Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/09012/2014
OA/09013/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 24th June 2016
On 3rd October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) IAN [C]
(2) sebastian [c]
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms A Bhachu (Counsel)
For the Respondent: Ms H Aboni (Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Chapman, promulgated on 2nd October 2015, following a hearing at Birmingham on 28th September 2015. In the determination, the judge dismissed the appeals of Ian [C] and Sebastian [C], whereupon the Appellants subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellants
2. The Appellants are two brothers. Both are citizens of Jamaica. The First Appellant was born on 31st May 1999 and he is now 17 years of age. The Second Appellant was born on 23rd March 2001, and is now 15 years of age. They have lived all their lives in Jamaica and still continue to do so. They have lived with their maternal grandmother, Mrs Jennifer [R]. On 14th April 2014, they made applications for entry clearance to join their mother and stepfather in the United Kingdom, so as to be in the same household as the stepsiblings. The Appellants' mother and stepfather are Mrs Sheren [R] and Mr Kenneth [C] respectively. The latter is a British citizen. That application was refused on 1st July 2014 on the basis that the Appellants' mother, Mrs [R], had limited leave to remain, and that she did not have sole responsibility for the upbringing of the Appellants, and that there were no serious and compelling family or other considerations which make the decision of the children undesirable. Moreover, it was also said that the Appellants could not be adequately accommodated without recourse to public funds in the UK.
The Judge's Findings
3. The judge considered the evidence that Mrs [R], the Appellants' natural mother, had travelled to Jamaica in 2011, with her husband, and had spent time with the Appellants there. She spent one month there. She communicated regularly with the Appellants by telephone and social media in any event. She provided them with money for food, clothing, and leisure activities. That evidence was confirmed by her husband, Mr Kenneth [C] and he had also supported the Appellants (see paragraphs 15 to 16). There are also letters from the grandmother of the children, Mrs Jennifer [R], which confirmed this basic evidence (paragraph 17).
4. When Mr [C] gave evidence, the judge observed how he explained that he had met his wife in 2004 whilst she was visiting family in the Cayman Islands. At the time she did not have her two children with her. The children were living with their grandmother. When they married, Mrs Sheren [R] joined Mr Kenneth [C] in the Cayman Islands. There appears to have been an agreement between them that they would do the best for the Appellant children when they were married.
5. The judge had regard to the relevant case law in this area which consisted of TD (Yemen) [2006] UKAIT 00049 and of Mundeba [2013] UKUT 88 and Singh v ECO, New Delhi [2004] EWCA Civ 1075, all of which were considered carefully (see paragraphs 25 to 32).
6. The judge then made his findings and concluded that the consideration of "sole responsibility" under the law is one that is "a practical one which, in each case, looks to who in fact is exercising responsibility for the child" (see paragraph 40). The judge then broke down the facts that were before him, observing that the Appellants' biological father played no part in their lives, but in 2004, when Mrs [R] met with Mr [C], it was discussed with Mr [C] "the need for him to take on a father's role with respect to the Appellants" (see paragraph 41(iii)). Then they were married on 11th January 2005 in Jamaica and the Appellants did attend their parent's wedding. Mr [C] and Mrs [R] returned to live in the Cayman Islands and the Appellants continued to live in Jamaica with their grandmother and subsequently with Mrs [R]'s sister, Faye, who moved into the household occupied by the Appellants and their grandmother with her two young children (see paragraph 41(iv)). Then in Mr [C]'s and Mrs [R]s' absence in 2004 sent money to Jamaica to contribute to the upbringing of the children. Mrs [R] also returned to Jamaica for three months at the end of 2004 during which period she was married to Mr [C].
7. The judge, in considering all this evidence, concluded that
"I have little doubt that Mr [C] and Mrs [R] have a strong and heartfelt desire to have the Appellants join them in the United Kingdom. They give good reasons for doing so, namely, that the Appellants are the children of Mrs [R], that Mr [C] agreed, when they were married, to be responsible for them in place of their natural father, and also so that the Appellants can be part of their larger family. I accept that they have demonstrated that the Appellants have always been in their thoughts because they have made financial contributions towards their upkeep over a long period of time, and made an effort to have the Appellants join them in the Cayman Islands in 2011" (paragraph 42).
