Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/04772/2015
OA/04968/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th December 2016
On 4th January 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

AC & HC
(ANONYMITY DIRECTION made)
Appellants
and

The Entry Clearance Officer
Respondent

Representation:
For the Appellants: Mr Ahmed, Counsel instructed on their behalf
For the Respondent: Mr T Melvin, Senior Presenting Officer

DECISION AND REASONS
1. The first and second Appellants are citizens of the Philippines and are sisters.
2. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their 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.
3. The Appellants, with permission appeal the decision of the First-tier Tribunal (Judge Macdonald) who, in a determination promulgated on 21st July 2016 dismissed their appeals against the decision of the Entry Clearance Officer to refuse entry clearance for them to join their mother and Sponsor in the United Kingdom.
4. The history is set out within the determination of the First-tier Tribunal. On 30th December 2014 both Appellants made similar applications to enter the United Kingdom as the minor children of the Sponsor, their mother who is settled in the United Kingdom. Those applications were refused by the Entry Clearance Officer in notices of decision dated 11th February 2015. The Entry Clearance Officer applied paragraph 297 of the Immigration Rules for leave to enter the United Kingdom.
5. The reasons given for refusing their respective applications are in the same format for each of the applicants. The reasons can be summarised as follows. The Entry Clearance Officer was not satisfied in relation to both Appellants that their mother, the Sponsor, had had sole responsibility for their upbringing. At the date of the decision the first Appellant was 17 years and 10 months old and the second Appellant was 15 years and 10 months old. It was noted that the Sponsor had left the Philippines in 2004 to work abroad before travelling to the UK in 2006 and that since that time she had remained permanently overseas. The Entry Clearance Officer went on to consider the telephone interview with the maternal grandmother who it was stated was their legal guardian. The Entry Clearance Officer recorded the grandmother's evidence confirming that the children had lived with her for their entire life and whilst it was acknowledged that the Sponsor was stated to have lived in the same house until the time of her departure, the Entry Clearance Officer considered that it was the grandmother who had been the most consistent caregiver throughout the applicant's lives. Based on the information provided, the Entry Clearance Officer did accept that their father had played no part in their lives since 2003. The Entry Clearance Officer made reference to the mother sponsoring their elder brother to join her in the UK in 2011 shortly before his 18th birthday. It was acknowledged that the application was refused initially but that the decision was successfully appealed. It was considered pertinent that their mother chose not to sponsor either of the two applicants to join her at that time which could be considered unusual for someone who states to have sole responsibility for the applicant's upbringing. The Entry Clearance Officer went on to consider the contents of the interview and was satisfied that she had attended parent/teacher meetings and was the main point of contact for school for emergencies or otherwise. She was said to be in good health and he was satisfied that there were no significant dependence on their mother and no compelling reason for the current care arrangements not to be maintained. The Entry Clearance Officer accepted that their mother provided them with financial support and acknowledged evidence of remittances in 2010 and throughout 2012 to 2014. Whilst it was accepted that she had visited the Philippines, the immigration stamps in the passport only showed evidence of travel in 2008, 2009, and 2011. The Entry Clearance Officer, when considering the evidence did not find that the applicants had provided evidence to show that their mother had played any role in the key decisions in their lives, including education and healthcare.
6. The Entry Clearance Officer also did not find that the accommodation that was available was adequate for four people. The Entry Clearance Officer also was not satisfied that there were any serious and compelling family or other considerations which made their exclusion from the UK undesirable. Thus the applications were refused.
7. The Appellants sought to appeal those decisions and the appeals came before the First-tier Tribunal (Judge Macdonald). In a determination promulgated on 21st July 2016 and after hearing evidence from the Sponsor, he reached the conclusion on the evidence before him that the Sponsor did not have sole responsibility for either applicant and that that lay with their grandmother who had been their consistent carer since they were aged 5 and 7. The judge considered the evidence before him including letters from the school, the judge considered the level of visits and the type of contact that there had been and also medical evidence provided in relation to the grandmother. The judge found that despite the claimed health conditions and the inability to care for both applicants, that the Sponsor had not returned to the Philippines to make any other arrangements and that when interviewed the grandmother had said that she was in good health. Thus he was not satisfied that they could meet paragraph 297(e).
