Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01583/2015
OA/01588/2015
OA/01589/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 12 October 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

BASEERAHT [A]
ZAINAB [A]
FATIHAT [A]
(anonymity direction NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellants: Mr M Aslam, Counsel, instructed by Ineyab Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

1. These are linked appeals against the decision of Judge of First-tier Tribunal K Swinnerton whose promulgated decision of 07 April 2016 dismissed the Appellants' appeals against the Respondent's refusal to grant them entry clearance on 25 November 2014 under paragraph 297 of the immigration rules (which sets out the requirements for indefinite leave to enter the UK as children of a parent present and settled in the UK).

Background

2. The Appellants, who are nationals of Nigeria and who were all minors at the date of the appealed decisions, applied for entry clearance to join their father, [IO] (the sponsor), on the basis that he had sole responsibility for them. The sponsor and the mother of the Appellants were divorced in November 2004 and the sponsor was awarded custody of the children. The Appellants mother entered into a relationship with a new partner in 2005 but this new partner did not want the Appellants to live with him and their mother and objected to her even meeting her children. The sponsor entered the United Kingdom in late 2008 and the Appellants were left under the care of their uncle in Nigeria, the sponsor's brother.

3. The Respondent refused the applications because it was not clear whether the Appellants' mother still had any involvement in their lives, and because the evidence of telephone call logs did not sufficiently demonstrate that the Appellants and the sponsor had been communicating. The Respondent was not satisfied that the sponsor had sole responsibility for the Appellants or that there would be adequate accommodation in the UK without recourse to public funds. The Respondent was of the view that, as the sponsor left Nigeria in 2008, there would be no further interference with the family life between the Appellants and their sponsor.

The First-tier Tribunal's decision

4. The FTT judge heard evidence from the sponsor, who adopted his witness statement. In his oral evidence the sponsor stated, inter alia, that the mother of the Appellants only saw them once or twice a year. The sponsor stated that the Appellants had been at a new boarding school since February 2016. The sponsor explained that he had only returned to Nigeria once, in 2013, because of the cost. The sponsor claimed that he telephoned the Appellants almost every day. The sponsor confirmed that he lived with his current wife and has a boy aged five and a girl aged seven.

5. The judge noted that the sponsor had been granted custody of the Appellants on his divorce from their mother, and that the mother's affidavit of 9 November 2015 indicated that she visited her children in school during term times and arranged meetings in restaurants or parks during holidays because of her partner's objection to her meeting her children. The mother stated in her affidavit that she was concerned about the welfare of her children. The judge did not accept that the Appellants' mother only saw them once or twice a year since 2004. The judge found that the affidavit of the mother did not support the sponsor's evidence and she concluded that the mother had a closer relationship with her children then was asserted by the sponsor. The judge noted that since 2008 the sponsor's brother had been the guardian of the Appellants and that the day-to-day decision-making had been exercised by the sponsor's brother. The judge made reference to two letters from the Lagos State (Junior) Model College, dated 12 April 2013 and 3 June 2013, which related to the first and third Appellants but not the second Appellant, but did not accept that these letters were sufficient to show that the sponsor exercised sole responsibility in respect of the education of the Appellants. The judge noted that there was no more recent documentation from that particular school and that there was no documentation from the new school at which the Appellants now attended. The judge additionally noted that the first Appellant was, at the date of the judge's decision, aged 18 and an adult and that no documentation had been provided as to whether or not she was continuing with her education.

6. The judge noted the evidence relating to money transfers from the sponsor to his brother and accepted that financial support was provided by the sponsor for the benefit of the Appellants. Having regard to the telephone logs the judge accepted that there has been contact between the sponsor and the Appellants. The judge accepted that the sponsor resides at a flat at [ - ]. In conclusion the judge was not satisfied, on the balance of probabilities, that the sponsor had sole responsibility for the Appellants. She did not accept that the sponsor made all of the important decisions in the lives of the Appellants and did not accept that the evidence supported a finding that the sponsor had continuing control and direction of the upbringing of the Appellants. In so finding the judge reiterated that the Appellants uncle exercised day-to-day decision-making and responsibility for the Appellants and that the mother of the Appellants still played a part in their lives. The judge found that the requirements of paragraph 297 of the immigration rules was not met and that the decision did not breach article 8 ECHR.

The grounds of appeal

7. The grounds contend that the judge failed to properly consider the mother's affidavit dated 19 November 2015 in assessing the issue of sole responsibility. In her affidavit the mother stated that she was initially concerned about the welfare of the Appellants when the sponsor was going to enter the UK in October 2008 but that the sponsor explained to her that the children would be living with their uncle. The mother confirmed that, since separation from the sponsor, he has been solely responsible for the care of the children and it was he who made the decisions in relation to the children. In her affidavit the mother stated that she was unable to provide the emotional, moral, and financial support for her children and that her present partner would not allow her to see the Appellants and that she had to devise secret means to see them without him knowing. The grounds further contend that the judge failed to follow the principles enunciated in TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049, and in particular, that the day to day responsibility for a child's welfare exercised by somebody in the child's home country does not prevent the parent having sole responsibility within the meaning of the immigration rules. The grounds additionally contend that the judge's assessment of the letters from the Lagos State (Junior) Model College was legally inadequate and that no consideration at all had been given to a letter from St Joseph Medical Center, dated 27 August 2014, which suggested that the sponsor was the main contact in relation to any medical issues relating to the Appellants. Permission was granted on these grounds.

Discussion

8. Having heard submissions from both representatives at the error of law hearing I indicated to the parties that I was satisfied that the decision of the FTT was vitiated by a number of material errors of law.