8. The judge went on to hold, however, that "these factors alone, however, do not mean that they have had sole responsibility". This is because
"financial contributions in themselves do not amount to sole responsibility, and I note that in the evidence presented to me the financial contributions have been on a much more regular basis since Mr [C] and Mrs [R] moved to the United Kingdom ?" (paragraph 43).
9. He also went on to say that the evidence suggested that there had been a greater input into the upbringing of the Appellants since that time. Since the Entry Clearance Officer made the decision to refuse, the amount of contact and contributions has increased.
10. He then concluded that whilst there was "some evidence of the role that Mrs [R] has played in the life of her children more recently, there is very little evidence of any involvement, save for the money transfers between 2004 and 2013" (paragraph 45).
11. In addition, as far as the children's schooling was concerned, whilst it was the case that Mrs [R] had made visits to Jamaica in 2011, neither Mrs [R] nor Mr [C] had visited the schools attended by the Appellants (see paragraph 46). The judge was clear that this did not mean that the visits are a prerequisite to a determination of sole responsibility (see paragraph 47).
12. However, the judge observed that given that the flight time between Jamaica and the Cayman Islands was only 45 minutes, it was not clear why Mrs [R] did not make more frequent visits to see the children in Jamaica (paragraph 47).
13. In the meantime, the Appellants were being looked after by their grandmother and jointly by the aunt, Faye. He did observe that, "the aunt was the recipient of the funds sent to Jamaica and appears to have had sole responsibility as to how these funds were spent".
14. The judge therefore concluded that what one had here was a scenario of "shared responsibility" (see paragraph 49). It was not the case that Mrs [R] or Mr [C] had abdicated all responsibility for the Appellants. Indeed, this was clearly not the case. Nevertheless, they could not show that they had sole responsibility for the Appellants (see paragraph 50).
15. As far as the question of serious and compelling family or other considerations was concerned, no evidence had been provided to show that it was the case here that the children had to be admitted on account of the application of this Rule.
16. In considering Article 8 of the ECHR, the judge noted that,
"I acknowledge and understand the reasons why Mrs [R] now wants to have all her children with her, and I understand Mr [C] feels the same way, particularly after having made a form of commitment regarding the Appellants before he married Mrs [R]" (paragraph 64).
17. However, the parents have chosen to arrange their family life in this particular manner and had only recently decided now to have the children join them in the UK and that was a matter for which they alone were responsible (paragraph 64).
18. The appeals were dismissed.
Grounds of Application
19. The grounds of application say that the judge did not fully consider and made false findings on core elements of the evidence, particularly the passports presented in evidence by the Appellants and the evidence relating to when the Sponsor lived in the Cayman Islands. These errors affected the eventual outcome of the decision in relation to the issue of sole responsibility.
20. On 29th March 2016, permission to appeal was granted.
21. On 8th April 2016, a Rule 24 response was entered to the effect that the judge was entitled to come to the conclusions that he did because the Appellants failed to explain what the stamps in the passport were, who they belonged to, or what their relevance was. The judge's response to the full responsibility issue was not flawed because he had applied the Rule in TD (Yemen).

Submissions
22. At the hearing before me on 24th June 2016, the Appellants were represented by Ms Bhachu. She relied upon her skeleton argument and handed up a determination in AM (fair hearings) Sudan [2015] UKUT 00656, upon which she placed reliance. Ms Bhachu made the following submissions. First, that the judge observed at paragraph 17(ix) that there was in the Appellants' bundle a copy of the Second Appellant's passport, and within three pages, a copied passport on which the immigration authority's appear indicating entries and exits from the Cayman Islands and Jamaica.
23. The judge said in relation to these that, "these entries were not explained to me, nor was it explained to me whether they related to the Second Appellant's passport, or some other passport".
24. Ms Bhachu submitted that these entries and exits relate to, 2007, 2008, 2011, and 2012. She submitted that they were contained in the Appellants' bundle at pages 215 to 217. The passport numbers stated on the Second Appellant's passport is C1209192, and this is the same number as appears in the passport copies at pages 215 to 217 at the top of the page.
25. Ms Bhachu submitted that accordingly, the evidence demonstrated the entry and exit of the Second Appellant from the Cayman Islands, and this showed that the Second Appellant, Sebastian [C], was leaving Jamaica to visit his mother in the Cayman Islands. This was relevant to the issue of the contact and the visits maintained between the Appellant and the Sponsor in the Cayman Islands.
