Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/07260/2015
OA/07265/2015
OA/07269/2015
VA/02552/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

ENTRY CLEARANCE OFFICER - ACCRA
Appellant
and

Khadija Saidu Kargbo
Mohamed Saidu Kargbo
Abdulai Saidu Kargbo
Salamatu Saidu Kargbo
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr P Nath, Home Office Presenting Officer
For the Respondents: Ms I Mahmud of Counsel, instructed by Fletcher Dervish & Co

DECISION AND REASONS
1. This is the appeal of the Entry Clearance Officer but I will refer to the original appellants, citizens of Sierra Leone, born on 5 August 1998, 22 November 2000, 15 August 2001 and 20 November 1982 as the appellants herein.
2. The fourth-named appellant is the mother of the remaining appellants. The sponsor is the husband of the fourth-named appellant. The children applied for a settlement visa to join the sponsor in the United Kingdom. Their mother, the fourth appellant, applied for a visit visa to accompany the children.
3. The mother’s application was refused on 11 March 2014. It was noted that it was said that she was only going to help her children settle into their new life but the children’s applications had not yet been assessed and the application was premature. The respondent noted that the fourth appellant while claiming to have strong social and family ties in Sierra Leone was only intending to return to Sierra Leone to undertake an English language course and then apply for settlement with her husband in the UK which the Entry Clearance Officer found to be contradictory to the claim that she had such strong ties with Sierra Leone that she was guaranteed to return. The application was refused under paragraph 41 of the Rules on the basis that the respondent was not satisfied as to the appellants’ intention or that she genuinely intended a short visit only to the UK and would leave the UK at the end of her visit.
4. Although the applications of the children were refused on a number of grounds the only issue in respect of them that is pursued by the Entry Clearance Officer is the finding that the sponsor had sole responsibility for the children.
5. The judge heard oral evidence from the sponsor, whose evidence the judge accepted. She considered the guidance set out in TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049.
6. The judge went on to make the following findings:
“31. I accept the sponsor’s evidence that he always took full responsibility for the children’s upbringing and that, after he had to leave Sierra Leone in 2003, he maintained regular contact with his family and his wife had only delegated authority for day to day decisions bringing up the children under his direction. The appellants have submitted evidence of regular remittances from the sponsor (A30-53) and I also accept his evidence that he sent money for their support starting shortly after his arrival in the UK. I note that the respondent was satisfied that the sponsor supported his wife but he gave no reasons for doubting that the sponsor also supported the children.
32. The sponsor explained that his wife also received some money from family and friends, but I do not consider that this is any indication that he was not the sole decision maker in relation to the children’s upbringing.
33. I am satisfied on a balance of probabilities that the appellants have demonstrated that their father had sole responsibility for the children’s upbringing.
34. I have also considered whether there are serious and compelling family reasons for bringing the children to join their father, in case I had reached a different conclusion about sole responsibility.
35. I accept that the sponsor had to leave Sierra Leone for reasons outside his control and came to the UK to claim asylum. I appreciate that he was not recognised as a refugee but was granted indefinite leave to remain under a legacy system. I accept his evidence that he did not consider he could return to Sierra Leone in safety and that was the only reason he was separated from his wife and children for so long.
36. I agree with Mr Nawaz that it is clearly in the best interests of all the children to be reunited permanently with their father. I am satisfied that he maintained regular contact with them and that they have a strong relationship. The two younger children are now aged around 15 and I have no doubt that they need the direct personal guidance of their father, for which telephone calls and social media contact are not a satisfactory substitute.
37. I also agree with Mr Nawaz that the sponsor’s daughter will benefit from his care and protection and that it would be contrary to her best interests if she could not continue living with her mother and brothers.”
7. The judge accordingly found that the appellants satisfied the requirements of paragraph 297(i)(f). The judge went on to allow the appeals of the children under the Immigration Rules.
8. In relation to the fourth appellant she accepted that once the children had settled in the UK with the sponsor she would have no immediate family members in Sierra Leone although she would retain some family ties as her mother, brother and sister-in-law were also living in Freetown. The determination continues as follows:
“52. I listened carefully to the evidence of the sponsor and, as stated above, I find him to be a wholly credible witness. I accept his evidence that he and his wife have never had any intention for her to remain illegally without leave after arriving as a visitor. Their representatives made it clear to the respondent that it was the family’s intention for her to settle the children in the UK and then return to Sierra Leone and apply for a settlement visa once she met the requirements.
53. I agree with Mr Nawaz’s submission that the settlement of the children in the UK will be greatly facilitated if their mother is able to accompany them. Although they plan to remain in the UK without her when she returns to Sierra Leone to obtain a settlement visa, their adjustment will be much easier if she has been able to stay with them for a few months while they become used to their new environment.
54. Applying the five stage test set out by Lord Bingham in Razgar, I am satisfied that the fourth appellant has established family life with the children and also with the sponsor. As explained above, I am satisfied that their long separation was due to circumstances beyond their control and entirely contrary to their wishes. I accept that it was always their intention for the family to be reunited whenever that was possible.”
