Tribunal decisions

The decision

Upper-Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14539/2014

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 23rd January 2017
On 1st February 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MISS SHENIQUE KAYCIA GORDON
(Anonymity Direction not made)
Appellant
AND
ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Slatter (Counsel)
For the Respondent: Mr Tufan (Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Clarke promulgated on the 20th July 2016, in which he dismissed the Appellant's appeal against the Respondent's refusal to grant entry clearance as a child of a person present and settled in the United Kingdom under paragraph 297 of the Immigration Rules and on human rights grounds.
2. Within the Grounds of Appeal, which is a matter of record and is therefore not repeated in their entirety here, but which I have fully taken account of, it is argued, inter-alia, that the learned First-tier Tribunal Judge misdirected himself in law when assessing the issue of "sole responsibility", and that although the Judge had referred to the Upper Tribunal decision in the case of TD (paragraph 297(i)(e): "Sole responsibility") Yemen [2006] UKAIT 00049, the Judge had failed to apply the ratio of the case when finding there had been shared responsibility between the sponsor and the grandmother. It is argued that the Judge failed to acknowledge that the Rules envisage that a parent who is settled in the UK may have sole responsibility for the child's upbringing in another country. It is argued that the Judge relied upon attendance by the grandmother at parent-teacher meetings and dealing with the day-to-day matters such as the Appellant's schooling, at [34] of the decision to find that responsibility was shared and it is argued that these were matters of day-to-day responsibility that were not inconsistent with the sponsor having "sole responsibility" for the Appellant for the purpose of paragraph 297(i)(e) of the Immigration Rules.
3. It was further argued within the Grounds of Appeal that the Judge placed undue weight on the financial contribution made by the grandmother between 2002 to 2009 during a period when the sponsor was not working, when finding that the financial arrangements indicated a sharing of parental responsibility and that the Judge erred in requiring sole financial responsibility to last for any particular duration. It was further argued that the Judge failed to take account of the fact when relying upon absence of visits before 2009 between the sponsor and the Appellant, that the sponsor was not granted indefinite leave to remain until the 19th May 2009.
4. In respect of Article 8 it is argued within the Grounds of Appeal that the Judge failed to properly apply the case of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387 and had not applied the test as to whether there was a reasonably arguable case under Article 8 which had not already been specially dealt with by consideration of application of the substantive provisions of the Rules. It is argued that the sponsor had two British children by different fathers with whom they maintained contact, for whom she cared for in the UK and that there were therefore Article 8 considerations which were not dealt with by paragraph 297. It is further argued that the Judge misdirected himself when relying upon a deportation case namely the Secretary of State for the Home Department v AQ (Nigeria) and Others [2015] EWCA Civ 250, which it is argued lead the Judge into error when approaching proportionality and that the Judge should have attached considerable weight to the fact that the Appellant was said to be unable to meet the requirements of the Immigration Rules. It is further argued that the Judge materially erred when finding that the Appellant did not have family life with her sponsor mother, and that there was a strong presumption in favour of family life between mother and child and that inadequate reasons were given for finding the Appellant did not enjoy family life with her mother. It was further argued that the Secretary of State had accepted that the Appellant could be adequately maintained and accommodated for the purpose of paragraph 297, and that therefore the Judge had misdirected himself in finding that the Appellant was not financially independent.
5. Permission to appeal has been granted by First-tier Tribunal Judge Shimmin on the 28th November 2016, he found that it was arguable that the Judge misdirected himself as to the law in relation to 'sole responsibility' of the evidence relating thereto and that "furthermore, it is arguable the Judge misdirected himself in respect of the law in relation to the Article 8 assessment". He granted permission on those grounds.
6. In the Rule 24 Reply filed on behalf of the Respondent, is argued inter-alia, that the First-tier Tribunal Judge direct himself appropriate and the grounds amount to a mere disagreement with the Judge's findings and the Judge considered aspects of the Appellant and sponsor's account and considered the evidence in the round when arriving at the decision of sole responsibility and the Judge did not find the Appellant's claim to be wholly credible. It was said these were conclusions the Judge was entitled to come to and the Judge was entitled to attach weight to the financial agreement between the Grandmother and the sponsor and the Grandmother's involved in the Appellant's education and the absence of visits by the sponsor over a seven-year period and the sponsor's decision to remain in the UK without a daughter. It is further argued within the Rule 24 Reply that the Judge's findings on Article 8 were open to him and the grounds simply attempt to reargue the case. It was argued there was no material error of law.