26. It was a matter that appears to have been wholly overlooked by the judge. Indeed, the judge said that "these entries were not explained to me" and attached no relevance or weight to them whatsoever.
27. Second, in relation to the issue of sole responsibility, the judge stated that,
"I accept that they have demonstrated that the Appellants have always been in their thoughts because they have made financial contributions towards their upkeep over a long period of time and made an effort to have the Appellants join them in the Cayman Islands in 2011" (see paragraph 42).
28. This sat ill at ease with the statement in the subsequent paragraph at paragraph 43 where the judge stated that, "there is no supporting evidence of contact up to the period November 2014 onwards, which is after the Entry Clearance Officer made the decision to refuse entry clearance" (paragraph 43).
29. What the judge was here suggesting was that, although Mr [C] and Mrs [R] moved to the United Kingdom, there was no evidence of their contact with the Appellant children until the period November 2014 onwards, when this was plainly not the case. The earliest efforts, on the judge's own findings, were made in 2011, and the judge so recognised at paragraph 42 when he stated that he would accept that there was "an effort to have the Appellants join them in the Cayman Islands in 2011" (paragraph 42).
30. At the time Mr [C] and Mrs [R] were properly settled in the Cayman Islands. All of this clearly went to the satisfaction of the sole responsibility test. It was not a case of there simply having been "a heartfelt desire" (paragraph 42) for having the Appellants now join Mr [C] and Mrs [R] in the United Kingdom. This was something that the Sponsors had always intended, and formed part of the agreement of marriage between Mr [C] and Mrs [R] as long ago as 2005, and an attempt to almost successfully do so merely crystallised in 2011.
31. The judge's failure to properly interpret this evidence in the context of satisfying the sole responsibility test was an error of law. When this evidence is properly considered, it acquires a new significance in the context of the telephone records, letter from the Sponsor's mother and the letter from her sister supporting the applications.
32. For her part, Ms Aboni relied upon the Rule 24 response. She submitted that the judge had accepted there was contact. The judge had accepted that family life existed. The judge had said, however, that the degree of involvement of the sponsoring mother was inadequate, and much of the evidence postdated the decision of the Entry Clearance Officer. The judge was entitled to come to this conclusion. As for the passport entries, they were not explained and would have made no difference to the outcome of the decision.
33. In reply, Ms Bhachu submitted that the fact was that there were lots of visits between the Appellants and the sponsoring mother and the passport entry stamps confirmed the visits of the Second Appellant child and this showed that the sponsoring mother was not simply desirous of having her children live with her but had actually taken practical steps to do so at various junctures in her life. She asked me to make a finding of an error of law and to remake the decision.
Error of Law
34. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law for the following reasons.
35. First, there was evidence before the judge of the Second Appellant's passport. It had three pages from a copied passport on which the immigration authorities had stamped entry and exit dates. These dates were clearly from the Cayman Islands and Jamaica. It was not enough for the judge to say that "these entries were not explained to me, nor was it explained to me whether they related to the Second Appellant's passport, or some other passport" (see paragraph 17(ix)). The fact that the Second Appellant's passport number C1209192 is the same as the entries on the passport copies at pages 215 and 217 is significant.
36. Second, and no less importantly, the judge had already concluded that Mr [C] and Mrs [R] had demonstrated "that the Appellants have always been in their thoughts, and that they have made financial contributions for their upkeep over a long period of time", but had also then gone on to say that they had "made an effort to have the Appellants join them in the Cayman Islands in 2011" (paragraph 42). This was entirely consistent with the entry and exit stamps in the Second Appellant's passport which did relate specifically to 2011 itself.
37. A closer look at these entries would have shown that they went beyond 2011 to 2007 and 2008 as well. They extended into not just 2011 but also to 2012. But no less important, in this regard is also the fact that the judge then contradicted himself by stating that "there is no supporting evidence of contact up to the period November 2014 onwards, which is after the Entry Clearance Officer made the decision to refuse entry clearance" (paragraph 43). The findings of fact between paragraphs 43 and 44 are at varies with each other.
38. Third, the judge erred in the ultimate conclusion that,
"the arrangements for the care of the Appellants have now been in place for a long time. They came about as the result of the choice made by Mrs [R] and Mr [C]. This is a choice which they continued to believe appropriate for them whilst they were living in the Cayman Islands and bringing up their other three children together, and one they have only recently decided was no longer the appropriate one for them" (paragraph 64).
