Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07645/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 29 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

chrysan regina monique cummings
(ANONYMITY DIRECTION NOT made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation
For the Appellant: Mr A. Ariyo, instructed by Apex Solicitors
For the Respondent: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Jamaica born on 7 January 1997 whose application for entry clearance to join her mother in the UK was refused under Paragraph 297(i)(e) of the Immigration Rules. Her subsequent appeal to the First-tier Tribunal was heard by Judge Herlihy. In a decision promulgated on 11 August 2016, the judge dismissed the appeal. The appellant now appeals against that decision.

2. It was common ground before me that the judge made a material error of law such that the decision would need to made afresh. The decision is full of factual errors and appears to be written about a different person to the appellant. One striking example is the judge’s finding at paragraph 6.3 that “it is beyond doubt that the appellant has learning difficulties and an intellectual disability”. The appellant, however, does not have a learning disability. The judge referred to two psychological reports about the appellant’s disability. However, there are no such reports, just as there is no disability.

3. Mr Nath, accepting there is an issue of fairness, was of view that the appeal should be remitted to the First-tier Tribunal. I offered the appellant the choice: if she preferred I would remake the appeal myself. But if she agreed with Mr Nath, I would remit the matter to the First-tier Tribunal. Mr Ariyo took instructions and advised that the appellant wanted to proceed with the remaking in the Upper Tribunal.

4. Having heard oral evidence from the appellant’s mother (who I found to be a credible witness) and considered the witness statements and other evidence that was before the FtT, I make the following findings of fact:

a. The appellant’s mother moved to the UK in 2001 leaving her four year old daughter (the appellant) with her mother (the appellant’s grandmother).
b. The appellant has no contact with her father and has not seen him since she was three months old.
c. The appellant and her mother are, and have been throughout the appellant’s life, in regular contact by telephone.
d. The appellant’s mother and appellant’s grandmother are in regular contact by telephone.
e. Day to day care for the appellant has been provided by the appellant’s grandmother, with whom the appellant lives.
f. The appellant’s mother has been involved in making decisions affecting the appellant throughout the appellant’s life. The appellant’s grandmother would confer with the appellant’s mother before decisions were taken.
g. In respect of any important decisions, the appellant’s grandmother would defer to the appellant’s mother.
h. The appellant’s mother has played an active role in the appellant’s life despite the geographical distance.
i. As the appellant has become older, she has confided more in her mother and feels able to discuss issues with her that she will not speak to her grandmother about.
j. The appellant’s mother lives in a one bedroom flat and earns in the region of £300 a week.
k. The appellant’s mother has regularly sent money to the appellant (or to her mother in order that she can use the funds for the appellant).

5. In order to succeed in this appeal, the appellant must show that, on the balance of probabilities, she satisfies the requirements of Paragraph 297 of the Immigration Rules.

6. Paragraph 297 provides in relevant part as follows:

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
……
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing;
……..; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal under the general grounds for refusal.

7. The respondent accepts that subparagraphs (ii), (iii), (iv), (v), (vi) and (vii) are met and the only issue in contention is whether Paragraph 297(i)(e) is satisfied. This appeal turns, therefore, on the question of whether the appellant’s mother has had sole responsibility for the appellant’s upbringing.

8. It is clear that the appellant’s mother does not share responsibility for the appellant with the appellant’s father. He has not seen the appellant since she was a baby and has had no involvement with, let alone responsibility for, her.

9. However, it is less clear whether there is shared responsibility between the appellant’s mother and grandmother. The issue of sole responsibility where a child is cared for by someone other than the parent was addressed in TD (Paragraph 297(i)(e) “sole responsibility”) Yemen [2006] UKAIT 00049 where it was stated:

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”.

51. In reaching a decision on what is a fact-rich issue, it is important to take account of evidence of any contact between the parent and the carer in respect of important decisions to be taken about the child and its upbringing. The availability of modern communications technology may reduce the impact of distance alone on a UK parent’s ability to be consulted (and therefore decide) about the child’s upbringing in another country. The length, and cause, of the separation of parent and child and the reasons for its continuation may shed some light on the role played by the carer abroad. Likewise, it may be helpful to look at the financial support provided by the parent and, in particular, its absence may be very telling.

10. Although the appellant’s grandmother has dealt with day to day matters concerning the appellant, she has deferred to the appellant’s mother in respect of important decisions and it has always been the understanding and arrangement between the appellant’s mother and grandmother that the mother was ultimately responsible for the appellant and had the final say in any significant decision. Throughout the appellant’s life, her mother and grandmother have maintained regular and frequent contact which has enabled the appellant’s mother, despite the geographical distance, to maintain her position as the person responsible for the appellant. The appellant’s mother has also provided financial support. In these circumstances, I am satisfied, applying TD, that the appellant’s mother has had sole responsibility for the appellant’s upbringing and therefore that the requirement of Paragraph 297(1)(e) is satisfied.

Decision

11. The decision of the First-tier Tribunal contains a material error of law and is set aside.

12. I remake the decision by allowing the appellant’s appeal.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 24 March 2017