Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02569/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

miss tanjira benjalux
Respondent/Claimant

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent/Claimant: Mr M Sowerby, Counsel instructed by Wimal & Co, Solicitors

DECISION AND REASONS

1. The claimant, Miss Benjalux, is a citizen of Thailand born on 3 December 1996. She appeals against the decision of the Secretary of State for the Home Department made on 22 December 2014 refusing to grant her entry clearance for the purposes of settlement in the United Kingdom with her father under paragraph 297 of the Immigration Rules.

2. That appeal came before First-tier Tribunal Judge Lingam on 22 April 2016. Essentially the one live issue in the appeal was whether or not her father, the sponsor, had sole responsibility for her upbringing under paragraph 297(i)(f). It was not in issue that there would be suitable accommodation for her upon arrival in the United Kingdom.

3. The Judge allowed the appeal both under the Immigration Rules and also under Article 8 of the ECHR.

4. The Secretary of State has sought to appeal against that decision on the basis that in terms of assessing "sole responsibility" the Judge fell into error having regard to paragraphs 45 to 46 of TD (Yemen). Permission to appeal was granted and thus the matter comes before me to determine that issue.

5. Mr Melvin, on behalf of the Secretary of State, sought to amend the grounds of challenge to include a challenge to the approach taken by the Judge to Article 8. Notification that such amendment was to be sought was set out a written application for permission dated 3 November 2016.

6. I refused permission to amend such grounds. Such grounds are late and in any event in my view academic. Were I to find an error of law in the approach taken under the Immigration Rules it would of necessity involve the evaluation of all matters and the judgment as a whole would be set aside. If however I upheld the finding of the Judge in relation to the Immigration Rules then to a large extent the approach to Article 8 of the ECHR is substantially irrelevant.

7. The determination is, as I so find, a detailed one in which the evidence both of the sponsor (the claimant's father), and her mother are considered.

8. In general terms her mother and two sisters and herself lived together at her father's house in Thailand. There came a time however when she left that home and went to live with her father's father. On his death she then went to live with an uncle. More recently she has lived in separate accommodation.

9. The Judge heard oral evidence from the sponsor's stepfather and from the sponsor himself. The Judge took notice of the interview which was conducted with the mother.

10. It was noted from that interview in particular, that it was the decision taken by the sponsor that the claimant should leave the family home and live with her grandfather. Seemingly he was lonely and it was also the view of the sponsor that where the grandfather lived was more suitable for the claimant's education. It was also the decision of the sponsor following the death of the grandfather that the claimant should remain in the same area with her paternal uncle. The Judge found that the sponsor took the overriding decisions in the appellant's welfare and interest and continues to exercise his overall parental responsibility in her best interests. He took the decisions relating to her education.

11. Significantly the Judge noted that the claimant's mother appeared to have no role in these decisions, the sponsor reserving to himself the core decision making role on the claimant's education, interests and wellbeing.

12. The Judge considered the role of the mother and that is set out in paragraph 36 of the determination. She is a concerned, caring parent who remains in touch with the claimant although that direct contact is irregular. She is more involved in caring for her other two children and her ailing father. The conclusion of the Judge was that her evidence suggests that, aside of discussing general matters with the claimant, the ultimate decisions affecting the claimant's educational development rest with the sponsor. The Judge found that the contact between the claimant and her mother was more social than otherwise and that overall it was the sponsor who had the overall responsibility for the claimant's upbringing. Thus this led to the finding therefore that he had the sole responsibility as defined in TD (paragraph 297(i)(e): "sole responsibility" (Yemen) [2006] UKAIT 00049. The Judge set out a number of considerations as to what amounted to sole responsibility for the purposes of the Immigration Rules.

13. Mr Melvin relies upon paragraphs 45 to 46 of TD (Yemen) which adopts as the starting point that both parents share responsibility for their child's upbringing:

"In order to conclude that the UK-based parent had 'sole responsibility' for the child, it will be necessary to show that the parent abroad had abdicated any responsibility for the child and was merely acting on the direction of the UK-based parent who was otherwise totally uninvolved in the child's upbringing.

14. It was submitted that on that basis the contact with the mother did not permit the interpretation of sole responsibility for the sponsor. However it is also necessary to consider paragraph 52 of the judgment which set out how a decision maker should approach the question of "sole responsibility".

15. The court stressed that it was a factual matter to be decided on the evidence and was a practical one as to who was in fact exercising responsibility for the child. The Court indicated that if both parents are said not to be involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. That however is merely an indication and not a requirement. The test is emphasised that whether a parent has continuing control and direction of the child's upbringing including making all important decisions in the child's life.

16. It was the finding of the judge, after careful consideration of all the evidence, that the sponsor had that degree of responsibility and that the mother's influence was very irregular and reduced. Indeed it was more social than the responsibility for controlling and direction.

17. Mr Melvin submits that such a finding was not only unlawful but perverse in the context of the evidence that was presented. I do not agree.

18. It was clear that throughout the Judge had in mind the proper approach to sole responsibility and made sustainable findings of fact leading to the conclusion that the sponsor had sole responsibility. I detect no error or illogicality in the reasoning that has been adopted.

19. I therefore do not find there to be an error of law in the finding made that the claimant's appeal succeeds under the Immigration Rules.

20. In those circumstances the appeal by the Secretary of State for the Home Department is dismissed. The decision of Judge Lingam of the First-tier Tribunal shall stand.

No anonymity direction is made.

Signed Date 16 November 2016

Upper Tribunal Judge King TD