39. There are notable difficulties with this. First, it was not the case at all that Mr [C] and Mrs [R] had made a choice to live in the manner that they did. Quite the contrary was the case. Mrs [R] had, on the judge's own findings, made an agreement with Mr [C] that, he was to assume the role of a father when she was to marry him. Whilst they had three of their own children together then, any "arrangement for the care of the Appellants" that was in place, had to be viewed in the context of the fact that an attempt was made to have the Appellants join Mr [C] and Mrs [R] in the Cayman Islands, on the findings made by the judge himself. Second, what all of this suggests is that it is not by any means the case that "they have only recently decided" that the arrangement is no longer appropriate for them to continue.
40. In any event, there is no rule of law in the application of the "sole responsibility" test that an arrangement of family living, where there is a shared responsibility with other family members, cannot subsequently be changed, as family lives do in the course of things change. Responsibility can shift, from one which is "shared", to one which is a "sole responsibility", bearing in mind always that the concept of "sole responsibility" is not to be interpreted in a literal sense, because of the very nature of things, where the responsibility is shared, it can never be "a sole responsibility anyway (see Emmanual [1972]).
41. For all these reasons, this is a decision which amounts an error of law (see Section 12(1) of TCE 2007) such that I should set aside the decision and remake the decision.

Remaking the Decision
42. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the following reasons.
43. First and foremost, this is not a case where the sponsoring mother has abandoned her children, and indeed this was not the finding of the original judge, who found that Mr [C] and Mrs [R] "have a strong and heartfelt desire to have the Appellants join them in the United Kingdom" (paragraph 42). They had their own lives, of course, when they married in the Cayman Islands in January 2005, but all the evidence is that they have taken their responsibilities towards their children in the most utmostly serious fashion. They have three children amongst themselves and these children live with them. The judge found that the reason for sponsoring the Appellant children to come to the UK amounted to "good reasons for doing so", so that "the Appellants can be part of their larger family" (paragraph 42) together with the other three children who are living in the UK.
44. Second, and no less significantly, Mrs [R], the mother, had made Mr [C], the stepfather, "agree in a manner, when they were married, to be responsible for them in place of their natural father" (paragraph 42).
45. Third, the judge found that "the Appellants have always been in their thoughts because they have made financial contributions toward their upkeep over a long period of time" (paragraph 42).
46. Fourth, the judge also found that they had "made an effort to have the Appellants join them in the Cayman Islands in 2011" (paragraph 42). It is this latter aspect of the case, which upon further evidence in this Tribunal, has acquired a new significance because it now transpires that the passport entries in the Appellants' passports, showing that attempts were made to have the children join the parents in the Cayman Islands when they were settled there, extended way beyond 2011 into 2007, 2008 and then 2011 and 2012, when there were visits and this evidence appears in the Appellants' bundle at pages 215 to 217.
47. It is in this context that the concept of "sole responsibility" must be interpreted. As already pointed out, it is well accepted that there can never be "sole responsibility" in the literal sense, because in its very nature, where children are left behind, the responsibility has to be shared. "Sole responsibility" is not the same as legal custody. If, as the judge earlier accepted, monies were being sent over a long period of time by the sponsoring mother, they were being sent for the children's upkeep, and the judge found that, "in more recent times" the mother had taken on a significant role (paragraph 48). It does not matter whether this is recent or not recent.
48. What matters is that the taking on of the sole is entirely consistent with the mother's long-term interest in having her children join her, and even taking an undertaking from her husband, as a condition of marrying him when she did so in January 2011. Nothing could be stronger than this evidence to show that she has continued to treat her children as her children and to have a longstanding aspiration of being reunited with them. Indeed, there is a reason for why the mother's interest more recently has become more pronounced and that is that the grandmother now has health issues, as inevitably she would as time went on (see paragraph 49).
49. In circumstances where the Appellants' natural father has left the scene and is not involved in their lives, the sponsoring mother exercised practical care and day-to-day support for the Appellants from the UK and it is no stretch of imagination to say that she has exercised "sole responsibility" over her own children in that she has been singularly involved in the welfare of her children.