7. Within the Appellant's skeleton argument, which again is a matter of record and is therefore not repeated in its entirety here, but which I have fully taken account of in reaching my decision, it is argued, again that the Judge failed to take account of the ratio in the case of TD (paragraph 297(i) (e): "sole responsibility") Yemen [2006] UKAIT 00049 when finding that there had been a share in responsibility between the sponsor and Grandmother. It was argued the Judge erred in treating the grandmother's day-to-day care for the Appellant as meaning there being a lack of sole responsibility by the sponsor mother. Reference was made in the grounds to paragraph 49 of the decision in TD (Yemen) where it stated that "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 day-to-day care of the child do necessarily be undertaken by others-relatives or friends abroad-who will look after the child?". The Tribunal continued at [50] in TD (Yemen) defines that "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 the teeth, or has enough clothing and so forth' (Ramos, per Dillon LJ at page 151)-rests with the carers abroad and is not conclusive with the issue of 'sole responsibility' ". It is argued that the Judge placed undue weight upon the absence of words such as 'sole' or 'exclusive' responsibility in the letter from the Appellant's school dated the 19th May 2016 in respect of the mother sponsor's involvement and the Judge had aligned the concepts of parental responsibility and sole responsibility. It was further argued that the Judge misdirected himself in requiring the sponsor to establish that she carried the greater financial burden since 2002 through to the date of the decision in 2014 and that sole responsibility did not need to lastly for any particular duration. It was further argued that the Judge misapplied the case of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387 when assessing the Appellant's Article 8 case and the test was not whether or not the Appellant's family life had already been considered under the Rules but whether or not there was "a reasonably arguable case into Article 8 which had not been specially dealt with, by consideration of the application under substantive provisions of the Rules then in considering that case individual interests of the applicant and others whose Article 8 rights are an issue should be balanced against the public interest, including as expressed in the Rules, in order to make an assessment whether refusal to grant LTR or LTE, as the case may be, is disproportionate and hence unlawful by virtue of Section 6 (1) of the Human Rights Act, read with Article 8". It is argued that the question as to whether or not the family comprising of a mother two children and minor Appellant could all live in Jamaica was not addressed at all.
Oral Submissions
8. In his oral submissions, Mr Slatter relied upon his skeleton argument, and went through the same, reiterating the arguments made within that skeleton argument. He argued that the Judge had misdirected himself in treating day-to-day care as conclusive of lack of sole responsibility and that the Rules envisaged a UK based parent may have sole responsibility. He argued that the Judge requiring the Appellant to have been financially supported over the years and there having been a lack of visits between 2002 and 2009 was wrong in law and the Judge had erred in requiring sole responsibility to have been present for any particular period of time. He further argued the Judge placed undue weight upon the letter from the Appellant's school. He further argued the Judge had failed to explain his finding that no family life existed between the Appellant and sponsor and that the Judge had wrongly applied SS Congo, as he argued within the skeleton argument.
9. He argued the Judge was wrong to say that the test was simply whether or not family life had already been considered and that the Judge had not considered the sponsor's sons in the UK and whether or not the mother and her family would be able to live in Jamaica had not been considered.
10. In his submissions on behalf of the Respondent, Mr Tufan relied upon the Rule 24 Notice. However, he conceded that the Judge had erred in requiring sole responsibility to have been present throughout the entire period that the sponsor was in the UK, but argued that, that error was not material. He argued that the Judge had considered the evidence in the round and for a significant period there had been sole responsibility on the part of the grandmother. He argued that if the Appellant could not succeed under paragraph 297, then she could not succeed under Article 8 and asked me to bear in mind that the sponsor had entered into a voluntary arrangement, whereby she came to the UK leaving the Appellant in the care her parental Grandmother.
My Findings on Error of Law and Materiality
11. In the case of TD (paragraph 297 (i) (e): "sole responsibility") Yemen [2006) UKAIT 00049, at [28], the Tribunal noted that sole responsibility for the purpose of paragraph 297 (i) (e) did not need to last any particular duration and the Tribunal noted that the Court of Appeal in the case of Nmaju v Secretary of State for the Home Department [2001] INLR 26 had declined to place any gloss on the Rule. However, it is clear, having read First-tier Tribunal Judge Clarke's decision in its entirety, that although Judge Clarke indicated at [10] that the Tribunal must consider the circumstances appertaining at the date of the refusal which was the 16th October 2014, in fact, the First-tier Tribunal Judge has when considering the issue of sole responsibility, considered that it was necessary for sole responsibility to have existed throughout the entire time that the sponsor had been in the UK since March 2002. The Judge [21] had found that