9. The judge found that the decision represented an interference with the fourth appellant’s right to respect for family life and Article 8 was engaged. Having referred to EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874 and other cases she concluded that separating the children from either parent any longer would be contrary to their best interests. The determination concludes as follows:
“59. As explained above, I have concluded that the children satisfy the requirements of the immigration rules; and the respondent’s decisions were not in accordance with the law. I have accepted the evidence of the sponsor that his wife genuinely intends to make only a short family visit before leaving the UK in order to return to Sierra Leone and seek entry clearance for settlement. The only factor in favour of the respondent’s decision to prevent her from accompanying the children to the UK is effective immigration control, but I am satisfied that he failed to comply with his duty to treat the children’s best interests as a primary concern. There is no evidence of any other ‘strong’ or ‘weighty’ reason in favour of preventing their mother from making a short family visit to the UK.
60. I note that the fourth appellant has now passed her English language test (A56) and therefore it appears that she meets the requirements of Appendix FM, although that is for the respondent to decide. There is no ‘near-miss’ principle, but this factor means there is less cause for concern about any breach of the important public duty to maintain an effective system of immigration control. Having considered the evidence fully, it may well be that he will grant the fourth appellant leave to join her husband permanently but that is outside my jurisdiction.
61. I find that, if there is any separation of the fourth appellant from the rest of the family, it is more likely than not to be for only a short period of time. I am satisfied that the sponsor will be able to make suitable arrangements for the care of the children during their mother’s temporary absence after she has brought them to the UK and stayed for a few months while they settle.
62. For all these reasons, I find that the respondent’s decision to refuse the fourth appellant’s application is a disproportionate interference with the right of the children and their father to respect for their family life. I allow the fourth appellant’s appeal under Article 8 outside the rules.”
10. The Entry Clearance Officer applied for permission to appeal pointing out that the appellants all resided together at the same address in Sierra Leone. The grounds read as follows:
“Ground one: Making a material error of law
3. At [31] the Judge finds that the Sponsor has had sole responsibility for the children since he left Sierra Leone in 2003 ‘his wife had only delegated authority for day to day decisions bringing up the children under his direction.’ At [31-32] the Judge finds that the Sponsor supported the Appellants financially and then finds at [33] that the Sponsor has sole responsibility for the children.
4. It is submitted that financial support alone does not establish sole responsibility, as stated in TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049
‘27. What is apparent from both the judgments is the need to establish ‘responsibility’ for the child’s upbringing in the sense of decision-making, control and obligation towards the child which must lie exclusively with the parent. Financial support, even exclusive financial support, will not necessarily mean that the person providing it has ‘sole responsibility’ for the child. It is a factor but no more than that.’
5. Furthermore, it is submitted that given the Appellants’ mother’s involvement in her life that the Judge has failed to have adequate regard to paragraphs 45-46 of TD (Yemen) which state:
‘To understand the proper approach to the issue of ‘sole responsibility’, we begin with the situation where a child has both parents involved in its life. The starting point must be that both parents share responsibility for their child’s upbringing.
In order to conclude that the UK-based parent had ‘sole responsibility’ for the child, it would be necessary to show that the parent abroad had abdicated any responsibility for the child and was merely acting at the direction of the UK-based parent and was otherwise totally uninvolved in the child’s upbringing.’
6. It is clearly evident that the Appellants’ mother does have some involvement in their lives. There is no evidence or finding that the role of the Sponsor amounts to anything more than financial support. It is submitted that there is no finding that the Appellants’ mother has abdicated responsibility for their upbringing and there is no explanation or reasoning as to why the fourth Appellant has only delegated authority. It is submitted that the fact that she lives with the children and intended to spend three months in the UK to help them to settle in strongly suggests that the fourth Appellant’s role in the children’s lives goes far beyond merely acting at the direction of the Sponsor.
7. There is no clear finding that there are compelling family or other reasons why the child appellants should not be excluded from the UK. [34-35] They have been living in Sierra Leone with their mother since the Sponsor left in 2003, there is no evidence or finding that their circumstances are compelling, or that their best interests are better served by living with their father in the UK, rather than their mother who states that she intends to return to Sierra Leone after her visit. The Judge agrees with the appellants’ representative that the best interests of the children are served by their being reunited with their father in UK, it is unclear to the Respondent why this is the case, when, as stated above, they have been living with their mother in Sierra Leone with their mother. At [37] the Judge states that it would be in the best interests of the Sponsor’s daughter to live in the UK with ‘her mother and brothers’, however the Appellants’ mother has applied only for a visit visa and would therefore not be in the UK on a long term basis.
Ground two: Error of law in respect of Article 8
8. In respect of the fourth Appellant, the Judge has allowed the appeal on human rights grounds. It is submitted that the Respondent’s decision does not interfere with the status quo and therefore the five stage test set out by Lord Bingham in Razgar is not satisfied. The fourth Appellant has enjoyed family life with her children in Sierra Leone, if entry clearance were to be granted for the reasons claimed, this would in fact result in splitting the family because the fourth Appellant claims that she will return to Sierra Leone following her visit of three months, whereas the children intend to settle.