50. In addition, it is important that regard is also had to Section 55 of the BCIA 2009 because the case of T (s.55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 00483 (IAC) has established that it stands to be applied in a case such as the present. This is a case where the interests of the child were plainly under consideration in an entry clearance case, and the original judge failed to pay close attention to the issue of "best interests" of the Appellant. It is now well-established that where the interests of a child are under consideration appropriate enquiries need to be made in entry clearance cases with regard to the age, and care needs of the child (see JO and Others (Section 55 duty) Nigeria [2014] UKUT 00517.). The decision maker must properly be informed of the position of the child. Being properly informed and conducting a scrupulous analysis is a prerequisite of identifying the child's best interests. This then has to be balance against other essential considerations. Performing these duties will be an intensively fact-sensitive and contextual exercise. This is a case where the ECO did not do this. However, the judge did not do it either. This was a failing of an administrative responsibility. It was also the failing of a legal obligation.
51. In the case of T (s.55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 00483 (IAC) it was held that, "it is difficult to contemplate a scenario where a Section 55 duty was material to an immigration decision and indicated a certain Article that Article 8 did not" (see paragraph 29). When the facts of this case are considered it is plain that there is no moral or physical danger to the children. They are young and in their formative years of their age. They have been looked after by someone, but the grandmother has health issues, and requires assistance by the aunt. The wishes of the children are to be with their natural mother. They have visited the natural mother in the Cayman Islands. They know that the natural mother has been sending monies and there is a long-term plan to have the family reunited. The Appellants have a mother and a stepfather in the UK who can provide maintenance and accommodation and who have a clear desire to care for them. In these circumstances, the requirements of Article 8 are also plainly met. This is for the following reasons.
52. In Mundebe [2011] UKUT 88 (IAC) it has been explained yet again that the focus of Section 55 is on the circumstances of the child in the light of his or her age, social background and development history. It requires an enquiry into whether there is (a) evidence of neglect or abuse; (b) there are unmet needs that could be catered for; and (c) whether there are stable reasons for the child's physical care. The assessment of one's consideration as to whether the combination of circumstances are sufficiently serious and compelling to require the admission of these Appellant children into the UK. Taking all these matters into account, I am allowing this appeal for the following reasons.
53. If one applies what Bingham established in Razgar (at paragraph 17), the following emerges. At first, it is plain that continued exclusion of the Appellant children is an interference by a public authority, namely, the Secretary of State, with the exercise of the Appellants' right to respect for their family life. This family life is qualitatively different with the one that the Appellants were presently enjoying in their country of origin, where their carer has health problems, as against a family life that they will enjoy with their own mother and stepfather, both of whom are keen and able to look after the Appellants, and this especially the case given that the Appellants' natural father is not on the scene, and particularly in circumstances where there was a bond between the parent that the children would be looked after by them, and in circumstances where efforts were made to this effect when the parents were living in the Cayman Islands.
54. Second, the interference here does have consequences of such gravity as potentially engage the operation of Article 8 (bearing in mind that this is a low threshold). Third, and on the other hand however, the decision is not in accordance with the law because the Appellants can meet the sole responsibility test in the Immigration Rules. Fourth, the interference is not necessary in a democratic society, because it is not necessary for the economic wellbeing of the country, or for the prevention of crime, or for the protection of the rights and freedoms of others. There is no hint whatsoever of any wrongdoing or illegality by any of the parties concerned. In fact, all the evidence is that the Appellants' mother is in the UK (now happily remarried) and that the stepfather had undertaken to assume the role of a father for these children, and that efforts have been made as long ago as 2007 to ensure this, with a long period of financial remittances being made. Fifth, all-in-all, the interference is not proportionate to the legitimate public end that is sought to be achieved.
55. It is well accepted that the material question engaging the proportionality of an administrative action that threatens to break a family is whether it is reasonable to expect the Appellant to remain separately from his or her natural parents, which in this case means their natural mother (their natural father effectively having broken off from them), who is now a person with the legitimate legal status in the UK and is settled. On the facts of this case, it is not reasonable.
56. On the totality of the evidence before me, I find that the Appellants have discharged the burden of proof and the reasons given by the Respondent do not justify the refusal. Therefore, the Respondent's decision is not in accordance with the law and the applicable Immigration Rules.
Notice of Decision
57. The appeal is allowed.
58. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 30th September 2016

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of the amount paid or payable.

Signed Date

Deputy Upper Tribunal Judge Juss 30th September 2016