the level of contact was not as frequent as claimed in 2002, and took account of the fact that the sponsor was unable to obtain work in the United Kingdom from 2002 through to 2009 and was homeless for a period of time and he was not persuaded the sponsor's claim to have phone contact, as she claimed in evidence. When considering whether or not there was sole responsibility, she did not accept that sole responsibility existed for the reasons which she set out between [28 and 39] inclusive. In this regard, the Judge took account of the fact that the paternal grandmother had borne the greater financial burden over the years for the maintenance of the Appellant and on her own evidence the sponsor said that she was unable to obtain employment between 2002 and 2009 and that during that time the financial burdens borne by the grandmother. At [31] the Judge accepted that the Appellant now contributed financially to the upkeep of her daughter, but found that it was clear there was a shared financial contribution from the sponsor and Grandmother towards the maintenance of the Appellant with the Grandmother solely maintaining the Appellant from 2002 to 2009 and that the financial arrangements indicated a sharing of parental responsibility for the Appellant. In this regard, the Judge further erred [38], in relying upon the fact that the seven years the sponsor had not visited the Appellant in Jamaica or applied to come to visit the sponsor in the UK between 2002 and 2009, as being a reason why sole responsibility did not exist as at the date of the refusal. The Judge in this regard found that there had been visits since 2009, but it is then not considered the circumstances appertaining as at the date of refusal in that regard.
12. In that regard, the Judge has clearly erred in requiring that the sponsor provide financially for the upkeep of her daughter throughout the time she was in the UK in 2002 and in seemingly requiring contact as claimed throughout the period. The Judge has not looked specifically at the situation as at the date of the refusal. In this regard, although clearly the pre-existing circumstances and the extent to which the sponsor had contributed financially for her daughter previously and had contact with her, may well be relevant to the question as to the circumstances appertaining as at the date of the refusal, it was not a requirement that the sponsor maintained or contacted her daughter throughout the entire period.
13. Further, the First-tier Tribunal Judge has erred at [34] in relying upon the fact that the Appellant's maternal grandmother dealt with matters such as ensuring the Appellant had breakfast, going to school, something to eat during the day, signing permissions that school required, supervising homework on the basis she was looking after the Appellant on a day-to-day basis, as being a reason why responsibility was shared, and has failed to take into account in this regard the judgment of the Tribunal in the case of TD (Yemen) [49] that "work where one parent has disappeared from a 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 the day-to-day care of the child would necessary be under taken by others-relatives or friends abroad-who will look after the child?" and the finding of the Tribunal in TD (Yemen) at [50] that "the fact that day-to-day decision-making for a child-such as 'getting the child to school safely and on time, putting the child to bed, seeing what it has for breakfast, or that it cleans its teeth, or has enough clothing, and so forth' (Ramos, per Dillon LJ at page 151)-rests with the carer aboard is not conclusive with the issue of sole responsibility" and that therefore the Rules envisage that a parent settled in the UK may have sole responsibility for a child's upbringing in another country, and what is in fact required is a consideration as to who makes the important decisions in respect of the child's life, rather than simply consideration of who provided the day-to-day care.
14. Further, the finding of First-tier Tribunal Judge Clarke at [49] that "I am not persuaded that the Appellant has family life is envisaged by Article 8. This is because of refusal of entry clearance does not interfere with family life between the sponsor and the Appellant but that simply maintains the status quo", is clearly wrong. The question as to whether or not there is a disproportionate interference with family life is entirely separate from the questions as to whether or not family life is engaged. Further, in considering the proportionality question, the Judge attached considerable weight to the fact that the Appellant was unable to meet the requirements of the Immigration Rules. However, for the reasons stated above the Judge has misapplied the Immigration Rules, and thereby, the Judge's consideration of the balancing exercise for the purpose of Article 8, is similarly tainted by that error.
15. I do find that these errors are material, in that it cannot be said that the decision would necessarily have been the same, had the errors not have been made, given that the Judge has fundamentally misapplied the test in respect of sole responsibility and the evidence from the sponsor and the Appellant was that there had been a change in circumstances since 2009.
16. The decision of First-tier Tribunal Judge Clarke therefore does contain material errors of law and is set-aside with no preserved findings of fact.

Notice of Decision
The decision of First-tier Tribunal Clarke does contain material errors of law and is set aside.
The matter is remitted back to the First-tier Tribunal to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Clarke.
I make no order in respect of anonymity, no such order having been sought before me.

Signed

Deputy Upper Tribunal Judge McGinty Dated 24th January 2017