to play where there are other aspects of a child's life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child's physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.

v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939 .

22. In TY (Overseas Adoptions – Certificates of Eligibility) Jamaica [2018] UKUT 00197 (IAC), at [22], the Tribunal stated:

“It hardly needs be said that the 'serious and compelling family or other considerations' presents a high threshold for those parents or relatives who seek to meet the requirements of paragraph 297.”

23. We remind ourselves that the standard of proof is the balance of probabilities, and that we must have regard to the best interests of the appellant pursuant to s.55 of the Borders, Citizenship and Immigration Act 2009 (even though he is now 20 years old) as he was a child at the date of his entry clearance application and the respondent decision.

24. We additionally have regard to the factors in s.117B of the 2002 Act when assessing the proportionality of the respondent’s decision refusing entry clearance.

Assessment of the evidence and conclusions

25. The respondent did not accept that the appellant was related to the sponsor. We are prepared to accept that the appellant is the nephew of the sponsor. There is no requirement for DNA evidence to prove a relationship (although such evidence is normally determinative of such a relationship) and we note that the claimed relationship has been consistently made. Whilst the documentary evidence of money remitted by the sponsor to the appellant is of very poor quality it appears to be accepted by the respondent that money transfer receipts were provided for the years covering 2017 to 2019, which would appear to indicate that there was some relationship between the appellant and the sponsor. We additionally take into account the assertion in the letter from Pastor Fozo in respect of the relationship. Whilst there was no opportunity to probe the sponsor’s account in respect of her relationship to the appellant (because Mr Bright Arrey-Mbi wanted to proceed immediately to remake the hearing without any further oral evidence being given) we are satisfied, on the balance of probabilities, that the relationship is as claimed. We are also willing to accept that the sponsor adopted the appellant in April 2018, as detailed in the Certificate of Adoption. Although the sponsor did not provide any other documentary evidence relating to the process by which the Certificate of Adoption was obtained, the respondent has not identified any particular aspect of the document tending to undermine its authenticity. The document is, prima facie, reliable. Although the adoption is not one recognised in the UK, it does however speak to the relationship between the appellant and the sponsor.

26. We are additionally prepared to accept that the appellant’s parents left him when he was five years old (around 2007), and that since that time he has been living with the sponsor’s uncle until this gentleman died in 2015. We are however surprised by the absence of any evidence of money remittals by the sponsor to the appellant after he was abandoned by his parents. In her evidence before the First-tier Tribunal the sponsor maintained that she and her husband provided maintenance funds for the appellant and that they had been responsible for every aspect of his education. There is however no independent evidence in support of these assertions. Whilst there is no requirement for corroborative evidence in this jurisdiction, we may attach weight to the absence of evidence in circumstances where that evidence could reasonably be expected to be provided. The sponsor stated in her oral evidence before the First-tier Tribunal that she sent money for the appellant via Western Union and through people she knew who were travelling to Cameroon. No independent evidence has however been provided in respect of money remittances for the period prior to 2017. Whilst we accept that there is evidence of money being remitted between 2017 and 2019, we do not find there is evidence that the sponsor financially supported the appellant prior to 2017, or that she had any significant involvement in his schooling.

27. We observe that, as the sponsor left Cameroon in 1997 and had never been back (her evidence before the First-tier Tribunal), she has never met the appellant in person. Nor has any evidence been provided to substantiate in any detail the nature and quality of the personal relationship between the appellant and the sponsor. There is, for example, no evidence before us of telephone calls or emails or Internet-based communication or social media interaction or letters between the appellant and the sponsor. Nor is there any statement from the appellant himself. These matters are relevant when determining the appellant’s best interests and in respect of the impact of the respondent’s decision on the relationship between the appellant and the sponsor. Given that the appellant was 17 years old at the date of the decision (and is now over 20 years old), and in the absence of any statement from him, and given that his relationship with the sponsor has always been conducted remotely, we find there is insufficient evidence that the appellant’s emotional needs will be materially adversely affected if he were unable to join the sponsor in the UK.

