Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08613/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 2 February 2017
On 6 February 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Dogucan Aytas
[No anonymity direction made]
Appellant
and

The Entry Clearance Officer Istanbul
Respondent

Representation:
For the appellant: Mr M Aslam
For the respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Dogucan Aytas, date of birth 5.4.97, is a citizen of Turkey.
2. This is his appeal against the decision of First-tier Tribunal Judge Connor promulgated 8.8.16, dismissing his appeal against the decision of the Entry Clearance Officer, dated 20.4.15, to refuse his application for entry clearance as the dependant of a Turkish ECAA businessperson (his mother), pursuant to paragraph 35 of the HC509 Immigration Rules.
3. The Judge heard the appeal on 13.6.16.
4. First-tier Tribunal Judge Hollingworth granted permission to appeal on 29.12.16.
5. Thus the matter came before me on 2.2.17 as an appeal in the Upper Tribunal.
Error of Law
6. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Connor should be set aside.
7. The application was refused because the Entry Clearance Officer was not satisfied that the sponsoring mother had sole responsibility for the appellant. Concern was expressed about the limited contact between the sponsor and the appellant since she relocated to the UK in 2005, when the appellant was 8 years of age.
8. However, at the heart of the appeal lies an argument on the interpretation and scope of paragraph 35 of HC509, and the 'standstill' effect of the Ankara Agreement.
9. The First-tier Tribunal Judge set out the relevant passage at [49] of the decision, to the effect that the spouse and children under 18 of a person permitted entry to the UK as a self-employed person should be given leave to enter for the period of the person's authorised stay.
10. The judge went on from [51] to deal with the respondent's position and the Home Office guidelines. At [55] & [56] the judge concluded that in considering the position of a dependent child, where on of the parents is not included in the application and not entering the UK, the Entry Clearance Officer was correct to apply the guidelines, in effect importing a requirement for the Turkish ECAA business person to demonstrate that she has had sole responsibility for the appellant's upbringing.
11. The judge then went on to assess the factors relevant to the assessment of sole responsibility and concluded that the sponsor does not have sole responsibility for the appellant. Neither did the judge accept that there were any exceptional, serious or compelling family or other considerations which would make the exclusion of the appellant undesirable. The appeal was dismissed.
12. It was and remains the appellant's argument that there cannot be any qualification on paragraph 35 and that the Immigration Rules applied by the Entry Clearance Officer via the guidelines do not apply to paragraph 35.
13. In granting permission to appeal, Judge Hollingworth considered there to be an arguable error of law in relation to the interpretation of paragraph 35 and the applicability of the respondent's guidance. "It is arguable that the guidance itself does not possess the effect attributed to it by the Judge. The question of sole responsibility becomes arguable in terms of its relevancy. It is arguable that the Judge should have provided a sufficient analysis of the effect of the Ankara Agreement."
14. The Rule 24 reply, dated 19.1.17, asserts that the judge's approach was correct and the judge was entitled to reach the conclusions she did in assessing the best interests and wellbeing of the appellant, noting that the appellant has not lived with his mother since 2005.
15. At the hearing before me both Mr Nath and Mr Alsam assured me that there has been no previous decision on whether the respondent is entitled to qualify or limit the standstill effect of paragraph 35 of the Ankara Agreement. However, it transpired that was not accurate. In OY (Ankara Agreement, Standstill Clause, Workers' Family) [2006] UKAIT 28, a decision which Mr Aslam was unaware of, the Upper Tribunal panel comprehensively rejected the argument advanced by Mr Aslam at the First-tier Tribunal and before me. The standstill clause in Article 6 of Association Council Decision 80/1 is concerned solely with the conditions relating to the worker's "access to employment" in the UK. "It is not concerned with the admission to the UK of a Turkish worker or his family. Consequently, the admission to the UK of the family of a Turkish worker is to be determined on the basis of the relevant immigration rule (and any policies) in effect at the date of the entry clearance condition." I need not rehearse the extensive and careful reasoning for this conclusion, but it is clear that it disposes entirely of Mr Aslam's primary submission.
16. Mr Aslam's secondary submission, relying on TD (paragraph 2979i)(e): "sole responsibility") Yemen [2006] UKAIT 00049, is that the judge erred in the assessment of sole responsibility. In TD the Upper Tribunal panel held that sole responsibility is a factual matter to be decided upon all the evidence. "Where one parent is not involved in the child's upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child's upbringing, including making all the important decisions in the child's life. However, where both parents are involved in a child's upbringing, it will be exceptional that one of them will have 'sole responsibility.'"
17. Mr Aslam also pointed to what were said to be factual inaccuracies in the decision of the First-tier Tribunal, and, contrary to the findings of the judge, asserted that there were no inconsistencies in the evidence submitted on the appellant's behalf in relation to whether the father worked.
18. I have carefully considered the submissions in [14] onwards of the grounds, in particular at [19], but in essence this is no more than a disagreement with the findings of the First-tier Tribunal and an argument as to weight, which is a matter for the judge. For example, the judge took into account the Turkish family court judgement, but concluded at [64] that this was to facilitate the appellant's relocation to the UK, and not on the basis that she already had care of him. The judge noted the court documents stated that the father was unable to care for the appellant, but the judge concluded this was inconsistent with the order, which allowed him to care for the child for a month each year. Thus at [66] the judge concluded that the court documents do not support a finding that the sponsor has has sole responsibility for the appellant's upbringing. That was a finding open to the Tribunal.
19. In any event, it is clear that the core of the findings of the First-tier Tribunal at [61] and from [62] onwards of the decision stand independent of the various criticisms made. The judge has given clear and cogent reasons for concluding that on the facts of this case the sponsor has not had sole responsibility for the appellant. It cannot be said that the decision was irrational or perverse. In this respect, the grounds of application for permission to appeal are no more than a disagreement with the findings and conclusion of the First-tier Tribunal.
20. I am not satisfied that there is any material error and not satisfied in any event that it the alleged errors are in any event material to the issues in the case, namely sole responsibility.
Conclusions:
21. For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 5 October 2021

Deputy Upper Tribunal Judge Pickup
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The appeal against the decision of the First-tier Tribunal has been dismissed and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 5 October 2021