Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00180/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th March 2017
On 23rd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

p c
(ANONYMITY DIRECTION made)
Appellant

and

Entry Clearance Officer - bangkok

Respondent

Representation:

For the Appellant: Mr S Bellara of Counsel instructed by Legend Solicitors
For the Respondent: Miss Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge J Macdonald of the First-tier Tribunal (the FTT) promulgated on 8th August 2016.
2. The Appellant is a female Thai citizen born 6th April 1999 who applied for entry clearance to the United Kingdom as the child of a parent settled in this country. The Appellant wished to join her mother O C to whom I shall refer as the Sponsor.
3. The Sponsor was granted entry clearance to the United Kingdom based upon her marriage to a British citizen and she has indefinite leave to remain.
4. The application was refused on 2nd December 2014 with reference to paragraph 297 of the Immigration Rules. Reasons for refusal are summarised below.
5. The Respondent accepted that the Sponsor was granted indefinite leave to remain on 15th January 2013, and she was granted a visa permitting entry clearance as the spouse of a British citizen in November 2010. The Respondent noted that the Sponsor had left her children in Thailand with their paternal grandmother. It was noted that the Appellant’s brother had recently turned 18 years of age. The Respondent was not satisfied that an accurate picture of the Appellant’s circumstances in Thailand had been presented. The Sponsor had contended that the Appellant’s grandmother is elderly and in ill-health.
6. An interview had been carried out with the Appellant, her brother, grandmother, and her biological father. The Respondent noted that it was claimed that the Appellant’s biological father lived in Bangkok and seldom visited the Appellant who lived in Chiang Mai.
7. The Respondent accepted that the Sponsor had some involvement in the Appellant’s life but that this went little further than demonstrating contact, and it had not been proved that she had sole responsibility for the Appellant’s upbringing.
8. The Respondent contended that the Sponsor had demonstrated no more than a shared responsibility for the Appellant’s upbringing. Although the Sponsor had visited Thailand, and sent money for the Appellant’s benefit, this did not satisfy the sole responsibility test. The Respondent believed that the Appellant had been brought up by her paternal grandmother and other family members. The application was refused with reference to paragraph 297(i)(e).
9. The decision was reviewed by an Entry Clearance Manager who decided that the best interests of the Appellant, as a child, would be for her to remain in Thailand, the country of which she is a citizen. It was not accepted that refusal of entry clearance breached the Appellant’s right to a family life, protected by Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention). The Appellant appealed to the FTT. In summary it was contended that her grandmother suffered from dementia. Her brother planned to go and live at university. The Appellant’s biological father lived a very considerable distance away in Bangkok and took no interest in her.
10. The FTT heard the appeal on 26th July 2016. The issue before the FTT related to paragraph 297(i)(e) and Article 8. The FTT heard evidence from the Sponsor. The FTT found the Sponsor did not have sole responsibility, and found that the Appellant’s biological father had some responsibility for her upbringing. There was no evidence the Appellant’s grandmother had dementia apart from the claim made by the Sponsor, and there was no medical evidence. The Appellant’s brother was found to have some responsibility for the Appellant. It was accepted that the Sponsor sent money to Thailand to support the Appellant and her brother and that she had visited Thailand. As the burden of proof in relation to sole responsibility had not been discharged the appeal was dismissed.
