Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/12263/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 30 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

ENTRY CLEARANCE OFFICER
Appellant
and

YAO [L]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Miss A Fijiwala, Senior Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS
Background
1. The appellant in this case is the Entry Clearance Officer however for the purposes of this decision I refer to the parties as they were before the First-tier Tribunal where Mr [L] was the appellant.
2. Mr [L] is a national of Niger born on 30 December 1987 and appealed the decision of an Entry Clearance Officer dated 28 August 2014 refusing him entry clearance to the United Kingdom as the child of a settled person, [HG], a British citizen present and settled in the UK.
3. In a decision promulgated on 24 March 2016 Judge of the First-tier Tribunal Bart-Stewart allowed the appellant's appeal under the Immigration Rules. The Entry Clearance Officer appealed with permission on the grounds that the judge did not give adequate reasons for findings on material matters. In particular it was argued that the judge failed to give adequate reasons as to why the sponsor met the sole responsibility test, particularly given that the sponsor had left the appellant at the age of 11, did not know key details including the name of the appellant's school or that he had slept outside for some six months, and arguably failed to explain how she was satisfied that in reality the sponsor was involved in the appellant's life to the degree required.
4. There was no appearance by or on behalf of Mr [L]. I was satisfied that the notice of hearing had been properly issued and I note that the sponsor was legally represented. I considered the relevant Procedure Rules, in particular the Tribunal Procedure (Upper Tribunal) Rules 2008, Rule 2 the overriding objective, the case management powers under Rule 5 and Rule 38, where if a party fails to attend a hearing the Upper Tribunal may proceed with the hearing if the Upper Tribunal:
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) consider that it is in the interests of justice to proceed with the hearing.
5. I was so satisfied and proceeded with the appeal.
6. Miss Fijiwala relied on the case of TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049. I also indicated that as alluded to by the permission judge I had sight of the relevant extract from Macdonald's Immigration Law and Practice 9th edition Sections 11.87 - 11.91. I also had regard to Buidov [2012] EWCA Civ 1739.
7. It was Miss Fijiwala's submission that the judge failed to apply the relevant legal test. The judge's findings were set out at paragraphs [29] to [33] of the decision, in relation to sole responsibility. Miss Fijiwala conceded that the judge had accepted that there was one visit from the sponsor to the appellant. At [33] and [34] the judge focuses on the fact that the appellant's father had not played a role and found that the sponsor had exercised sole responsibility. It was Miss Fijiwala's submission that no findings had been made as to who had care and control of the appellant. Miss Fijiwala also submitted that the judge had made findings including at [30] that the evidence from the school that "parents need to get involved" undermined the sponsor's claim that she received regular reports by email and that she was in telephone contact with the appellant's teachers. In that regard Miss Fijiwala submitted that it was difficult to see how the judge could have reached the decision that the sponsor have had sole responsibility.
8. Miss Fijiwala conceded that the grounds of appeal to the Upper Tribunal conflated paragraph 297(i)(e) with paragraph 297(i)(f) which related to serious and compelling family or other considerations which might make exclusion of the appellant undesirable and suitable arrangements had been made for the child's care. Miss Fijiwala conceded that the judge had not allowed the appeal on that basis and that the First-tier Tribunal had allowed the appeal solely on the basis that she had found that the sponsor had sole responsibility for the appellant's upbringing and she did not rely on this part of the grounds.
Decision on Error of Law
9. I have considered the decision of First-tier Tribunal Judge Bart-Stewart in its entirety and note that the judge set out in considerable detail the evidence before her including the oral evidence given and the submissions. The judge also properly directed herself at [23] in relation to TD (Yemen) above as follows:
"Sole responsibility is a factual matter to be decided upon all the evidence. where one parent is not involved in a child's upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise begotten 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 of 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'."
10. The judge reminded herself that there were relevant Immigration Directorate Instructions (IDIs). Those relevant IDIs, July 2012, Chapter 8 Section FM 3.2 paragraph 4.3 suggests that the following factors should be considered where the issue of sole responsibility is not clear:
(i) The period for which the parent in the UK has been separated from the child;
