Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05156/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 9th January 2017
On 20th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

S T C
(ANONYMITY DIRECTION made)
Appellant

and

entry clearance officer - pretoria

Respondent

Representation:

For the Appellant: Mr Mutebuka, Solicitor of Mutebuka & Co Immigration Law
For the Respondent: Mrs Petterson, HOPO

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Saffer made following a hearing at Bradford on 29th June 2016.
Background
2. The appellant is a citizen of Zimbabwe born on 25 September 1999. She applied to come to the UK as the dependant daughter of T, a British national, but was refused entry clearance on a number of different grounds. The entry clearance officer was not satisfied, inter alia, that the sponsor had shown that he had sole responsibility for her, that she did not have other relatives who were able to care for her and that the sponsor had the ability to maintain her.
3. The judge accepted the evidence that the sponsor had left Zimbabwe in 2002 leaving the appellant in the care of her mother. However he paid her primary school fees and since then, her secondary school fees. There was no other financial provision for her until 2010 when her mother disappeared.
4. Since that date her mother has had nothing to do with S, and she has resided with her uncle, who is in fact a cousin of the sponsor rather than his brother, and another child, G who, by the date of decision was herself an adult.
5. The judge wrote as follows:-
"I accept that in April 2014 (which was after the respondent made her decision) evidence was produced to support the assertion that T was interested in S's schooling and was the main point of contact. That evidence casts light on the circumstances appertaining at the date of decision. It was clear that B was also involved in her schooling as the emergency contact. I note in this regard his letter (10 April 2014 which was sent after the refusal but casts light on the circumstances appertaining at the date of decision) that S was lacking supervision and support from T. I have no reason to doubt this sentiment as if it was true it is hard to see why the letter would have been submitted by the family. It supports the assertion made by T when the application was submitted that B executed his responsibilities as guardian diligently. It also supports the school evidence that T was the main rather than the sole person concerned in her welfare and well-being. I therefore find that in March/April 2014 T did not, in those circumstances, have sole responsibility for her schooling or indeed any other aspect of her life as they were shared at least with B.
In March/April 2014 G had just finished her A levels and had married. That indicates that she was then at least 18. In those circumstances I am satisfied that she was also at that time an adult able to provide care and support for S. G was the recipient of money for S from November 2013 to April 2014. I am satisfied that this was because G was also sharing responsibility for her care. I do not accept what G said about being unable to provide care and support for S as G (according to T) was returning to her family. S and G are first cousins. I do not accept that her family would not also have been willing in March/April 2014 to support S as there was no reason they would not, especially if T began to provide financial support which the documents showed that he did from November 2013. I do not accept that in March/April 2014 Reverend Samambwa or the Church would have allowed S, a 14 year old congregant and worshipper, to be abandoned and without adult support given their involvement with the family and the pastoral care they espouse. They did however not need to give the support she had been getting from B and G. I do not accept that G had moved away in March 2014 as she was still receiving money for S in April 2014."
6. He concluded that the appellant was not living in serious or compelling circumstances which made her exclusion undesirable but accepted that the sponsor was in a position to provide financially for her if she were to be granted entry clearance.
7. The appellant sought permission to appeal in somewhat vague and rambling grounds. Permission to appeal was granted by Judge Easterman on 21st November 2016 who observed that, from the findings quoted in the paragraphs above, it was unclear as to who had overall responsibility for the child.
8. Mrs Petterson submitted that the judge had given reasons for his belief that responsibility for the child was shared with relatives in Zimbabwe.
Consideration of whether the Judge erred in Law
9. In TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049 the Tribunal held that where both parents were involved in a child's upbringing it would be exceptional that one of them would have sole responsibility.
10. However, at paragraphs 49 and 50 the Tribunal said:-
"49. Where one parent has disappeared from the child's life and so relinquished or abdicated his (or her) responsibility for the child, the starting point must be that it is the remaining active parent who has 'sole responsibility' for the child. The fact that the remaining active parent is in the UK makes no difference to this. Of course, the geographical separation of the parent from the child means that the day-to-day care of the child will necessarily be undertaken by others - relatives or friends abroad - who look after the child. Here, the issue under the Immigration Rules is whether the UK-based parent has, in practice, allowed the parental responsibility for the child to be shared with the carer abroad. This is, of course, the question we see most frequently in the case law.