11. The Appellant applied for permission to appeal to the Upper Tribunal. In summary it was contended the FTT had failed to consider the evidence properly, had made findings which were not adequately reasoned, had misread the interview records, and not dealt with the Article 8 claim. It was contended that the FTT had not properly considered the interview records, and had those records been considered properly it would have been clear the biological father had no material involvement with the Appellant and did not provide financial support. The FTT had failed to attach weight to the interview record with the biological father, in which he clearly stated that his mother was unwell. In addition it was clear from the interviewer’s own comments, that the grandmother did not understand the questions that were being asked of her, and this was not caused by any language difficulty. It was contended that the FTT should have attached weight to this, as this supported the Sponsor’s claim that the grandmother was suffering from memory loss and dementia.
12. It was contended that the FTT had applied an incorrect test by making reference to there being no evidence of neglect or abuse of the Appellant. That was not a factor to be considered in relation to sole responsibility.
13. The FTT had not made findings as to what weight, if any, was given to the Appellant’s witness statement, and her interview answers. The FTT had not made any reference as to what weight was attached to the Sponsor’s evidence, which included evidence of visits to the Appellant in Thailand, and the fact that she had gone there to choose a school for her daughter.
14. Permission to appeal was granted by Upper Tribunal Judge Martin who found it arguable that the FTT misread the interview records as to the level of involvement of the Appellant’s biological father and the dementia of the grandmother. It was also arguable that the FTT had erred in speculating that the Appellant’s brother was responsible for her.
15. Following the grant of permission, the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending that the FTT had not erred in law, and the grounds seeking permission to appeal, amounted to a series of disagreements with findings made by the FTT, but did not disclose an error of law.
The Upper Tribunal Hearing
Error of Law
16. Miss Ahmad indicated that she did not rely upon the rule 24 response, and accepted that the FTT decision contained material errors of law as contended in the grounds and should be set aside. I therefore did not need to hear from Mr Bellara in relation to error of law.
17. I found that the FTT decision did contain material errors of law as contended in the grounds seeking permission to appeal, read together with the grant of permission. I set aside the decision of the FTT.
Re-Making the Decision
18. Mr Bellara suggested that the decision could be remade by the Upper Tribunal, based upon the evidence that had been given to the FTT. Both representatives agreed that because the date of refusal pre-dated the changes to appeal rights brought in by the Immigration Act 2014, this appeal should be considered with reference to the appeal rights prior to the Immigration Act 2014.
The Respondent’s Submissions
19. Miss Ahmad submitted that the only issue to be decided was whether paragraph 297(i)(e) was satisfied. I was asked to take into account the evidence that had been given to the FTT, and the guidance in TD Yemen [2006] UKAIT 00049.
The Appellant’s Submissions
20. Mr Bellara agreed that the only issue to be decided related to sole responsibility. It was not necessary for the Upper Tribunal to hear further evidence because the evidence had been given to the FTT but I was asked to note that the Sponsor and her husband had attended the hearing. No reliance was placed upon Article 8.
21. I was asked to attach weight to the evidence given by the Sponsor to the FTT, recorded at paragraphs 26 – 34 of the FTT decision.
22. I was asked to attach significant weight to the interviews carried out by the Respondent’s representative, with the Appellant, her biological father, her grandmother, and the Appellant’s brother.
23. I was asked to accept that there was documentary evidence to support the Sponsor’s claim that she sent money to the Appellant in Thailand, and that she visited the Sponsor in Thailand, and had made arrangements in relation to a choice of school.
24. I was asked to find that a combination of the oral evidence given to the FTT, and the documentary evidence contained within the composite bundle of documents proved that the Sponsor had sole responsibility for the Appellant’s upbringing, and therefore the appeal should be allowed.
25. At the conclusion of oral submissions I reserved my decision.