28. We note that the appellant has lived in Cameroon all his life, and we are prepared to accept that he does not have any other family member in that country. In determining his best interests we take account of his familiarity with Cameroon as the place in which he has grown up and with which he is familiar in terms of the country’s culture and the way of life. We note that the appellant is living with pastor Fozo (no further evidence has been provided to suggest that he no longer lives with the pastor). The statement from pastor Fozo is dated 6 February 2020 and identifies his residence as “Nkolbission Yaounde, Centre Region Cameroon.” We take judicial notice that Yaounde is the capital of Cameroon. The pastor describes himself as the appellant’s “legal guardian” (although we have not been provided with any legal documents confirming that he is, or was, the appellant’s legal guardian) and states that he and the appellant moved to Yaounde because of the troubles in the Batibo region (where they were previously living). The pastor has now started his ministry in Yaounde. In his application form the appellant confirms that he is residing with his “legal guardian” in Yaounde. This was also a point specifically raised in the Reasons For Refusal Letter. The appellant therefore no longer appears to be living in the region of Cameroon identified in the affidavit from Divine Asanji (which has the earlier date of 13 December 2019) and the ‘Attestation of Facts’ written by Nsoyonge Kpufanla (which has the earlier date of 9 December 2019) as being unsettled and prone to violence. This is also inconsistent with the sponsor’s assertion in her statement at paragraph 16. The appellant has not sought to introduce any new evidence concerning the location of his residence in Cameroon. Having considered the aforementioned evidence we find that the appellant is currently living in Yaounde with pastor Fozo and the pastor’s family.

29. We acknowledge the claims made by the sponsor and pastor Fozo that the arrangement concerning the pastor accommodating the appellant was only for a temporary basis. According to pastor Fozo’s statement this was because he could not guarantee the appellant’s safety and because, if the Anglophone crisis became “unbearable”, the pastor may have to flee to another country. We note however that there is little if any background evidence provided to us suggesting there is any significant violence in Yaounde. It has not been suggested that the appellant would lose his accommodation for any reason other than a significant decline in the security situation in the country. Nor has any evidence been provided that the accommodation the appellant shares with the pastor and his family is inappropriate or unsafe or unclean or otherwise hazardous to his health. There is no suggestion of any neglect or abuse of the appellant in his current living arrangements. In her Reasons For Refusal Letter the respondent accepted that the appellant could be adequately maintained in the UK and no issue was raised with the money remitted to the appellant in 2017 to 2019. We find that the sponsor could continue to financially support the appellant as she did in 2017 to 2019.

30. There is no medical evidence that the appellant has any physical or mental health problems, or that he has any particular vulnerabilities (there is, for example, no independent medical evidence supporting the assertion by Divine Asanji that the appellant is undergoing serious trauma and stress). We note the claim that the appellant had to stop his schooling when he lived in Batibo, but there no evidence that he would or has been unable to attend school in the capital Yaounde. In any event, the appellant is now 20 years old. There is little cogent evidence before us that the appellant’s wellbeing and welfare are not being adequately catered for in Cameroon.

31. We have concerns with some of the documentary evidence relied on by the appellant. The ‘Attestation of Facts’ written by Nsoyonge Cosmas Kpufanla (founder and general coordinator of ‘Paralegal Aid Foundation’), which is dated 9 December 2019, does not indicate whether the author has personal knowledge of the appellant’s circumstances or whether the details relating to the appellant, contained at paragraph 10 onwards, were provided to him (and if so, who by whom). The letter does not explain how the author was in a position to determine the best interests of the appellant, as he did at paragraphs 19 and 22. Moreover, much of the information contained in the attestation letter is over 2 ½ years old, and the assertions relating to the risk to the appellant’s safety are uncorroborated and unsourced. We have no details of the standing of the organisation ‘Paralegal Aid Foundation’, and the generalised assertions relating to the security situation on occasion uses emotive language not in keeping with an independent and impartial source. Nor is there sufficient evidence to support the bald assertion at paragraph 23 of the attestation letter that the appellant “is at very high risk of losing his live [sic]” based on attacks by police, soldiers and militia. This is particularly so given the evidence that the appellant is no longer living in the Northwest Region. The consequences of these observations is that we are able to attach only limited weight to the assertions contained in the ‘Attestation of Facts’.

32. The affidavit from Divine Asanji (“the Cameroon lawyer”) asserts that he knows the appellant’s sponsor, and that the sponsor is widely recognised in Cameroon as the appellant’s “mother”, but no explanation is given as to how the Cameroon lawyer knows the sponsor, and there is no independent evidence that the sponsor is “widely recognised” as the person who has been responsible for the appellant. As the appellant’s legal representative wanted us to remake the decision immediately, we did not hear oral evidence from the sponsor (or indeed from the appellant himself, who may have been able to provide evidence via video link). The absence of any opportunity to ask the sponsor about her relationship with the Cameroon lawyer, and therefore to test this evidence, has meant that the basis of the Cameroon lawyer’s knowledge of the relationship between the appellant and his sponsor remains unclear. We are also concerned with the sometimes intemperate language used by the Cameroon lawyer. For example, at paragraph 14 he says that the present situation in Cameroon “… is no less than a genocide”, and at paragraph 14 references are made to La Republique’s “treachery” (suggesting a partisan viewpoint). Whilst we accept that there has been a significant amount of violence in Cameroon since 2016, we have not been provided with any respected NGO or state human rights report suggesting that the situation is akin to ‘genocide’. The consequences of these observations is that we are able to attach only limited weight to the assertions contained in the affidavit.

