Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07590/2014
OA/07592/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14th April 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

SANDRA [A]
VICTOR [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARACE OFFICER - LAGOS
Respondent

Representation:
For the Appellant: Mr. N Aghayere; Babs & Co Legal Practitioners
For the Respondent: Mr. C Avery; Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellants against a decision by First-tier Tribunal Judge Bowler promulgated on 1st October 2015. The Judge dismissed the appellants appeals against the respondent's decisions of 15th May 2014 to refuse their applications for leave to enter the UK as the children of a person present and settled in the UK in accordance with paragraph 297 of the Immigration Rules.
2. The appellants are siblings and are both Nigerian nationals. Their father is Mr [DA]. On 12th February 2014, the appellants submitted an application for indefinite leave to enter the UK in accordance with paragraph 297 of the Immigration Rules. Both applications were refused by the respondent for the same reasons. In each case, the respondent was not satisfied that the appellants meet the requirements of paragraphs 297(i)(e) and (f) of the Immigration Rules. That is, their father has had sole responsibility for their upbringing and there are serious and compelling family or other considerations which make exclusion of the appellants undesirable, and suitable arrangements have been made for the appellant's care.
3. The appellant's appealed and the decision was reviewed by an Entry Clearance Manager. The decisions to refuse the applications for leave to enter the UK as the children of a person present and settled in the UK in accordance with paragraph 297 of the Immigration Rules, was maintained for the reasons set out in the Entry Clearance Manager's decision of 26th September 2014.
The decision of First-tier Tribunal Judge Bowler
4. The First-tier Tribunal Judge set out the background to the appeals at paragraphs [1] to [4], of her decision. She records the evidence that the Tribunal received from the sponsor (the appellants' father) at paragraphs [8] to [22] of her decision. The parties submissions are set out at paragraphs [23] and [24] of the decision. The Judge sets out her findings and reasons in respect of the appeal under the Immigration Rules at paragraphs [27] to [50] of her decision. The Judge sets out her findings and reasons in respect of the appeal on Article 8 grounds at paragraphs [51] to [68] of her decision.
5. The Judge found at paragraph [27] of her decision that each of the appellants is under 18. That satisfies the requirement to be met under paragraph 297(ii) of the Immigration Rules.
6. Having heard the evidence of the appellants sponsor, the Judge made an adverse credibility finding. She found his evidence to be inconsistent and evasive in a number of material respects. The Judge turned to address the requirements of paragraphs 297(i)(e) and (f) in turn. Paragraph 297(i)(e) of the Immigration Rules requires the appellants to establish that one of their parents is present and settled in the United Kingdom, and has had sole responsibility for their upbringing. The Judge made the following findings;
a. The appellants' mother has moved to Ghana and has remarried. She does not take any role in the upbringing of the appellants; [30]
b. Mr. [A] made telephone calls of very limited duration to the appellants and or his mother which were insufficient for more than the most basic of contact; [31]
c. The emails between Mr. [A] and his daughter show very limited contact between 6th June 2013 and 29th December 2013 and the emails were produced in order to bolster the applications made in February 2014; [32]
d. Mr. [A] has provided funds for the appellant's maintenance, in particular in the form of school fees, but there is insufficient evidence to find that other payments made to Mr. [A]'s mother, were funds for the benefit of the appellants; [33]
e. Mr. [A] exercised parental responsibility in respect of a medical procedure that his son underwent in July 2013, when he was in Nigeria for a PTA meeting; [37]
f. Mr. [A] is named as an emergency contact for the appellants school, but there is insufficient evidence to find that he is the only emergency contact; [38]
g. Mr. [A] attended annual meetings at the appellants school in 2012 and 2013 but there is little evidence of any further involvement; [38]
h. Mr. [A] signed the application forms for the appellants' baptisms on 15th July 2012. He was exercising parental responsibility at that point; [40]
i. The appellants grandmother looks after herself and the appellants, and can make decisions herself in relation to her own life and that of the appellants'; [42]
7. Having made those findings the Judge states at paragraph [43] of her decision;
"therefore, taking into account the evidence overall, I find that on occasion when in Nigeria Mr [A] has exercised responsibility for the appellants and he has provided funds for their maintenance, in particular in the form of school fees, but there is insufficient evidence of Mr [A]'s involvement in decisions affecting the appellants and or the alleged inability of the appellants grandmother to make decisions, to show that he has sole responsibility for them."
8. Alternatively, paragraph 297(i)(f) of the Immigration Rules requires the appellants to establish that there are serious and compelling family or other considerations which make exclusion of the appellants' undesirable and suitable arrangements have been made for their care. To that end, the Judge made the following findings:
a. The appellants are looked after day to day by their grandmother. There is no evidence that their living conditions have affected their health or development. There is no evidence of neglect or abuse of the appellants; [45]
b. The hospital admissions of the appellants' grandmother were not caused by the burden of looking after the appellants but by her own failure to follow medication and diet advice. There is no evidence that the appellants' welfare was at risk when their grandmother was admitted to hospital. The demands of looking after children of the appellants' ages by a lady who has cardiovascular conditions which are generally well-controlled, osteoarthritis in her knees and diabetes are insufficient to be considered serious and compelling considerations which make the exclusion of the appellants' undesirable. [46]
