Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05466/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 08 March 2017

Before

UPPER TRIBUNAL JUDGE PITT

Between

the Entry Clearance Officer - accra
Appellant
and

omega Ofosu Asamoah
Respondent

Representation:
For the Appellant: Ms Z Ahmad, Senior Home Office Presenting Officer
For the Respondent: Ms Lagunju, instructed by Simon Bethel Solicitors

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge J Bartlett promulgated on 1 August 2016 which allowed the application of Mr Asamoah for a EEA family permit based on his derivative rights as the joint primary carer of a minor EEA national.
2. For the purposes of this decision I will refer to the Entry Clearance Officer as the respondent and to Mr Asamoah as the appellant, reflecting their positions before the First-tier Tribunal.
3. Mr Asamoah was born on 13 November 1971 and is a citizen of Ghana. In 2013 he married Ms Thelma Egwuenu, also a national of Ghana. Ms Egwuenu has a daughter from a previous relationship, Gabrielle, born on 29 November 2003, who is an Irish national. The couple have two other children who were born in 2011 and 2013, step-siblings to Gabrielle.
4. The evidence before the First-tier Tribunal was that the appellant and Ms Egwuenu have been in a relationship since at least 2006. It was also maintained that Gabrielle has never had contact with her biological father and that the appellant has been regarded by her as her father for at least 9 years; see paragraph 11 of Ms Egwuenu’s statement dated 20 July 2016.
5. After the marriage in 2013 the appellant made an application to the entry clearance post for a family permit recognising his derivative right of residence. The provisions for such an application are contained in Regulation 15A of the Immigration (EEA) Regulations 2006 (the EEA Regulations). The relevant sections of Regulation 15A state as follows:
“15A. Derivative right of residence
(1) A person (‘P’) who is not [an exempt person] and who satisfies the criteria in paragraph (2), (3), [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
(2) P satisfies the criteria in this paragraph if –
(a) P is the primary carer of an EEA national (‘the relevant EEA national’); and
(b) the relevant EEA national –
(i) is under the age of 18;
(ii) is residing in the United Kingdom as a self-sufficient person; and
(iii) would be unable to remain in the United Kingdom if P were required to leave.
…
(7) P is to be regarded as a ‘primary carer’ of another person if
(a) P is a direct relative or a legal guardian of that person; and
(b) P –
(i) is the person who has primary responsibility for that person’s care; or
(ii) shares equally the responsibility for that person’s care with one other person who is not an exempt person.
(7A) Where P is to be regarded as a primary carer of another person by virtue of paragraph (7)(b)(ii) the criteria in paragraphs (2)(b)(iii), (4)(b) and (4A)(c) shall be considered on the basis that both P and the person with whom care responsibility is hared would be required to leave the United Kingdom.
(7B) Paragraph (7A) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to P assuming equal care responsibility… .”
6. Mr Asamoah asserted his derivative right of residence under Regulation 15A (7)(b)(ii), maintaining that he was a joint primary carer for Gabrielle together with Ms Egwuenu. It is undisputed that Ms Egwuenu had already been recognised by the Secretary of State for the Home Department as having a derivative right of residence as a primary carer for Gabrielle.
7. The Entry Clearance Officer refused the application on 25 February 2015. The decision maintained that the appellant had not demonstrated that Gabrielle was his stepdaughter. It had also not been shown that he was her primary carer or that he shared her care, or that she was an EEA national exercising treaty rights in the UK. It was also maintained that it had not been shown that Gabrielle was the daughter of Mrs Egwuenu. The Entry Clearance Manager Review dated 9 July 2015 maintained the decision for the same reasons.
8. On appeal, Judge Bartlett accepted that the relationship between the appellant and Ms Egwuenu was genuine. He also accepted that Gabrielle was Mrs Egwuenu’s daughter, a matter that had been settled by DNA tests. He found the appellant and Ms Egwuenu to be entirely credible witnesses. At [12] to [14] he found that the appellant and Ms Egwuenu shared responsibility for the care of Gabrielle. He reached this conclusion on the basis that the appellant had regular contact with Gabrielle and the family in the UK, the evidence of the appellant and Mrs Egwuenu that they make joint decisions about Gabrielle’s care, such as which school she attends, whether she should have some shoes brought for her, whether she can attend sleepovers and so on. There was also sufficient evidence before him to confirm that the appellant provides regular and significant financial contributions to the family in the UK. First-tier Tribunal Judge Bartlett therefore concluded at [16] that the appellant met the requirements of paragraph 15A(7)(a) because he was Gabrielle’s step-father.