8. The judge went on to consider whether they could satisfy paragraph 297(f) on the basis that there were serious and compelling family or other considerations which made the exclusion of the Appellants undesirable. At paragraphs 93 to 98 the judge was not able to identify any serious and compelling family or other considerations. In this context he took into account the assertion made that the Appellants' grandmother would be unable to care for them but found that there had been no details provided in this regard. He took into account that both Appellants were teenagers, were attending school and were still being cared for by their grandmother and no explanation of why the care provided by her was inadequate had been advanced during the appeal. He found both children were in good health and considered their best interests in the light of their age and circumstances; the first Appellant being 17 years and 10 months at the date of decision and 15 years and 10 months for the second Appellant. He noted and took into account that they had always lived in the Philippines, they last lived with their mother in 2004 and had seen her sporadically since then and they had been educated there. Whilst he found the general starting point is that children are better off living with a parent but in this case when balanced against all the factual considerations, he found that they could not satisfy paragraph 297(f).
9. The Appellant sought permission to appeal the decision and permission was granted on 17th November 2016. Thus the appeal came before the Upper Tribunal to consider whether or not the decision of the First-tier Tribunal Judge had made an error on a point of law.
10. I had the advantage of hearing submissions from each of the parties which I will consider when setting out my conclusions on the issues.
Ground 1
11. Mr Ahmed submitted that the judge erred in law when considering the issue of sole responsibility and that he should have assessed the evidence before him in accordance with the guidance given in the decision of the Tribunal in TD (297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049. He invited the Tribunal to consider the extract from that decision as set out in the grounds at paragraph 6 and submitted that in this case the judge had failed to take account of sub-paragraph (iii) which reads as follows:-
"'Responsibility' for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK."
12. In this respect he submitted that the evidence before the First-tier Tribunal was that the applicants' grandmother provided the day-to-day care of the children but that their mother retained the overall responsibility and that the judge had failed to take this into account, that this was a situation envisaged in TD (Yemen) and that the parent can have sole responsibility whilst they may be separated over many years. In this case, he submitted that if the judge had followed the criteria at (iii) he would not have placed such emphasis on the facts that they had been separated for such a long period and that she had not visited them.
13. He further submitted that there was evidence before the judge of potential change in circumstances due to the grandmother's ill health and that TD (Yemen) took into account sudden changes of responsibility. He submitted that the grandmother who had cared for the children was now no longer able to do that.
14. I have considered with care the submissions made on behalf of the Appellant both in the written grounds and the oral submissions made by Mr Ahmed. Whilst the judge did not expressly refer to the decision of TD (Yemen) in his determination, it is plain, as Mr Melvin submitted that when reading the determination he firmly had in mind those principles when considering the issue of sole responsibility as set out at paragraph 82 and the findings that he went on to make at paragraphs 82 to 91. In the determination he made the following relevant findings; that the Appellants' mother had left her country of origin in 2004 when the Appellants were aged 7 and 5 years respectively. Thereafter they had been brought up by their maternal grandmother on a day-to-day basis and had attended school and at the date of the applications they were 17 years 10 months and 15 years and 10 months. The judge accepted that the Appellants' mother had made remittances to the Philippines for their financial support. Whilst the judge had found that the Appellants' grandmother was the one providing the day-to-day care, he did not fall into the error as submitted by Mr Ahmed by failing to take into account sub-paragraph (iii) in TD (Yemen). That makes it clear that responsibility for a child's upbringing may be undertaken by individuals other than a child's parents and indeed may be shared between different individuals. However that has to be read in conjunction with paragraphs (vi), (vii), (viii) and (ix). Those paragraphs read as follows:-
"(vi) However the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.
(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.
(ix) 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 in the child's life. If not, responsibility is shared and so not 'sole'."
