Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15022/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st September 2016
On 30th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Entry Clearance Officer - bogota
Appellant
and

F A B S
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Ms R Akther, Counsel, instructed by Thoree & Co Solicitors

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. Although the Entry Clearance Officer is the Appellant in these proceedings I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a citizen of Ecuador, applied for entry clearance as a dependent child of his mother, who resides in the UK. The Appellant appealed to the First-tier Tribunal against the decision of the Entry Clearance Officer (ECO) to refuse that application. The basis for the refusal was that the ECO was not satisfied that the Sponsor had sole responsibility for the Appellant in accordance with Appendix FM paragraph EC-C.1.1 of the Immigration Rules.
3. In a decision dated 21st March 2016 First-tier Tribunal Judge Moxon allowed the appeal on the basis that he was satisfied that the Appellant met the requirements of the Immigration Rules and that the Sponsor had shown that she does have sole responsibility for the Appellant.
4. The Entry Clearance Officer appealed against that decision and Permission to appeal was granted on 15th August 2016 on the basis that it is arguable that the judge erred in finding that it is more likely than not that the Sponsor has continuing control and direction of the Appellant's upbringing in light of the adverse credibility findings made in relation to the Sponsor.
5. The background to this appeal is that the Appellant was born on 20th June 1999. The Sponsor says that she was in a relationship with the Appellant's father but that that ended when the Appellant was 6 months old and there had been no contact since that save for her having tracked him down to obtain custody to allow her to travel abroad with the Appellant.
6. The Sponsor claims that she came to the UK in March 2003 in order to work to save money to pay her husband's debts leaving the Appellant in the care of her grandmother, the Appellant's great-grandmother. The Sponsor says that she intended to return to Ecuador but in March 2007 met her current husband and began a relationship with him and they married in May 2012. She sought leave to remain as a result of her marriage but was refused and returned to Ecuador. She was granted leave to enter the UK on 4th November 2014 on the basis of her marriage but the Appellant's application was refused, that decision is the subject of this appeal. In January 2015 the Sponsor returned to the UK pursuant to that grant of entry clearance.
7. The Appellant's case is that his great-grandmother died on 1st April 2015 and since that he has been cared for by his uncle. The Sponsor says that she has been in charge of all decisions in relation to the Appellant's education, always maintaining contact with her grandmother while she cared for the Appellant and that she regularly sent money to her grandmother and to the Appellant's uncle.
8. The judge considered the oral evidence of the Sponsor and the Sponsor's husband and the documentary evidence. At paragraph 27 of the decision the judge said:
"Taken in isolation the Sponsor is not a credible witness. Her immigration history is deeply flawed and I do not accept as plausible her explanation for how she managed to enter the country. I find as far more likely than not that she would have either used forged documentation or that she would have fled from the hospital. I also take into account that she failed to return to the Appellant upon paying off her debts and again upon the death of her grandmother. I note that she has failed to provide the school reports that are forwarded to her although accept that the necessity of doing so would not have been immediately obvious to her. I do note with some concern that the reports are not emailed directly to her by the school which is something that I would expect. I note that there is no documentary evidence of communication between the Appellant and the Sponsor although she offered to show contents of her phone during the hearing."
9. The judge went on to find that the fact that the Sponsor had chosen her life with her husband in the UK over a life in Ecuador with the Appellant damaged the Appellant's case but accepted that it does not follow that the Sponsor was not maintaining control and responsibility over his upbringing albeit from afar [28].
10. The judge went on to give the documentary evidence some weight [29] and went on to say:
"More significantly I note the evidence of [the Sponsor's husband]. He is not subject to adverse credibility findings. His evidence in relation to the contact between the Appellant and Sponsor, and the influence she has on his upbringing is corroborative of the Sponsor's account in that regard. I find his evidence to be credible and persuasive."
