Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04320/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 24 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

MR JAHVAN ZIPPHON LYNDON HOWELL
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:

For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Mr M Adophy, Solicitor's Advocate, Rana & Co Solicitors

DECISION AND REASONS

Background
1. The appellant in this case is the Secretary of State. The respondent is Mr Howell. However for the purposes of this decision I refer to the parties as they were before the First-tier Tribunal where Mr Howell was the appellant. Mr Howell is a citizen of Jamaica born on 8 October 1996. He appeals the decision of the respondent dated 8 January 2015 to refuse him leave to enter under paragraph 297 of the Immigration Rules as the child of Mr Carlton George Howell who, it is not disputed, is present and settled in the UK.
2. In a decision promulgated on 9 August 2016 Judge of the First-tier Tribunal J Bartlett allowed the appellant's appeal under the Immigration Rules.
3. The Secretary of State appeals with permission on the grounds that the Judge of the First-tier Tribunal has made an error of law in her application of TD (Yemen) [2006] UKAIT 00049. Although the judge refers to TD (Yemen) at paragraph 15 it was submitted that there was no specific reference to the ratio of that case which is as follows:
"The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions of the child's life. If not, responsibility is shared and so not 'sole'".
4. The grounds for permission to appeal to the Upper Tribunal submitted that the judge had found at paragraph 18 that there was sole responsibility. However, the paragraph contained a number of negative findings and it was submitted that inadequate reasons had been given for the finding of sole responsibility.
Error of Law
5. Mr Walker on behalf of the Secretary of State rehearsed the grounds for permission but submitted that he could not take those grounds any further. Mr Adophy on behalf of Mr Howell submitted that the decision was not flawed and that the judge gave reasons at paragraph 18 as to why the sponsor has sole responsibility. Mr Adophy argued that the standard of proof was the balance of probabilities and that the judge had made appropriate findings.
6. I am satisfied that the judge reached a decision that was open to her on the evidence before her. The fact that she has made negative findings in relation to the appellant and the sponsor is not fatal to her finding of sole responsibility which is cogently reasoned. Although the judge may not have set out the ratio of TD (Yemen) it is clear from a reading of her decision and reasons as a whole that she had in mind the that the test was whether the parent had continuing control and direction of the child's upbringing.
7. The judge found that the evidence referred to financial contribution from the appellant's father in the UK and that the appellant also provided a letter confirming that his mother had not played a significant part of his life. The judge was satisfied that Mr Howell, the sponsor, had been in touch with the appellant's school and that in addition to paying fees for a remedial college he had arranged and encouraged the appellant to attend. The judge was of the view that the fact that Mr Howell was not able to carry out day-to-day care of the appellant was not what was required and the judge took into consideration that at the time of the application the appellant was only a few days short of his 18th birthday and that children of that age could be expected to have less decisions made by their parents.
8. The judge carefully weighed all the positive and negative factors including that Mr Howell had only visited the appellant once since he had left Jamaica, albeit that he stayed for seven months spending most of his time with the appellant which does not appear to be disputed. The judge also took into consideration that she was not satisfied that the appellant's mother had relinquished interest or care of the appellant. However her finding, which distinguished such interest from exercising responsibility, was one that was open to her on the evidence.
9. As I indicated at the hearing the decision of the First-tier Tribunal Judge does not disclose an error of law and shall stand.
Notice of Decision

The appeal of the Secretary of State is dismissed.

No anonymity direction was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee award was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson