Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05430/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st September 2016
On 4th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Ishehaatsari [C]
(ANONYMITY DIRECTION not made)
Appellant
and

Entry Clearance Officer - pretoria
Respondent

Representation:
For the Appellant: Mr M West, Counsel, instructed by Thomas Andrew & Daodu Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Zimbabwe, appealed to the First-tier Tribunal against a decision of the Entry Clearance Officer to refuse her application for entry clearance to join her mother (the Sponsor) in the UK. First-tier Tribunal Judge Lloyd dismissed the appeal. The Appellant appeals against that decision with permission to this Tribunal.
2. The background to this appeal is that the Sponsor left Zimbabwe in 2002 to come to the UK leaving the Appellant in Zimbabwe to be cared for by her grandmother. The Appellant's grandmother died in 2004. The Sponsor went to Zimbabwe sometime after the funeral but says that she was told by her relatives that she was not welcome because she had left to go to the UK. She says that the distant relatives who threatened her also worked for the Zimbabwean security forces and she says that she took their warnings seriously. She says that the Appellant went to live with the Sponsor's friend Mrs Masimba after the death of her grandmother. The Sponsor says that she sent money for the Appellant via third parties because Mrs Masimba's husband was a gambler and would take the money for himself. The Sponsor met a British citizen whom she married in December 2008. She was granted indefinite leave to remain in 2011. The Sponsor says that her husband was not amenable to her bringing the Appellant to stay with them in the UK and it was not until she divorced on 7th October 2013 that she was able to go about making an application for the Appellant to join her in the UK.
3. The Appellant's case is that in 2014 Mrs Masimba said that she was unable to look after the Appellant any longer because her husband no longer supported the arrangement because he believed that it led to the neglect of his own family. She says that a church pastor allowed the Appellant to live with the family. It is claimed that the Appellant attended a boarding school and the Sponsor paid the school fees.
4. In his decision the First-tier Tribunal Judge noted that a number of facts were not in dispute including that the Respondent accepts that the Sponsor left Zimbabwe in 2002 and only returned once, in 2005. The identities and maternal relationship of the Appellant and Sponsor were accepted and it was also noted that it was accepted that the Sponsor has been sending money to Zimbabwe via third parties.
5. The judge noted the documentary evidence before him including emails and electronic messages going back about two years, a few pages of telephone payment cards, a small number of greeting cards bearing very short messages, some school reports and examination grades and letters purporting to be from community elders stating that the Appellant was now staying with them as well as an unsigned letter from the Appellant.
6. The judge considered the documentary evidence and stated at paragraph 21 that he did not find that any of the documentary evidence led him to "a definitive conclusion" by itself. The judge accepted that the Appellant has been remitting money and that there has been some communication between the Appellant and the Sponsor since 2013 but did not accept that it had been daily as claimed and was unable to draw any positive findings from the telephone payment cards because they could not be verified as to how and when they have been used and who they have been used to call. The judge gave little weight to the letters from the elders as he said that they add little and could have easily been manufactured.
7. The judge considered, however, that it was 'the general picture and the gaps in evidence' which he found to be more persuasive than the documentary evidence [21] and went on to deal with those. The judge considered the circumstances of the Sponsor leaving Zimbabwe in 2002 and only returning once in 2005 noting that the Sponsor made no mention of whether she saw the Appellant when she returned in 2005. The judge did not accept the Appellant's claims that she would be of any interest to the authorities in Zimbabwe because these were first raised in the witness statement and he was presented with no other evidence of these events or in regard to any country information that would raise the likelihood of this account being plausible [23]. The judge therefore did not accept that it would have prevented the Appellant and Sponsor having some other form of visits, either meeting in a different part of Zimbabwe or by applying for a visitor's visa for the Appellant to visit her mother in the UK.
8. The judge did not accept that there had been a falling out between the Sponsor and Mrs Masimba. The judge remained dissatisfied by the Sponsor's evidence and explanation in respect of the arrangements for her money transfers and concluded that this 'erodes the Sponsor's contention that there are no other sources of support' [25].
9. The judge also considered that the timing of the Appellant's application, one month before her 18th birthday, was of interest in the context of the fact that the Sponsor had been divorced in 2013, well over a year before this application, and that there had been no explanation for that further effluxion of time [27].
10. The Grounds of Appeal to the Upper Tribunal contend that the judge failed to have in mind the correct test as set out in TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049 and imported into his decision findings that were not relevant to the issue of sole responsibility such as to render his determination fatally flawed. It is contended that the judge lost sight of the test he should apply in ascertaining whether the Sponsor had sole responsibility for the Appellant and has given weight to matters that are irrelevant to that test while appearing to import some form of proportionality test into the relevant Rule.
11. Permission to appeal was granted by First-tier Tribunal Judge Pedro on 16th August 2016, who considered that it was arguable that the judge misdirected himself in failing to apply the correct test regarding sole responsibility.
Error of Law
12. At the hearing before me Mr West submitted that the judge failed to keep in mind the correct test as set out in TD (Yemen) and that he took into account facts not strictly relevant to the test. He submitted that the judge applied too high a test at paragraph 21 where he said that the documentary evidence did not lead him to "a definitive conclusion" in themselves. Mr West submitted that the judge gave no reasons for finding at paragraph 23 that it was implausible that the Sponsor had been warned off claiming her inheritance at her mother's farm.
13. The judge looked at the evidence around the transfer of money but did not accept the explanation that money had not been transferred to Mrs Masimba because of her husband's gambling. Mr West submitted that the judge's questions about who the Sponsor sent money to did not necessarily mean that those people have responsibility for the Appellant nor did that issue preclude the Sponsor from having sole responsibility for the Appellant. He again submitted that the judge had misconstrued the test in this context.
14. Mr West referred to the Appellant's interview in which she corrected herself when referring to the money being sent via her uncle to say the Sponsor's uncle and another distant cousin. He submitted that this shows that there was uncertainty on the part of the Appellant as to who this person was.
15. Mr West submitted that there was compelling evidence from the Appellant's school to which the judge had failed to attach appropriate weight. Mr West submitted that there was no suggestion in the decision that this document is not authentic. He submitted that this document goes directly to the test as it shows that the Sponsor is making the big decisions in the Appellant's life. Mr West relied on a document at page 175 of the Appellant's bundle, a school fees invoice dated 4th December 2014, which he says names the Sponsor as the Appellant's guardian. He submitted that this could only refer to the Appellant's mother and he submitted that the judge failed to properly consider these documents. He submitted that significant weight should have been attached to these documents in considering responsibility for the Appellant's upbringing.
16. On the other hand Mr Kotas submitted that looking at the judge's overall reasons it is clear that he had found that the Sponsor does not have sole responsibility. He submitted that the judge's findings are all part of the assessment on all aspects of the evidence which went to undermine the Sponsor's credibility. He submitted that the judge did note the documentary evidence including the school report and it is not appropriate for the judge to list every piece of evidence. He submitted that at paragraph 26 the judge set out the case put by the Sponsor at the hearing which is that she had spoken to the Appellant every day but it was open to the judge to find that the documentary evidence submitted did not corroborate that. It was open to the judge to make that finding. He submitted that the judge's findings on general credibility are all part of the holistic assessment of the case.
17. Mr Kotas submitted that it was open to the judge to reject the explanation given as to why there had been no visits to the Appellant in over ten years at paragraphs 23 to 24. Mr Kotas submitted that it was open to the judge to reject the evidence in relation to the money transfers. It was clear, he submitted, that the judge was not accepting the domestic circumstances as claimed. He submitted that it was a matter for the judge what weight to give to the evidence before him.
18. It is helpful to set out the guidance set out by the Upper Tribunal in the case of TD (Yemen) where the Tribunal said:
"52. Questions of "sole responsibility" under the immigration rules should be approached 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"."
19. In my view the difficulty with the First-tier Tribunal judge's decision in this case is that ultimately he did not make any clear finding as to who does have responsibility for the Appellant or whether the responsibility is shared between the Sponsor and another person or other people.
20. Mr Kotas submitted that it was not necessary for the judge to find who had responsibility for the Appellant. This may be right in some cases. However, it is difficult to see how the guidance in YD (Yemen) can be properly applied here without deciding who has responsibility for the child. At paragraphs (vii) and (viii) the guidance looks at whether responsibility is shared with others because of the geographical separation between the parent and child pointing out however that this does not prevent the parent having sole responsibility within the meaning of the Rules. Further the guidance states at paragraph (ix) that 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'.
21. It is clear that the judge did not find aspects of the Appellant's account credible. However, in my view, the credibility findings distracted the judge from the documentary evidence and from making findings on the core aspects of the test. For example the judge had doubts as to the nature of the claimed fall out between the Sponsor and Mrs Masimba who had been looking after the Appellant but appeared to accept that it was Mrs Masimba's husband who was no longer supportive of the Appellant continuing to stay with the family [19], [24]. Yet, the judge failed to make a clear finding as to whether the Appellant still lived with Mrs Masimba (regardless as to the reasons why if she did not) and, crucially, whether Mrs Masimba was making any of the important decisions in the Appellant's life.
22. Also, in my view the judge was distracted by the issues as to the arrangements for money transfers. At paragraph 25 the judge sets out his concerns about the Sponsor's account as to why she says she sent money to relatives rather than to Mrs Masimba concluding;
"In addition, the presence of third parties who could be trusted to hold and transfer important sums of money on behalf of the Sponsor, one of whom with an identical surname, also erodes the Sponsor's contention that there are no other sources of support".