15. The test the judge therefore had to apply was not whether someone else had the day-to-day responsibility (that is in this case the grandmother) but whether the parent (the Sponsor) had continuing control and direction of the children's upbringing and making all the important decisions in their lives. However the judge found on the evidence that the applicants' grandmother had not only been the one who had taken day-to-day responsibility for the applicants' needs but also was the one who had had the control and direction of the children's lives and had made all the important decisions. At paragraph [87] he made reference to the very significant gaps in the Facebook communications. The judge found on the evidence that the Sponsor had had little involvement with the school. He found that there was no evidence that the Sponsor had involved herself with the Appellants' teachers or that she had been involved in mentoring them or being directly involved in either applicant's or Appellant's educational needs. The judge found it significant that the second Appellant's teacher, who had provided a letter about her, had made no reference to the Sponsor (paragraph 88).
16. Whilst the judge had taken into account that the Sponsor has not seen them since 2011 (five years) and had rejected her reasons for not visiting at [89], I am satisfied that the judge did not consider that in isolation from the relevant paragraphs in TD (Yemen) and that this was a factor which he weighed in the balance but for the reasons set out at paragraphs 86 to 89, the applicants had not demonstrated that the Sponsor had had continuing control and direction for their upbringing and that this had lay with the grandmother.
17. Those were findings that were wholly open to the judge to make on the evidence and it has therefore not been demonstrated that the judge made any error of law in his approach to the issue of sole responsibility as the grounds have asserted.
18. The grounds also submit that the judge failed to take into account the potential change of circumstances based on the grandmother's health. The judge was required to consider the circumstances as at the date of the decision and the evidence that had been provided with the application. The evidence as set out at [57] in which the Sponsor stated that she had produced no updating evidence about the grandmother's medical condition because she had said that she was much the same and was "keeping going". The judge's findings are at [91] and he took into account the Sponsor's evidence that the grandmother was not well. The written evidence before him made reference to her having had a stroke in 2012, two years before the applications were made and there was no updating evidence before the judge (see 57). What the judge did have was an interview record which had taken place with the grandmother and the Entry Clearance Officer on 10th February 2015 in which she was expressly asked about her health and she said that she was in good health. In those circumstances it was open to the judge to find that in conjunction with the lack of updating medical evidence, or evidence that went to the circumstances at the date of decision, the grandmother's own evidence that she was in good health and the finding made at [91] that despite any previous illness, the Sponsor had not returned to the Philippines or seen her mother since that illness. Those matters when taken together did not demonstrate any change of circumstances, potential or otherwise. Thus the judge was entitled to find that notwithstanding her illness in 2012 that she had continued to be solely responsible for the children not only for their day-to-day care but that she had been the one making the important decisions in the applicants' lives.
19. The second ground relied on is that the judge failed to properly consider paragraph 297(i)(f) and whether there were any "serious and compelling or other considerations which make exclusion of the children undesirable".
20. Mr Ahmed submits that in this context there was evidence of the grandmother having been unwell and having had dizziness and a stroke and that this was sufficient for the Appellants to fall within the "serious and compelling" circumstances. The grounds cite the decision of Mundeba (Section 55 and paragraph 297(i)(f)) [2013] UKUT 00088 (IAC) at paragraph 36. The grounds also make reference to paragraph 38 which reads as follows:-
"As a starting point the best interests of the child are usually best served by being with both or at least one of the parents."
21. In this context it is submitted in the written grounds that the circumstances relating to the parents and that the physical and emotional factors may be taken into account. It is submitted that the applicants' relationship with their father had broken down and that their mother was the only one who was willing and able to care for them. It also makes reference to the applicants' brother having been granted entry clearance and sole responsibility and that he should not be separated from the applicants.
22. The judge gave consideration to whether the applicants could satisfy paragraph 297(i)(f) and did so by citing and taking into account the decision of Mundeba which is set out at [78]. The decision sets out that whilst the Section 55 duty applies only to children within the UK, the IDIs invite Entry Clearance Officers to consider the guidance when making their decisions. The family considerations require evaluation of the child's welfare, including emotional needs and "other considerations" come into play where there are other aspects of a child's life which are "serious and compelling" for example where an applicant is living in an unacceptable social and economic environment. The decision makes it plain that "the focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and will involve enquiry as to whether, there is evidence of neglect or abuse, there are unmet needs that should be catered for, that there are stable arrangements for the child's physical care. The assessment involves a consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
