Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04894/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 5th December 2016
On: 7th December 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Master Sukrit Sukarint
(Anonymity direction not made)
Appellant

And

Entry Clearance Officer, Bangkok
Respondent

For the Appellant: Mr McIndoe, Latitude Law
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Thailand. He is a minor who seeks entry clearance to join his parents in the United Kingdom. It is not in dispute that both of his biological parents are present and settled in the United Kingdom.

2. When the Appellant sought entry clearance he was 15 years old. He said that he was living with his grandparents but wanted to come and live with his mother and father.

3. The ECO considered the application with reference to paragraph 297 of the Immigration Rules. The application was refused on the 3rd February 2015 for two reasons. Firstly, the ECO was not satisfied that the proposed accommodation was adequate. Secondly, the ECO was not satisfied that the Appellant's parent's had had "sole responsibility" for his upbringing, noting that they chose to leave him with his grandparents in Thailand whilst they came to the United Kingdom and worked.

4. The Appellant appealed to the First-tier Tribunal and on the 12th April 2016 the matter came before Judge Pickup. Although the Appellant's parents attended the hearing, he was not legally represented. In a determination dated 12th April 2016 the Tribunal held that the proposed accommodation was adequate. There has been no challenge to that finding. The Tribunal then turned to consider sub-paragraph (i) of paragraph 297. It noted the evidence that the Appellant's parents had continued to have close contact with their son and that they had been involved in the decision-making process about matters such as his education, but found that there was no credible evidence that he could not continue to live with his grandparents. Finding that the parents had not had 'sole responsibility' the appeal was dismissed.

Error of Law

5. Paragraph 297(i) of the Immigration Rules reads as follows:

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as a child of a parent, parents or relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) Is seeking leave to enter or accompany or join a parent, parents or a relative in one of the following circumstances:

(a) Both parents are settled in the United Kingdom; or
(b) Both parents are being admitted on the same occasion for settlement; or
(c) One parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) One parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(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; or
(f) One parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious or compelling family or other considerations which make exclusion undesirable and suitable arrangements have been made for the child's care;

6. As can be seen from the structure of sub-paragraph (i), each of the requirements (a) to (f) are alternatives. An applicant is only required to show that he is seeking to join his parent, parents or other relative in one of the circumstances set out. He was not required to show that he met all of them. In this case the applicant plainly met the requirement at (i)(a). Both of his biological parents are present and settled in the United Kingdom. There was no need to consider 'sole responsibility' or the reasons why the Appellant has been living with his grandparents.

7. That being the only matter left in issue following the Tribunal's resolution of the accommodation question, the appeal must be allowed.

Decisions

8. The decision of the First-tier Tribunal contains a material error of law and the decision is set aside to the limited extent identified above.

9. The decision is remade: the appeal is allowed under the immigration rules.

10. There is no direction for anonymity.

Upper Tribunal Judge Bruce
5th December 2016