9. It is submitted that Judge has erred in law, such that the decisions should be set aside.”
11. Permission to appeal was granted. Reference was made to Buydov [2012] EWCA Civ 1739, which made it clear that in a two parent case the usual starting point was that both parents had responsibility for the upbringing of a child. It was arguable that the finding that the sponsor’s wife only had delegated authority was not adequately reasoned. The judge’s finding that the sponsor’s wife gave advice on certain matters in paragraph 13 “but the judge did not explain why that input did not amount to joint responsibility”. On the issue of serious and compelling reasons there was no finding that the children’s best interests were better served by living with their father and being separated from their mother, “indeed the judge found it would be contrary to the sponsor’s daughter’s best interests if she could not continue living with her mother”.
12. The judge had reached her decision in respect of the appellant’s wife on the basis that she would be accompanying the children in order for them to settle with their father and if the judge erred in her approach as to whether the appeal of the children should be allowed it was arguable that she had also erred as to the basis on which the appellant’s wife would be visiting the UK as set out in the grounds.
13. Mr Nath relied on the grounds, which, he submitted, were comprehensive. He referred to TD (Yemen). The determination was not adequately reasoned.
14. Ms Mahmud submitted there was no material error of law and the sponsor had been found to be wholly credible. The authority was delegated because of the geographical distance. The children needed the direct personal guidance of the sponsor. Their mother had now got her English language test and there was no reason for her to remain illegally in the UK. Mr Nath submitted in response that the only support given by the sponsor was financial and there was no delegated responsibility. The taking of the English language test did not advance matters. The judge had erred in focusing on financial support.
15. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the determination of the First-tier Judge if it was materially flawed in law.
16. The judge directed herself appropriately by reference to TD (Yemen). She included in her citation from that case, paragraph 52(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.”
17. As was pointed out when permission to appeal was granted the Court of Appeal commented on this particular subparagraph in paragraph 19 of the judgment. It was said that the Tribunal clearly did not mean to impose a legal test:
“Its review of the cases is predicated on the fundamental proposition that the issue of sole responsibility is one of fact. It was doing no more than identifying where the necessary factual enquiry is likely in most two parent cases to lead, and as such the proposition is accurate.”
18. It does appear that the judge approached matters having correctly addressed herself on the legal principles. She accepted the sponsor’s evidence that he had maintained regular contact and had sole responsibility and that his wife had only delegated authority. It is said in the grant of permission that the decision is arguably not properly reasoned. However, the judge records the evidence before her including the sponsor’s evidence as set out in paragraph 13 of her decision as follows:
“He phoned his family three to four times a week. He was also in contact with the children by social media almost every day. His relationship with his children was very strong. He made all the decisions about the children’s upbringing, especially about education, health and religion. His wife gave advice on certain matters. This was an African tradition that men took decisions. He supported the children financially. No-one else had any involvement in the children’s lives or provided any support.”
19. The judge accepted unreservedly the sponsor’s evidence and was entitled to place his evidence in the cultural context to which she makes reference.
20. The judge may have reached a decision that would appear generous and it may be that another judge would have reached a different decision. However, bearing in mind that these are questions of fact and in the absence of any misdirection it was in my view open to her to conclude in an adequately reasoned decision that in the particular circumstances of this case the sponsor had sole responsibility for the children.
21. In relation to the appeal of the mother, the fourth appellant, permission was granted on the basis that if there was an error in approach in relation to the children it was arguable also that the judge had erred in relation to their mother. I do not find that the judge did err in relation to the children. The judge accepted the evidence of the sponsor that the fourth appellant genuinely intended to make only a short family visit before leaving the UK. It was not unreasonable for her to accompany the children in the circumstances of this case. It was open to the judge to make the finding of fact in paragraph 59 of her decision that the fourth appellant genuinely intended to leave after her short visit. Again, this might not have been a decision reached by every First-tier Judge on these facts but it was a decision to which she was entitled to come. Her findings of fact were open to her and perversity is not alleged.
22. The respondent argued in the grounds of appeal that the decision did not interfere with the status quo. However, the judge found that the entry clearance had been wrongly refused in respect of the children. This is why no doubt permission to appeal was granted on a contingent basis. The appeal having been allowed in respect of the children it was open to the judge to find as she did that the refusal of the application of the mother was disproportionate in the particular circumstances.

Notice of Decision
For the reasons I have given, the appeal of the Entry Clearance Officer is dismissed and the decision of the First-tier Judge is confirmed.
Anonymity Direction
The First-tier Judge made no anonymity direction and I make none.

TO THE RESPONDENT
FEE AWARD
The judge made a whole fee award of £140, which is confirmed.

Signed Date 26 April 2017
G Warr, Judge of the Upper Tribunal