9. Having made those finding the Judge concluded at paragraph [47] of her decision that there are no serious and compelling family or other considerations which make exclusion of the appellants' undesirable. The appellants could not therefore meet the requirements of paragraph 297 of the Immigration Rules.
10. The Judge then turned to the Article 8 claim. Approaching the matter in accordance with the five stage test set out in Razgar -v- SSHD [2004] UKHL 27, the Judge found at paragraph [56] of her decision that family life exists between the appellants and their father. She found that exclusion of the appellants from the UK is an interference by a public authority with the exercise of the appellants' right to respect for their family life. At paragraph [57], the Judge found that the interference has consequences of such gravity as potentially to engage the operation of Article 8. At paragraphs [58] and [59] the Judge found that such interference is in accordance with the law and is necessary in furtherance of a permitted aim under Article 8. The Judge went on to consider whether exclusion of the appellants is proportionate having regard to the public interest considerations set out in section 117B of the 2002 Act and taking account of the best interests of the children. The Judge concluded at paragraph [68]:
"68. Having weighed up the competing interests I find that the maintenance of effective immigration controls having regard as well to the economic implications for the UK is not outweighed by the elements in support of the appellants. Accordingly I find that the respondent's decision was necessary and proportionate.
The grounds of appeal
11. The appellants contend that in considering whether the appellants' father has had sole responsibility for their upbringing, the Judge failed to properly assess whether the requirements of the Rules are met in accordance with the principles laid down in authorities. The appellants refer in particular to the Upper Tribunal decision in TD (paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049. The appellants contend that the Judge neither referred to the authority nor addressed the issues in line with the guidance set out. The appellants' also contend that the Judge failed to consider the decision of the Court of Appeal in Buydov -v- ECO (Moscow) [2012] EWCA Civ 1739 which confirms that the concept of sole responsibility in paragraph 297(i)(e) requires a broad analysis on a case by case basis. The appellants contend that one can infer from the decision, that the Judge based her decision on there being "shared responsibility" for the appellants' upbringing. The appellants refer to the decision in Sloley -v- ECO (Kingston) [1973] Imm AR 54 in which the Tribunal found that correspondence between the child's mother in the UK, and grandmother still caring for the child in Jamaica, amounts to decision-making when considering whether the mother had sole responsibility. The appellants also refer to the decision in Ramos -v- IAT [1989] Imm AR 148 where a mother claimed sole responsibility for her daughter who was living with her grandmother in the Philippines. The Tribunal found that the carer assisting the child with daily tasks like bathing and getting to school, do not extinguish the sole responsibility of the UK mother. Finally, the appellant contends that the finding by the Judge that the appellants grandmother at the age of 75 would be able to look after herself and the appellants, despite medical evidence confirming incapability's due to her health, is irrational.
12. Permission to appeal was granted by First-tier Tribunal Judge Brunnen on 3rd March 2016. The matter comes before me to consider whether or not the decision of First-tier Tribunal Judge Bowler involved the making of a material error of law, and if so, to remake the decision.
13. At the hearing before me, Mr Aghayere adopts the grounds of appeal and submits that the Judge failed to assess whether the appellants' father has had sole responsibility for their upbringing, in accordance with the guidance set out in TD (paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049. He submits that the test is essentially whether the appellants father has continuing control and direction as to their lives and upbringing. Although not a ground of appeal, he submits that in reaching her decision, the Judge appears to have adopted a higher standard than the balance of probabilities when addressing that question. He submits that the findings made by the Judge establish that the direction and control lies with the appellants father in the UK, and that where the Judge refers to a lack of evidence, the approach adopted by the Judge is perverse. By way of example, he submits that at paragraph [38] of her decision, the Judge found that the appellants father is named as an emergency contact. He submits it is irrational and perverse for the Judge to seek evidence that he is the only emergency contact. Mr. Aghayere accepts that this is a fact sensitive decision but he reminds me that the Judge appears to have accepted most of the evidence advanced on behalf of the appellants as to the role their father plays in their lives. He submits that the Judge was required to take a holistic approach to the evidence but failed to do so.
14. In reply, Mr Avery relied upon the Rule 24 response dated 14th March 2016, filed by the respondent. The respondent opposes the appeal and submits that the Judge directed herself appropriately and made findings that cannot be impugned. Mr Avery submits that the grounds relied upon by the appellants are nothing more than a disagreement with the findings made by the Judge that were open to her. He submits that the Judge properly considered all of the evidence before her, and a careful reading of the decision shows that the Judge carried out a careful analysis of the facts and evidence, before coming to a reasoned conclusion.
Discussion