50. The cases, particularly Nmaju and Cenir in the Court of Appeal, make clear that the touchstone of 'sole responsibility' is the continuing control and direction by the parent in the UK in respect of the 'important decisions' about the child's upbringing. The fact that day-to-day decision-making for a child - such as 'getting the child to school safely and on time, or putting the child to bed, or seeing what it has for breakfast, or that it cleans its teeth, or has enough clothing, and so forth' (Ramos, per Dillon LJ at p 151) - rests with the carers abroad is not conclusive of the issue of 'sole responsibility'. However, if the UK-based parent has allowed the carer abroad to make some 'important decisions' in the child's upbringing, then it may readily be said that the responsibility for the child has become 'shared'."
11. The judge did not approach his analysis of whether the relatives in Zimbabwe had day-to-day care of the child or shared responsibility for her through the correct prism.
12. Having accepted that her mother had disappeared, the starting point should have been that the remaining active parent was the one who had sole responsibility for the child. The confusion in the judge's mind is evident from his comment that it was clear that the uncle was involved in her schooling as the emergency contact. It is obvious that he would have to be the emergency contact and the fact that he was has no bearing on whether he had shared responsibility for her. Similarly, the fact that the appellant's cousin was living in the same household, and for a brief period of time, some five months, was the recipient of money for her, is not indicative that she was involved in the important decisions in S's life. If anything it is indicative that the sponsor did not feel able to rely upon his cousin to behave responsibly towards his child.
13. The judge failed to apply relevant caselaw and the decision is set aside.
The Rehearing
14. Mrs Petterson indicated that she had no wish to cross-examine the sponsor and submitted that, while she accepted that the sponsor was financially supporting the appellant, this was insufficient to establish sole responsibility which in her view was shared with the other adults with whom the appellant lived.
15. Mr Mutebuka took me through the evidence from the school and from the appellant and submitted that sole responsibility had been established.
Findings and Conclusions
16. At paragraph 52 of TD the Tribunal set out the approach to questions of sole responsibility under the Immigration Rules and held as follows:-
"i. Who has 'responsibility' for a child's upbringing and whether that responsibility is 'sole' is a factual matter to be decided upon all the evidence.
ii. The term 'responsibility' in the Immigration Rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. '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.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
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'."
17. At page D22 of the respondent's bundle there is a letter from The Reverend Samambwa stating that the sponsor was in constant touch with the church authorities regarding S's spiritual wellbeing, growth and guidance and he remained the only parent known to them. He understood that the mother got married elsewhere and deserted her at her father's residence in 2010.
18. There are a number of letters from Kwekwe High School confirming the payment of their tuition fees and confirming that Mr T is the child's sole parent and the main focal point of contact regarding S's welfare and wellbeing at the school. He makes the effort to communicate by means of telephone during school consultative days, parents' days and randomly thereafter. He has a profound interest in S's academic achievements despite distance. Her uncle is the emergency point of contact and it can be pretty difficult to link him, especially as he is out of the city.
19. There are also a number of other letters confirming that the appellant's mother has no contact with her, together with letters from her uncle B. He said that he had looked after her for a very long time, initially as a temporary arrangement which has overstayed its welcome and he was disappointed because he has not been, as a consequence, free to search for employment. He was supposed to have relocated to South Africa to look for work on a permanent basis and time is running out for him to explore other opportunities. He was a single man and had reached the age when he wanted to settle down and have a stable relationship and could not manage to do so. He was unwilling to continue to look after S.
20. Mrs Petterson did not make any submission in relation to credibility.
21. The evidence from the school establishes that, not only does the appellant's father pay S's fees, but he is their point of contact in relation her progress, and he takes an active interest in her studies.
22. The school make a clear distinction between the relationship which they have with the sponsor and that with her uncle, whom they refer to as the emergency contact and with whom it is difficult to communicate.
23. That evidence is supported by the letter from the church which confirms the sponsor's concern with the appellant's spiritual welfare.
24. It is also confirmed by the letters from B who, is a relatively young man himself, and clearly feels that his initial offer to look after the appellant temporarily is no longer practicable. There is no basis at all upon which to conclude that B has, at all material times, had anything other than day-to-day care of his niece/cousin.
25. Applying the guidance set out in TD, I conclude that B has never been involved in the decision making with respect to S's education, or her religious practice, and he has not exercised any responsibility for her, which has remained solely with her father since her mother disappeared in 2010.
26. Mrs Petterson confirmed that this is the only outstanding issue.
27. Since there has been an extraordinarily lengthy delay in this case it is hoped that entry clearance can be issued without further delay.
Notice of Decision
28. The original judge erred in law. His decision is set aside. It is remade as follows. The appellant's appeal is allowed.

Direction regarding anonymity - rule 13 of the Asylum and Immigration Tribunal (Procedure) Rules 2014

Unless and until a tribunal or court directs otherwise, the appellant has been granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 19 January 2017

Deputy Upper Tribunal Judge Taylor