Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA097392014

THE IMMIGRATION ACTS

Heard at Taylor House
Decision & Reasons Promulgated
On 24 May 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

mohit singh
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER - NEW DELHI
Respondent

Representation:

For the Appellant: No appearance
For the Respondent: Mr L Tarlow

DECISION AND REASONS

1. The appellant is a citizen of India born on 22 November 1999. He applied for entry clearance to settle in the United Kingdom with his father, Abbal Singh. The Entry Clearance Officer considered the application under paragraph 297 of the Rules and refused it on 22 July 2014. The appellant appealed the decision and his appeal came before the First-tier Tribunal on 10 August 2015. The appellant's father did not attend the hearing and the judge determined the appeal in the absence of the sponsor. In paragraph 2 of the decision the First-tier Judge stated as follows:

"The decision appealed against is the decision of the Entry Clearance Officer dated 22 July 2014. The Entry Clearance Officer considered paragraph 297 of the United Kingdom Immigration Rules. However, the appellant's father Abbal Singh is a British citizen. He lives in the United Kingdom. In the appellant's application, the appellant states that his mother and siblings will be joining the appellant and his father at a later date. The sponsor, the appellant's father Mr Abbal Singh, also wrote a letter of explanation stating that he is married to the appellant's mother and that the relationship is subsisting. The Entry Clearance Officer considered paragraph 297. It is possible under paragraph 297(i)(a) for an application for leave to enter to succeed where both parents are present and settled in the United Kingdom. That is plainly not the situation here and the Entry Clearance Officer states that it is not the situation. It is possible under paragraph 297(i)(e) for leave to enter to be granted where 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. The entry clearance officer in this case indicated that the appellant's father is not solely responsible for his care as the appellant is now living with his mother in India. The Entry Clearance Officer refused the application because he was not satisfied, on the balance of probabilities, that the appellant meets all the requirements of the relevant paragraph of the Immigration Rules."

2. The judge concluded that the Entry Clearance Officer was correct in that the appellant could not satisfy paragraph 297 of the Rules. Only the appellant's father was present and settled in the United Kingdom and his mother was in India. The judge also stated he was satisfied that the appellant's father had not had sole responsibility for the appellant's upbringing and therefore paragraph 297(i)(a) or paragraph 297(i)(e) could not be met. In relation to Article 8 the judge observed that the appellant had never been in the United Kingdom and the decision of the Entry Clearance Officer not to allow the appellant leave to enter simply maintained the status quo and did not separate the family. Article 8 was not engaged since there was no interference with the appellant's right to family life or private life. The appellant had never been in the United Kingdom and lived in India with his mother and siblings. The judge accordingly dismissed the appeal.

3. The appellant applied for permission to appeal and permission to appeal was granted on 26 April 2016. The First-tier Judge noted that the sponsor had made the application on the basis that he did not have notice of the hearing and wished to give evidence.

4. At the hearing before me the sponsor again did not appear and there was no explanation for his non-attendance. I was satisfied that notice of hearing had been sent to the sponsor and I was satisfied under Rule 38 that it was in the interests of justice to proceed with the hearing.

5. Mr Tarlow submitted that there was nothing to rebut the Entry Clearance Officer's decision. It was difficult to see what the sponsor could have said to change matters.

6. At the conclusion of the submissions I reserved my decision. I remind myself that I cannot interfere with the First-tier Judge's decision absent a material error of law. Permission to appeal was granted on the footing that it was arguable that the sponsor had not had notice of the hearing. It appears however from the file that the sponsor was notified about the hearing before me by notice on 4 May to the address he had specified. The sponsor has not attended before me and there is no explanation for his absence.

7. As Mr Tarlow observed, it is difficult to envisage a different outcome had the Tribunal had the benefit of the sponsor's evidence.

8. I adopt and agree with the points made by the First-tier Judge for dismissing the appeal under the Rules. The appellant cannot sensibly bring his case under paragraph 297 as the judge pointed out.

9. In relation to Article 8 again I do not find that the judge's decision was arguably flawed and I adopt the points he made when dismissing the appeal on that basis.

Notice of Decision

10. The decision of the First-tier Judge was not materially flawed in law and this appeal is dismissed.

11. No anonymity direction made.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made no fee award and I make none.

Signed Date 8 June 2016

G Warr
Judge of the Upper Tribunal