My Conclusions and Reasons
26. I have taken into account all the evidence, both oral and documentary, that was placed before the FTT. The documentary evidence is contained in a composite bundle, which is not indexed or paginated.
27. I agree with the representatives, in that this appeal pre-dates the changes in appeal rights brought about by the Immigration Act 2014. The issue in this appeal relates to paragraph 297(i)(e) which I set out below;
(i) (e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing;
28. The burden of proof is on the Appellant, and the standard of proof is a balance of probability. If it is proved that the Sponsor has had sole responsibility for the Appellant’s upbringing, the appeal succeeds, if that is not proved, then the appeal fails. I do not consider Article 8 of the 1950 Convention, as Mr Bellara specifically stated that this was not pursued.
29. I have taken into account guidance in TD Yemen and set out below the headnote to that decision;
“’Sole responsibility’ is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child’s upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child’s upbringing, including making all the important decisions in the child’s life. However, where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have ‘sole responsibility’.”
30. With reference to the length of time over which sole responsibility has been exercised, I have taken into account Nmaju v Immigration Appeal Tribunal [2001] INLR 26, CA. The Court of Appeal found that the length of time over which sole responsibility had been exercised was a relevant but not conclusive factor. In that case the claim of a mother who had had sole responsibility for her child for two and a half months was upheld.
31. I find as a fact that the Sponsor and the Appellant’s biological father divorced in 2005. They had two children, the Appellant and her brother, who was born 22nd November 1996. I am satisfied that the Appellant’s brother now attends university.
32. I am satisfied that the evidence indicates that following the divorce in 2005, the Appellant remained living with the Sponsor. The evidence does not indicate that her father played any meaningful role in her upbringing. I find that the Sponsor had sole responsibility for the upbringing of the Appellant between the departure of the Appellant’s father in 2005, and November 2010 when the Sponsor left Thailand to travel to the United Kingdom. I find as a fact that the Sponsor married a British citizen and that she was granted indefinite leave to remain in the United Kingdom on 15th January 2013.
33. I accept that there was a delay before an Entry Clearance application could be made on behalf of the Appellant. This was caused, in part, by the need for the Sponsor and her husband to sell a one bedroom apartment, and to acquire a two bedroom apartment so that adequate accommodation would be available for the Appellant.
34. I am satisfied on a balance of probability, that the Sponsor’s oral evidence, together with documentary evidence, proves that the Sponsor has been providing financial support for the Appellant.
35. I am also satisfied, that frequent contact has been maintained between the Sponsor and Appellant, since the Sponsor left Thailand in 2010. I accept the Sponsor’s oral evidence on this issue, which is supported by documentary evidence to confirm telephone and Skype contact.
36. I also accept that the Sponsor returned to Thailand to visit the Appellant in 2011, 2013, twice in 2014, 2015 and 2016. I accept the Sponsor’s evidence that she was responsible for choosing a school for the Appellant, and I place some weight upon a letter from the Appellant’s school dated 20th June 2016. This confirms the Sponsor has contact with the school, and that when in Thailand the Sponsor visits the school and enquires as to the Appellant’s progress. There is confirmation that the Sponsor visited on 23rd February 2016.
37. I do not find that the Appellant’s father has taken responsibility for her upbringing. I accept that he lives in Bangkok with his new family, and that Bangkok is a very considerable distance away from Chiang Mai. I find that the father’s lack of involvement is evidenced by the Sponsor’s evidence, and the interview records which were submitted before the FTT.
38. I place weight upon the interview records. I find that the Appellant’s father, on his own admission, has abdicated responsibility for the Appellant’s upbringing. I refer in particular to his answers to questions 7, 11, 13 and 14 of the interview that took place on 28th November 2014. The father confirmed that he seldom visits his mother, with whom the Appellant lives. He estimated that he visited only once a year. He indicated that he sometimes telephoned his mother but made no mention of telephoning the Appellant. When asked whether he supported the Appellant financially he replied “no, not really”. He explained that he gave some money to his mother when he visited, which was seldom. The father confirmed that when he last visited the Appellant did not speak to him and he again confirmed that he had seldom been in touch with her, and when he visited her they hardly speak.
39. With reference to the Appellant’s grandmother, I have not been referred to any medical evidence to prove dementia, but I place weight upon the Appellant’s father’s comments that the mother is elderly and he is worried about her and that she cannot really take care of the Appellant. I also place weight upon the interviewer’s comments. The interview took place by telephone on 27th November 2014. The interviewer has commented “this grandmother could not really give me good answer. Most of the time, she just answer yes to my questions although it was not a yes or no questions. I had to repeat questions before I get the below answers.”
40. I am satisfied that there were no language difficulties as the interview was conducted with a Thai interpreter. I find that the interview record indicates that the grandmother did not understand the straightforward questions that were asked of her. This supports the Sponsor’s oral evidence that the grandmother is not capable of making decisions in relation to the Appellant and not capable of looking after her.
41. The Appellant was interviewed by telephone on 27th November 2014. She confirmed that her father seldom visited, and that she did not keep in touch with him, and when he did visit they did not speak.
42. I conclude that the evidence demonstrates that the Appellant’s father has abdicated responsibility for her. I also conclude that the grandmother is not making any important decisions in the Appellant’s life, and I find that she does not have any control or direction over the Appellant’s upbringing. The evidence does not indicate that the Appellant’s brother has taken any responsibility for her upbringing.
43. I am satisfied that it is the Sponsor who has continuing control and direction over the Appellant’s upbringing, and this includes making the important decisions in the Appellant’s life. Therefore the requirements of paragraph 297(i)(e) are satisfied and the appeal is allowed.

Notice of Decision

The decision of the First-tier Tribunal contained an error of law and was set aside.

I substitute a fresh decision. The appeal is allowed.

Anonymity

I make an anonymity direction because the Appellant is a minor.

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings. I make this direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date

Deputy Upper Tribunal Judge M A Hall 15th March 2017

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal I have considered whether to make a fee award. I do not consider it is appropriate. The decision to allow the appeal has been made because the Tribunal has been provided with more evidence that was before the Respondent when entry clearance was refused. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 15th March 2017