33. Based on the media reports and the executive summary of a report to the UK Parliament by an independent research team at the Faculty of Law University of Oxford, all contained in the appellant’s bundle of documents, we accept that there has been violence both by the government forces and by secessionists in the Southwest and Northwest Regions of Cameroon, and that members of the general public have been caught in the crossfire. We accept that most schools in those primarily English-speaking regions of Cameroon shut down in December 2016 when an uprising began following a violent crackdown on peaceful protests demonstrating the use of French in classrooms and courts in those regions (although there was no background evidence produced in 2021 and no new evidence has been provided as to whether the schools continue to be shut down since the hearing before the First-tier Tribunal.) We accept that this has escalated into a crisis, that the crackdown on the English-speaking minority is fuelling support for a secessionist movement, that rebel groups are pitted against the army, and that tens of thousands of people have been displaced and many more live in fear. The independent evidence suggests that activists who want to create a new nation cord Ambazonia have been targeted. There is however no indication that the appellant is an activist or would be regarded as an activist, and the appellant is no longer living in the region that was particularly unsettled and violent. We bear this in mind when assessing both the appellant’s best interest and whether there exist serious and compelling family or other considerations which make his exclusion undesirable.

34. For the reasons that are given above we find that the appellant’s best interests are served by his remaining in the country of his birth where he is familiar with its culture and way of life and where he will continue to be financially supported by the sponsor who he has never met in person.

35. We take account of our assessment of the appellant’s best interests when determining whether there are serious and compelling family or other considerations which make his exclusion undesirable. We remind ourselves that the requires in paragraph 297(i)(f) is a high threshold. We have taken into account our assessment of the appellant’s emotional needs, and we have considered his age at the date of his application and the respondent’s decision (17). We have considered the limited evidence before us of the appellant’s social and economic environment, including any risk to his safety and wellbeing through his residence in Yaounde, and the arrangements that exist for his physical care and his other needs. Whilst we acknowledge that the appellant’s accommodation with pastor Fozo was intended to be temporary, we note that the app has been living with the pastor since 2015 and that he was almost of majority age when the decision under appeal was made. We have taken into account the limited evidence before us of any significant emotional needs between the appellant and his sponsor. Having considered the evidence cumulatively and holistically, we find that the appellant has not demonstrated that there are serious and compelling family or other considerations which make his exclusion undesirable.

36. In assessing the appellant’s claim outside the immigration rules and in accordance with Article 8 ECHR as a freestanding right, we take into account the same factors described above. We are prepared to find that family life exists between the appellant and the sponsor, but only just. The nature of the Article 8 ECHR relationship is relatively weak given that the appellant and the sponsor have never met and in the absence of clear evidence of the nature and quality of that relationship.

37. Proceeding on the assumption that the respondent’s decision interferes with that Article 8 ECHR relationship, we do not find that the decision is disproportionate. The appellant does not meet the requirements of the Immigration Rules, a factor relevant to s.117B(1) of the 2002 Act (that the maintenance of effective immigration controls is in the public interest). Whilst we are prepared to accept that the appellant can speak English (although there is no clear evidence before us), and whilst we accept that he will be financially independent, these are neutral factors. Sections 117B(4) to (6) have no relevant application in the context of an entry clearance decision.

38. In assessing whether the respondent’s decision is proportionate under Article 8 ECHR we also take full account of our assessment at [25] to [34] above. We will not repeat that assessment of the factors relating to the circumstances in which the appellant is living and his relationship with his sponsor. We note in particular that the appellant’s relationship with his sponsor can continue in the manner in which it has always been conducted. Having weighed up the competing factors, as considered above, we conclude that the refusal of entry clearance will not constitute a disproportionate interference with Article 8 ECHR.

Notice of Decision

The First-tier Tribunal’s decision did involve the making of an error on a point of law and is set aside.

We remake the decision dismissing the Article 8 ECHR human rights appeal.

D. Blum
Signed Date: 12 July 2022

Upper Tribunal Judge Blum