(ii) What the arrangements were for the care of the child before that parent migrated to the UK;
(iii) Who has been entrusted with day-to-day care and control of the child since the sponsor migrated here;
(iv) Who provides the financial support for the child's care and upbringing and in what proportion;
(v) Who takes the important decisions about the child's upbringing, such as where and with whom the child lives, the choice of school, religious practice, etc.
(vi) The degree of contact that has been maintained between the child and the parent claiming responsibility; and
(vii) What part in the child's care and upbringing is played by the parent not in the UK and relatives.
11. I am satisfied that the judge's decision reflects a consideration of the above issues. It was also evidence that the judge had in mind the issues of concern to the respondent including as set out at [20] of her decision where the Presenting Officer had submitted that the sponsor knew nothing about her son, his sleeping on the floor or how his school fees were paid.
12. I am satisfied that the judge carefully considered all of the evidence before her and made findings including that the sponsor had been in Niger and Ivory Coast for six weeks in total in 2012 and find that there was likely to have been physical contact between the appellant and the sponsor prior to the date of decision. The judge went on to consider the evidence of contact including phone bills and found that there was not evidence of daily calls as the sponsor had claimed and that the sponsor's claim to receive regular post by email and be in telephone contact with the appellant's teacher was "rather undermined" by comments from the school. The judge also took into consideration that there was a large amount of money transfer receipts. The judge went on to consider difficulties with the sponsor's evidence including that she did not often answer direct questions in a direct manner. However she found that:
"The sponsor's account of her visit to her son was vivid as was her account of the emotional support, the provisions she has made and their conversations. She explained the appellant's desire to remain in Niger during the visit in 2012 and her account of advising her son that he was only being treated well because she was there and they should return to Ivory Coast. This came out as a spontaneous response and I find cogent evidence of the decisions that she has made. She explained that despite the claim of ill-treatment in Ivory Coast, she considered that priority to be that the appellant gets an education and therefore remains in Ivory Coast. She explained the provisions made with Mr Bah so that the appellant could remain with him until he went to Niger."
13. Although the judge went on to find that it was surprising that the sponsor was unaware that his cousin had been making him sleep outside, the judge took into consideration that the appellant was not living in the UK and that the judge had to take into account a different culture and environment. The judge also reminded herself that the relevant guidance and case law accepted that day-to-day care had to be with someone and found that there was no evidence that "someone" was the appellant's father. The judge found that the regular transfers of money to various different people in Niger supported and corroborated the sponsor's evidence that the appellant's father had not played a role and supported a finding that the appellant has lived with various individuals and has had to move between relatives and friends and, particularly significantly that "the constant is support from his mother".
14. It is clear therefore that the judge applied the relevant guidance and case law The judge set out the various difficulties with the evidence and gave cogent reasons for preferring the account of the sponsor that in effect this was a child who had been moved between various relatives and friends during his mother's absence and that it was his mother who provided for him financially, took the important decisions about her child's life including about his education and had ultimate responsibility for him.
15. I do not accept therefore Miss Fijiwala's submission that the judge's decision was predicated solely on financial support. This is clearly not the case including as the judge found the sponsor's account of the decisions that had been made in relation to the appellant's life and whether he should live in Niger or Ivory Coast and his education, to be credible, as set out paragraph [31] of her decision.
16. The fact that the judge has in this case not accepted everything that was said by the sponsor does not indicate a material error in her decision. Whilst it is clear from the judge's decision that elements of the sponsor's account were perhaps exaggerated, this did not undermine her core finding that on a balance of probabilities the sponsor has exercised sole responsibility for the appellant's upbringing. The fact that the evidence might not have demonstrated this beyond a reasonable doubt is not the test.

Conclusion
17. The decision of the First-tier Tribunal Judge does not disclose a material error of law and shall stand.
No anonymity direction was sought or is made.

Signed Date 30 September 2016

Deputy Upper Tribunal Judge Hutchinson