11. The judge went on at paragraph 30 to specify elements of the Sponsor's husband's evidence which he found credible. The judge accepted that money has been transferred and that it is far more likely than not that this would have been for the support of the Appellant. The judge considered the Sponsor's regular visits to Ecuador since the regularisation of her immigration status to be supportive of her asserted relationship with the Appellant.
12. The judge concluded at paragraph 33:
"In summary, I do have some reservations when considering the evidence submitted on behalf of the Appellant and find that the Sponsor's credibility has been substantially undermined. I remind myself however of the burden of proof. I balance the adverse credibility findings with aspects of the Sponsor's evidence that I find to be credible and reliable, for example her role in the choice of his schooling, her transfer of money, her determining whether he could go on school trips and her approach to discipline. Taken together with the documentary evidence and in particular the evidence of [the Sponsor's husband], I find as more likely than not that she does have continuing control and direction of the Appellant's upbringing including making all the important decisions in his life and that she has therefore satisfied the definition of sole parental responsibility as provided in TD. I therefore find that the Appellant does meet the requirements of the Immigration Rules as outlined above."
Error of Law
13. In the grounds of appeal to the Upper Tribunal it is contended on behalf of the ECO that there was a severe lack of evidence in the Appellant's case and that the requirements set out in guidance given by the Upper Tribunal in the case of TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049 had not been demonstrated. It is contended that the Sponsor made a personal choice in leaving the Appellant in Ecuador and coming to the UK and in remaining with her husband rather than returning to Ecuador to be with her son and that this does not demonstrate that she is responsible for the Appellant in making him a priority in her life. It is further contended that the Judge erred in that he found that the Sponsor's evidence lacked credibility but accepted the Sponsor's husband's oral evidence whenever his evidence did not host any documentary evidence to substantiate his claims and it is submitted that his overall evidence is feeble. It is contended that the Sponsor failed to return to the Appellant on many occasions, in particular when his grandmother passed away when he would have required a mother as emotional support. It is contended that the Appellant has spent his entire life in Ecuador and lives with his uncle and there is no reason why these arrangements cannot continue with the financial support of the Sponsor and that there are no serious and compelling family or other considerations making the Appellant's exclusion from the UK undesirable.
14. At the hearing before me Mr Kotas relied upon the grounds of appeal and said that he had nothing further to add.
15. Ms Akther submitted that the credibility findings in relation to the Sponsor concerned her entry to the UK and her general credibility but did not go to the Sponsor's relationship with the Appellant or to the issue of sole responsibility. She submitted that this was otherwise a comprehensive decision. She contended that the judge did not have to accept all of the evidence but pointed to the fact that on balance the judge found that the test had been met and the judge applied the right test. She pointed out that the judge accepted the Sponsor's husband's evidence. She submitted that the other elements of the grounds did not relate to the test or to the evidence before the judge. She submitted that there was nothing wrong or perverse in the judge's decision, that the judge took everything into account and that overall there are sufficient positive findings.
16. I agree with Ms Akhtar's submissions. The judge found that the Sponsor's evidence was not credible because of her immigration history and noted the absence of some elements of documentary evidence. However, as against this the judge clearly attaches very significant weight to the oral evidence of the Sponsor's husband which corroborates that of the Sponsor. The judge also attaches significant weight to the documentary evidence before reaching a decision clearly applying the correct burden of proof.
17. I find that the summary at paragraph 33 gives a very clear assessment of the evidence the judge has taken into account and is a very clear explanation as to why the judge found some evidence more credible and reliable. It is clear that the evidence accepted by the judge was, in the judge's view, sufficient to tip the balance in favour of the Appellant in this case.
18. In these circumstances I am satisfied that the judge took into account all of the evidence before him and reached a decision which was open to him on that evidence. There is no error of law in the judge's decision.

Notice of Decision
There is no material error in the decision of the First-tier Tribunal Judge.

The decision of the First-tier Tribunal Judge shall stand.

Signed Date: 29 September 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I maintain the fee award made by the First-tier Tribunal Judge.

Signed Date: 29 September 2016

Deputy Upper Tribunal Judge Grimes