9. The first legal error relates to the failure by the judge to consider the letter from the Appellants' family doctor written on 27 August 2014. In this letter the doctor indicated that he was the family doctor to the sponsor and was also responsible for any health/medical issues concerning the Appellants. The doctor stated that he had been communicating with the sponsor on several occasions and that the sponsor was the main contact on "any medical report/progress needed." The letter goes on to claim that the Appellants need to be close to their father as his absence was leading to them being brought repeatedly to the hospital and that the distance between them and their father placed a big strain on the Appellants. Although the latter assertions were unparticularised and vague the letter was, prima facie, reliable in relation to the earlier assertion regarding the sponsor being the 'main contact'. The judge did not however refer to the letter or undertake any assessment of its contents. This letter was capable of constituting support for the sponsors claimed sole responsibility. By failing to consider this letter the judge failed to take into account a relevant consideration. Such failure amounts to an error of law.

10. At paragraph 83 of the decision the judge refers to the two letters from the Lagos State (Junior) Model College, notes that these letters were written at about the time of the sponsor's visit to Nigeria in 2013, and concludes that the letters were insufficient to show that the sponsor exercised sole responsibility in respect of the education of the Appellants. There is however no consideration by the judge of the content of the letters and no further reasoning is provided by her to support her conclusion. The letter dated 12 April 2013 was addressed to the sponsor at his UK address and invited him to a meeting to discuss his children. The letter refers to 'several conversations' that the school had with the sponsor relating to the welfare and academic situation of the Appellants. The letter expressed concern that the children had not been picked up from their boarding school accommodation on time at the close of school for holidays. The letter refers to the absence of anyone visiting the Appellants during the school designated visiting days. The letter referred to the regular failure of the Appellants' uncle to pick them up at the appropriate time and the impact that these factors had on the Appellants' health and well-being. The letter dated 3 June 2013 was written following a meeting between the sponsor and the school authorities and outlined the agreement that had been reached between the sponsor and the school. These letters were, prima facie, capable of constituting support for the sponsor's claim to have sole responsibility for his children. As such it was incumbent on the judge, in rejecting the letters as being incapable of providing such support, to give adequate reasons. I am not satisfied that the judge has adequately engaged with the content of the letters or given adequate reasons for concluding that the letters do not support the sponsor's claim to have sole responsibility.

11. I am additionally concerned that the judge relied on the absence of any evidence from the Appellants' new boarding school, which they started in February 2016, in concluding that, at the date of the decisions, the sponsor did not have sole responsibility for the Appellants (see paragraph 83). This was an entry clearance appeal in respect of decisions made on 25 November 2014. As such, the judge had to consider the facts as of the date of the decisions and was not entitled to take into account post-decision evidence that did not address the factual matrix in existence at the date of the challenged decisions (see DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038). The judge's concern with post-decision events is also apparent at paragraph 84 where she notes that the first Appellant was 'now' aged 18 and an adult and that no documentation had been provided as to whether or not she was continuing with her education. This suggests that the judge has not considered the appeals on the basis of the facts in existence at the date of the decisions.

12. At paragraph 82 the judge finds that the day to day decision making in respect of the Appellants has been exercised by their uncle. This observation is repeated at paragraph 90 of the decision. Other than a reference at paragraph 57 of the decision, in the context of recording the submissions that were made at the hearing, the judge does not refer to the Tribunal decision in TD. At paragraph 52 of TD the Upper Tribunal provides guidance on the approach to take to assessments of sole responsibility. This guidance includes the following:

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

13. It is insufficiently clear, having holistic regard to the judge's decision, that she was guided by the principles enunciated in TD. The judge appears to have concluded that the day-to-day responsibility exercised by the Appellants uncle was, on its own, sufficient to prevent the sponsor from having sole responsibility within the meaning of the rules. In the absence of any other clear reasoning by the judge I am satisfied that she has erred in law in her legal approach.

14. Finally, at paragraphs 79 and 80 the judge rejects the sponsors claim that the mother of the Appellants only saw them once or twice a year and concludes that the Appellants' mother has a closer relationship with them. In reaching this conclusion the judge relies on paragraph 5 of the mother's affidavit which states that her new partner did not want the Appellants to visit her and that she had to visit them in school during term times or had to arrange meetings with them outside her home. The affidavit does not however state the frequency with which the Appellants' mother would see them. At paragraph 7 of the affidavit the mother states that the sponsor has been solely responsible for the care, welfare, accommodation and decision-making of the children. At paragraph 9 of the affidavit the mother states that her present partner would not allow her to see the children and that she had to devise secret means to see them without him knowing. In the reasoning section of her decision the judge makes no reference to the assertions contained in paragraphs 7 and 9 of the affidavit. The judge appears to rely on certain aspects of the affidavit to support her conclusion that the mother does have responsibility for the important decisions in the children's lives, but does not consider or engage with other aspects of the same affidavit that suggested that she does not have such responsibility. I additionally note that one of the issues raised in the school letter dated 12 April 2013 was the absence of any visits to the Appellants during the school designated visiting days, which would tend to support the sponsors assertion that the mother of the Appellants rarely saw them. It was incumbent on the judge to resolve this conflicting evidence and her failure to do so constitutes an error of law.

15. I have identified a number of legal errors in the above paragraphs. I am satisfied that the cumulative effect of these errors are such as to render the decision unsafe and that the legal errors are therefore material.

16. In light of the material errors identified, and with the acquiescence of both representatives, I find that the most appropriate course of action is to remit the matter back to the First-tier Tribunal for a fresh hearing.

Notice of Decision

The First-tier Tribunal decision does contain material errors of law.

The matter will be remitted to the First-tier Tribunal to be considered a fresh before a judge other than judge of the First-tier Tribunal K Swinnerton.

No anonymity direction is made.

11 October 2016
Signed Date

Upper Tribunal Judge Blum