Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24096/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mrs mary Owusu-Bempah
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Robbie Addaih (acting as a McKenzie friend)
For the Respondent: Mr D Clark (Senior HOPO)

DECISION AND REASONS

1. The Appellant is a female, a citizen of Ghana who was born on 16th August 1972. She appealed to the First-tier Tribunal against the decision of the Respondent taken on 22nd June 2015 under Regulation 15A(4), 15A(7) and 18A of the Immigration (European Economic Area) Regulations 2006. The decision appealed held that there was insufficient evidence to show that her ex-husband, Adwuni Owusu-Bempah, an EEA national, was no longer in the UK and would not be able to care for her children if she was forced to leave the UK, which meant that there was insufficient evidence to demonstrate that her children would be unable to remain in the UK to continue their education if she had to leave this country.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Hawden-Beal in Birmingham on 23rd August 2016, who had referred to a court order from the Family Court made on 13th July giving the Appellant's ex-husband contact once per month with respect of the children. In paragraph 9 of the determination, the judge referred to submissions made by Mr Addaih (the McKenzie friend before the judge) that the Family Court had ordered that the children stay with their mother because she was a Sponsor for their care since the father was not in the UK. She had cared for them since they all came to the UK in 2007. The father had remained behind in Germany. She has been and still is their sole carer and if she is removed their education would be affected.
3. The judge made findings in relation to this matter as follows (at paragraph 14):
"The fact that the Family Court has ordered them to live with her for the time being does not mean that if she had to leave the UK, they could not be cared for by their father or be taken into social care and thus continue with their education in the UK. Regulation 15A(4)(b) requires the child to be unable to continue to be educated in the UK if the person applying for the derivative right of residence was required to leave the UK. The children's education could continue if the Appellant left the UK. She therefore cannot meet the requirements of Regulation 15A(4)."
4. The appeal was dismissed.
5. On 28th November 2016, permission to appeal was granted on the basis that the only issue was whether the Appellant was the primary carer of her four children for the purposes of the Regulations. The judge had found that the Appellant's father was a qualified and exempt person and Regulation 15A(7) was then addressed. The judge held that if the applicant left the United Kingdom the children would all be able to remain in education here. She concluded there is nothing to show the children could not remain with the father, or in local authority care. The Tribunal granting permission held that it is arguable that where there is a Family Court order, as there is in this case, giving the father very limited access, and where it is clear from the Cafcass report, that there has been domestic violence, and where at least one of the children had not even wanted to have monthly meetings with the father, in those circumstances the applicant has shown on balance she is the primary carer, within the meaning of the Regulations.
6. At the hearing before me on 3rd January 2017, Mr Addaih repeated what had been presented before Judge Hawden-Beal emphasising that there were four children, all of whom were with German passports, and all of whom had since 2007 stayed with their mother in this country. It was the father who had instituted divorce proceedings, and he had then sought custody of the children, but the court had granted those rights to the mother of the children, and given the father minimal contact.
7. For his part, Mr Clark accepted that the problem in this matter was that the father had only been granted "indirect contact" by way of cards and letters in the court order, and what required determination was whether this in itself was enough to deprive the mother of having the rights of a primary carer. On the other hand, the court order had retracted any reference to domestic violence, as a claim that was not being pursued and in the Cafcass report the Appellant maintains that there is no physical violence. The father has, in any event, decided to undergo domestic violence counselling, as recognised in the court order.
My Consideration of the Appeal
8. The Appellant can satisfy the definition of a "primary carer" under Regulation 15A(7) because she is the direct relative of the children as their mother and she does not share parental responsibility with the children's father, her ex-husband, who only has "indirect contact", and even that only on the basis of once a month, in circumstances where one of the children does not even want to meet their father. Accordingly, the Appellant has discharged the burden of proof and has met the requirements of Regulation 15A. If the Appellant, who applied for a derivative residence card as the primary carer of the child who is a child of an EEA national being educated in the UK, is required to leave the UK then the child would be unable to continue with education in this country because the children have since 2007 always lived with their mother and have been cared for by her. I have concluded that the determination cannot stand and the appeal should be allowed for the reasons that I have given.
9. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017