23. The judge also made reference to other case law dealing with these issues.
24. I am satisfied that the judge did apply the guidance and the principles of the case of Mundeba to the factual circumstances that were before him. At [93] he stated that he could not identify any serious and compelling family or other considerations. He took into account the point now relied on by Mr Ahmed namely the grandmother's ill health, but in the light of the findings made on the evidence, it was open to him to find that there had been no details provided of any inability on her part to provide care for either applicant (see [93]). The judge also took into account the circumstances of the applicants including their age, social background and developmental history and took into account that at the time of the applications they were teenagers aged 17 and 15, were attending school and were being cared for by their grandmother and there had been no explanation as to why the care provided was inadequate. He took into account that the children were in good health. He also considered at [96] the children's best interests in the light of their age and took into account that they had always lived in the Philippines and had last lived with their mother in 2004 and that she had only seen the sporadically since then. He took into account that they had been educated in the country of nationality.
25. Whilst the grounds set out paragraph 38 of Mundeba, that the starting point is that the best interests are usually served by being with both or at least one of their parents, the grounds do not go on to cite the next line which states as follows:-
"Continuity of residence is another factor, change in the place of residence where a child has grown up for a number of years where socially aware is important."
Thus the Tribunal expressly contemplated the possibility that there may well be situations where the best interests of the child are best served by remaining where they are, with other family members. The judge considered this against the background that they had not lived with their mother for twelve years and that they have spent all their formative years with their grandmother in their country of nationality. Thus the judge had made adequate findings for reaching the conclusion on the evidence that they could not meet the test set out in paragraph 297(i)(f). In his submissions, Mr Ahmed did not identify any other serious or compelling circumstances that the judge did not consider. He did however raise the issue of the Appellants' brother who was granted entry clearance some years before the applicants made their applications. He submitted that the judge was aware of the elder sibling being granted entry clearance (see paragraph 15) and that there had been no issue as to sole responsibility for him and that the judge had not considered this.
26. When asked if the Sponsor provided any evidence in this regard including the determination either with the application or before the judge or when the grounds were settled, he was not sure. However after taking instructions, the determination had not been placed before the judge nor had it been made available at any time thereafter, including for the purposes of this application.
27. An error of law is required to be established and whilst it is right the judge was aware that the applicants' brother had been granted entry clearance, their case was not being advanced on the basis that they were in the same position or that their applications should be treated analogously. As Mr Melvin submits that application made on behalf of their sibling was made in 2010, there was a considerable gap of five years, the applicants were of a different gender and different circumstances may have applied as between the siblings. In those circumstances it could not be said that the judge was in error in not considering that as a compelling circumstance as the factual basis has not been established in any way. There was no evidence before the judge in relation to the applicants' sibling. There is still no evidence before this Tribunal to support any argument advanced in this way. Consequently the judge's conclusions upon paragraph 297(i)(f) were open to him and he gave adequate and sustainable reasons for reaching the findings of fact that he did on the evidence that was before him.
28. Whilst the judge did not go on to consider Article 8, Mr Ahmed conceded that if the judge's findings on sole responsibility and paragraph 297(i)(f) were properly open to the judge to make on the evidence, then the applicants could not realistically establish a case on Article 8 grounds. I agree. The judge, in the earlier paragraphs of the determination had dealt with whether there were any circumstances which could be equally relevant under any Article 8 analysis such as whether there were any "compelling circumstances" which included consideration of the best interests of both applicants in the light of their age and their circumstances. Consequently in the light of those findings made as set out and referred to in the previous paragraphs, it has not been established that the judge could have reached any other outcome when considering the same facts on Article 8. Consequently the grounds are not made out and the decision of the First-tier Tribunal shall stand.

Notice of Decision

The decision of the First-tier Tribunal does not demonstrate the making of an error on a point of law and the decision of the First-tier Tribunal shall stand. The appeals are dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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.

Signed Date

Upper Tribunal Judge Reeds