9. As above the First-tier Tribunal accepted that the appellant shared care for Gabrielle equally with her mother and that Mrs Egwuenu was not an exempt person and that the appellant therefore met Regulation 15A(2)(a). Judge Bartlett went on to find that the other requirements of Regulation 15A(2) were met as Gabrielle was under the age of 18, was residing in the UK as a self-sufficient person and “would be unable to remain in the United Kingdom if” the appellant were not granted the right to enter the UK as her joint primary carer. That latter finding and the reasons for it are contained in paragraph [17] of the decision. The judge found in the appellant’s favour on this requirement as he accepted the evidence of Ms Egwuenu that she would leave the UK if the appellant was not able to enter. The judge found that her parenting responsibilities and credibility as a witness indicated that she would do so as she could not continue to parent as a single parent any longer. He stated as follows:
“I find it credible that Mrs Egwuenu would not wish to continue life as effectively a single mother of three children whilst working full-time without the day-to-day support of her husband”.
10. Judge Bartlett therefore concluded that the full requirements of paragraph 15A of the EEA Regulations were met and allowed the appeal under those Regulations.
11. The respondent’s first ground was that the judge erred in his conclusion that the appellant could be considered to be a primary carer under Regulation 15A(7). The grounds at paragraphs 6 to 8 argue that as the appellant is abroad his contact is only indirect and that he could not be said to have a “measure of actual physical custody of the child in question and the sharing of day-to-day tasks”. The grounds also state that “it is wholly unrealistic to suggest that a stepfather in Ghana has equal responsibility over these matters with the mother who was living with the child in the UK”.
12. I did not accept that this ground had merit as it appeared to me to amount only to a disagreement with the findings of First-tier Tribunal Judge Bartlett. When reaching his conclusion he assessed the relevant evidence and reached a finding open to him on the basis of that evidence. The respondent’s argument does not suggest that the judge omitted to consider a material piece of evidence and the challenge must therefore show perversity in his conclusion that the appellant shares joint primary care for Gabrielle. Given the materials before him, including the oral evidence he heard from Ms Egwuenu, it is not my view that he can be said to have made an irrational or perverse decision in concluding that the appellant was the equal primary carer for the child. Where that is so the respondent’s first ground of challenge fails and the judge’s finding that the appellant is a joint primary carer, qualifying under Regulation 15A(7) and therefore paragraph 15A(2)(a) stands.
13. The respondent also challenges the finding that Ms Asamoah and Gabrielle would be forced to leave the UK if the appellant’s right of residence were not recognised. The respondent maintained that they had managed without him being granted a family permit for many years so it could not be shown that they would be forced to leave now.
14. The difficulty for the respondent here arises from the particular facts of this case. As above, the First-tier Tribunal found the appellant and Ms Egwuenu to be very credible witnesses and accepted their evidence. Their account was that the appellant had been a joint primary carer for Gabrielle for 9 years or so, that is approximately 2007. He was therefore acting a joint primary carer prior to Ms Egwuenu acquiring her derivative right of residence, stated by the respondent in the grounds to be 2011. She obtained her derivative right of residence after the couple became joint primary carers, therefore. The facts before the First-tier Tribunal were not that the appellant became a primary carer only at the time of the marriage in 2013 as suggested in the grounds but many years before that. The appellant falls to have his circumstances considered under Regulation 15A(7A) therefore and is not precluded from doing so by Regulation 15A(7B) as suggested at paragraphs 10 to 11 of the grounds.
15. Regulation 15A (7A) indicates that the correct assessment where the appellant and Ms Egwuenu are joint primary carers is the impact on Gabrielle if both primary carers were not present in the UK. Here, that would mean that Gabrielle would be unable to remain, Regulation 15A(2)(b)(iii) being met as a result. Judge Bartlett’s approach in [17] does not follow that set down by Regulation 15A(7A) as he does not expressly assess what would happen if both parents were unable to exercise a derivative right of residence in the UK. No material error arises, however, as he reached the same conclusion, that Gabrielle would be unable to remain in the UK.
16. For these reasons, I did not find that the decision of the First-tier Tribunal was in error.

Notice of Decision
17. The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed: Date: 7 March 2017
Upper Tribunal Judge Pitt