15. Paragraph 297(i)(e) of the Immigration Rules requires the appellants to establish that one of their parents is present and settled in the United Kingdom, and has had sole responsibility for their upbringing. The First-tier Tribunal Judge found at paragraph [30] of her decision that the appellants' mother has moved to Ghana and has remarried. The Judge found that she does not take any role in the upbringing of the appellants. The appellants contend that their father, who now lives in the UK has had sole responsibility for their upbringing, notwithstanding that they are cared for day to day in Nigeria, by their grandmother.
16. In TD (paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049, the Upper Tribunal held that the issue of "sole responsibility" for a child within the meaning of paragraph 297 of the Immigration Rules is a question of fact to be determined in each case, having regard to who exercised actual responsibility for the child, and was not a theoretical or legal obligation. The appellant in that case was a citizen of Yemen aged 17. He appealed against the rejection of his application for entry clearance to the UK to settle with his father, who had lived in the UK since 1976. In his application, the appellant, who had lived with his mother in Yemen since birth, claimed that his father had "sole responsibility" for him and his two brothers. Although the appellant had lived separately from his father all his life, his father had provided all financial support for the family and had had weekly telephone contact. His father had made personal visits to Yemen only once every three or four years. The Immigration Judge concluded that responsibility for the appellant was shared between his father and mother and the requirement in para.297(i)(e) was not met. On appeal, the Upper Tribunal held "Sole responsibility" is a matter of fact to be decided on all the evidence in each case. "Responsibility" for a child is a practical obligation, having regard to who actually exercised responsibility. That could be someone other than a child's parents and it could be shared between individuals, particularly where the child remained in his home country while the only parent involved in his life, resided in the UK. If both parents were involved in the child's upbringing, it was only in exceptional circumstances that one of them would have sole responsibility. The Tribunal held that even if there was only one parent involved in the child's upbringing, that parent may not have sole responsibility. Although a parent may share day-to-day responsibility for a child's welfare with others because of geographical separation, that does not prevent the parent from having sole responsibility within the meaning of the Rules. The test of "sole responsibility" is whether that parent has continuing control and direction of the child's upbringing and made all the important decisions in his life; Ramos -v- IAT [1989] Imm AR 148 In TD, the First-tier Tribunal Judge had taken account of all the relevant issues, including the extent of physical contact between the appellant and his father, the frequency of telephone contact, the father's financial contribution to the family and the fact that the father made all the significant decisions. There was no suggestion that the appellant's mother had ceased to act as carer. On that factual basis, the Upper Tribunal held that the Judge could not properly have come to any other conclusion, than that responsibility was shared.
17. I accept that the test here is whether the appellants' father has continuing control and direction over the appellants' upbringing, including all of the important decisions in their lives. It is plain that that can be so, even when as here, there is geographical distance between the appellants and their father. Mr. Aghayere accepts, rightly in my judgement, that whether the test is met is a factual matter to be decided on all the evidence.
18. The decision of First-tier Tribunal Judge Bowler expressly referred to TD at paragraph [34], and in my judgment, she applied the reasoning of that case in reaching her decision at paragraphs [35] to [43].
19. I have already set out at paragraph [6] of this decision, the findings made by the First-tier Tribunal Judge. The Judge noted the limited evidence of contact between the appellants' and their father, but took into account the role played by the sponsor when he visited Nigeria in 2012 and 2013. The evidence before the Judge was that the sponsor has lived in the UK since 2003, when the appellants were about 3 and 4 years old. The Judge was entitled to take into account the fact that the sponsor's separation from the appellant is not simply of short duration. The appellant's have been cared for by their grandmother for a significant part of their lives. The Judge was entitled, in my judgment to take into account the paucity of evidence regarding the money transfers made to the appellant's grandmother and whether those funds were paid for the benefit of the appellants, whether the appellant is the only person named as an emergency contact in the school records and the lack of evidence as to the involvement of the sponsor with the school beyond attending annual meetings in 2012 and 2013.
20. In my judgement, the Judge has directed herself appropriately to TD. I accept that it is true that a child being looked after by others does not necessarily mean sole responsibility no longer subsists. However, the Judge having directed herself appropriately to the case law, concluded after a careful consideration of all the evidence that the sponsor does not have sole responsibility for the appellants'.
21. I accept the submission made by Mr. Avery on behalf of the Respondent. The matters advanced on behalf of the appellants' amount to nothing more than a disagreement with the findings of the Judge. The Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982 held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. In my judgment the findings of the Judge that I have referred to in the course of this decision were properly open to her, on the evidence.
22. It follows that the appeal is dismissed.
Notice of Decision
23. The appeal is dismissed.
24. No anonymity direction is applied for and none is made.

Signed Date 15th September 2016
Deputy Upper Tribunal Judge Mandalia

FEE AWARD
As I have dismissed the appeal there can be no fee award.

Deputy Upper Tribunal Judge Mandalia Date 15th September 2016