23. The issue is not whether there are any sources of support for the Appellant in Zimbabwe but whether the Sponsor or anyone else has 'sole responsibility' for her.
24. Another example of the judge's focus on other issues is at paragraph 20 where he said that the Sponsor had given no evidence "as to why the Appellant could not continue her studies in Zimbabwe with continued financial support from the Sponsor". Again, the question to be determined is not whether the current arrangements could continue but whether the Sponsor has had sole responsibility for the Appellant.
25. The judge referred to 'school reports' at paragraphs 16 and 26 where he set out the other documentary evidence. However the documents referred to by Mr West are not simply school reports. The letter from the school from November 2014 goes to the heart of the issue to be determined in this appeal. The judge has not said why he has rejected this letter or the school fee receipt.
26. Looking at the decision overall, whilst I acknowledge that the judge had a number of significant concerns about the credibility of the Appellant and Sponsor, he failed to properly answer the ultimate question as set out in the guidance.
27. In these circumstances I find that the judge made a material error of law in misdirecting himself by failing to apply the established test for sole responsibility and I set the judge's decision aside. I preserve the judge's findings of fact which were not challenged.
Remaking the decision
28. I have considered all of the evidence before the First-tier Tribunal judge and the unchallenged findings of fact.
29. I note that it is not in dispute that the Sponsor left Zimbabwe in 2002 and only returned once, in 2005. The identities and maternal relationship of the Appellant and Sponsor were accepted by the Respondent and it was accepted that the Sponsor has been sending money to Zimbabwe via third parties. The Respondent and the judge noted that one of those to whom money has been transferred shares the Appellant's family name. It may be that this person is the Appellant's uncle or the uncle of the Sponsor.
30. I also note the judge's summary of his findings at paragraph 29 where he said;
"? the facts are that the Sponsor left in 2002 when her daughter was 5 and seems to have made no serious attempts to see her since. Since 2005 the Appellant has been able to be looked after, there have been people in Zimbabwe who the Sponsor has trusted with the money she sent, she has attended school and appears to have achieved very good grades in her exams. The Sponsor married a man whom she chose (there is no implication that it was an arranged marriage and the Sponsor says that she fell in love) but who was not prepared to entertain family life with his wife's child".
31. The judge therefore accepted that the Sponsor did not seek to have the Appellant join her earlier because her ex-husband was not supportive. The Appellant and Sponsor have been consistent in their evidence that they last saw each other in person in 2005.
32. I accept that there is limited evidence of electronic communication however the emails and electronic messages submitted cover the period from February 2013 to February 2015. I also note that there is reference in the emails to the Sponsor paying school fees and exam fees. I accept that telephone call cards are not verifiable and should be considered in the round along with all of the other evidence. The Sponsor and the Appellant claim to be in touch via skype daily however it is unclear whether evidence of skype calls can be obtained.
33. The First-tier Tribunal Judge did not reach any conclusion as to why the Appellant left the care of Mrs Masimba. However I note that in the application, the grounds of appeal to the First-tier Tribunal the Appellant's interview and since then the Appellant has been consistent in her claim that the relationship between her mother and Mrs Masimba had broken down and that she was no longer living with her. In her interview the Appellant said that the fall out occurred in September 2014. As the evidence on the timing of this breakdown of the relationship has been consistent and is not contrary to the findings made by First-tier Tribunal Judge Lloyd I accept that the Appellant has not lived with Mrs Masimba since September 2014.
34. At the time of her interview in February 2015 the Appellant had been a boarder at Riverton school for four years (Q39). In these circumstances evidence from the school is particularly important as the school has day-to-day responsibility for the Appellant. There has been no challenge to the authenticity of the letter from the school
35. The Appellant's bundle contains a letter dated 4th November 2014 from Riverton Academy which states that the Appellant's next of kin is the Sponsor, who had been the point of contact regarding all aspects of the Appellant's education. It confirmed that the Sponsor paid school fees and provided guidance on subjects and extracurricular activities to the Appellant. It states that the Sponsor's input and contribution has been consistent over the years. There is also a school fees invoice dated 4th December 2014 at page 175 of the Appellant's bundle which names the Sponsor as the Appellant's guardian. I attach very significant weight to these documents. They go to the heart of the Appellant's case. The letter indicates that the Sponsor has continuing control and direction of the Appellant's upbringing including making all the important decisions in her life.
36. Looking at all of the evidence I am satisfied on the balance of probabilities that the Sponsor has had sole responsibility for the Appellant at the time of the decision. I therefore allow the appellant's appeal under the Immigration Rules.
Notice of Decision
The decision of the First-tier Tribunal contained a material error of law and is set aside.
The Appellant's appeal is allowed under the Immigration Rules.
No anonymity direction is made.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award because the letter from Riverton School, which went to the issue at the heart of this appeal, was not before the ECO.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Grimes