Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003835

First-tier Tribunal No: HU/56316/2023
IA/00856/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

SHICHENG LI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C. Yeo, instructed by LB Solicitors
For the Respondent: Mr B. Hulme, Senior Home Office Presenting Officer

Heard at Field House on 13 May 2025

DECISION AND REASONS

1. The Appellant is a citizen of China currently aged 18. He is the son of the Sponsor, Ms Zhu. By way of an application dated 2 March 2023 he made an application for entry clearance as a dependent child of his mother under Appendix FM. The Respondent refused that application on 26 April 2023 on the grounds that Ms Zhu did not have sole responsibility for the Appellant. The First Tier Tribunal upheld that refusal in a decision which I subsequently found on appeal to contain an error of law. This matter then came before me again for a re-hearing.
2. For the reasons set out below, I allow the appeal.
FTT’s Determination and procedural history
3. The Appellant’s appeal was heard by FTTJ Bell (‘the Judge’) on 5 January 2024 and refused in a determination dated 21 January 2024. Essentially, the Judge did not believe the evidence before them that the Sponsor was exercising sole responsibility for the Appellant. In particular, the Judge relied heavily upon an application form for a visit visa filed in 2019 in which it recorded that the Appellant was living with his father (the Sponsor’s ex-husband) in China and that they had been living together for a decade.
4. The Appellant appealed against the Judge’s determination and was granted permission by Upper Tribunal Judge Meah on 2 September 2024. On 13 March 2025 I allowed the Appellant’s appeal, having found that the Judge’s decision contained material error of law. In particular, I concluded that the Judge had required the Appellant to prove a negative about his father’s absence from his life and / or failed to give reasons for rejecting the father’s evidence to that effect. I found that insufficient reasons were given by the Judge for rejecting the evidence before them and had relied on speculative reasoning about the father’s role in the Appellant’s life.
5. The result of my findings in the error of law determination is that there were no findings preserved from the First-tier Tribunal’s determination when this matter came back before me for a rehearing.
Hearing
6. At the hearing, the Appellant was represented by Mr Yeo and the Respondent by Mr Hulme. I thank them both for their helpful submissions. At the outset of the hearing it transpired that Mr Yeo and I were working from a 342-page bundle while Mr Hulme was working from a bundle in excess of 500 pages. In the event, this did not cause undue difficulty during the hearing and I have no reason to believe that the parties did not all have the same documents.
7. At the outset of the hearing I asked the parties to confirm their positions in light of the fact that the Appellant had turned 18. Both parties agreed that it made no difference to the matters for me to determine. That must be correct, as Appendix E-ECC.1.2 provides that “The applicant must be under the age of 18 at the date of the application”, which the Appellant was.
8. This appeal concerns a single issue, namely whether the Sponsor “has had and continues to have” sole responsibility for the Appellant, within the meaning of E-ECC.1.6. While I was invited in the alternative to consider whether there were serious or compelling family or other considerations under E-ECC.1.6(c), it has not in the event proved necessary for me to determine the point.
9. Ms Zhu attended the hearing and gave evidence via an interpreter. She adopted her witness statement and was cross-examined. Her evidence is recorded in full in the Tribunal’s record of the proceedings, so I only set out a summary here. In short, she addressed some of the documents in the bundle, explaining that she sent money to her parents who in turn take it out via ATMs. She explained that the WeChat messages provided were not comprehensive; they were later characterised by Mr Yeo as a ‘snapshot’, which is an accurate summary of her evidence. She also stated that she had not filed WeChat screenshots including video calls as these did not have text. She was clear that the 2019 application form was not accurate as, while he had been living in the address given on the form for the preceding ten years, he had not been living with his father for that period. She explained that the form was prepared by a travel agent. She also explained that contact with her ex-husband was arranged via the parent of one of the Appellant’s classmates. She paid the father back for the cost of the trip. She explained that the Appellant could not continue to live with his grandparents as they were ill, her mother had problems with vertigo after the pandemic and her father had heart problems, for which he had needed surgery.
10. Ms Zhu’s husband, Li Qingqing, attended and gave evidence in line with his witness statement. He confirmed that Ms Zhu’s parents were deteriorating in health. Both Ms Zhu and Mr Qingqing gave evidence that they had last visited the Appellant in China in February 2025.
11. Mr Hulme then gave closing submissions, inviting me to dismiss the appeal. He relied on the refusal letter and Respondent’s review. He argued that it was more likely that the parents were sharing parental responsibility together with the grandparents. He argued that there were inconsistencies in the Appellant and Sponsor’s case, relying on the statements made in the 2019 application. He criticised the fact that the account regarding the Appellant’s classmate’s father had not been raised before this hearing. He characterised the letters provided by a community organisation and the school which I discuss below as “self-serving” and that the evidence of contact between the Appellant and Sponsor had been edited. He criticised the lack of documentary evidence of video calls. He also submitted that the grandparents could reasonably have provided letters or statements but failed to do so. He also argued that, especially in the absence of medical evidence confirming the grandparents’ ill-health, there were no seriously compelling circumstances for the purposes of E-ECC.1.6(c).
12. Mr Yeo then gave closing submissions. He addressed me on TD (Yemen) (Paragraph 297(i)(e): sole responsibility) [2006] UKAIT 49. He particularly relied upon paragraphs 49-52 of that decision, which I discuss further below. He also addressed me on the Respondent’s guidance, noting that it accepts that sole responsibility can be relatively recent. His submission was that Ms Zhu had had sole responsibility for a very long time. In the alternative, he submitted that even if the Tribunal found that the father was sufficiently involved in 2019, sole responsibility has been established at the time of the application and continues to date. He referred to the evidence of Ms Zhu taking responsibility for the Appellant, noting that it had not been put to the witnesses that they were lying. He described the father being in China briefly between 2019 – 2021 and having involvement with the 2019 application, about which the Sponsor does not know a great deal. He explained that the father’s written evidence was consistent with the mother’s evidence of his limited involvement. In response to the ‘self-serving’ point, he explained that they have been requested in order to provide evidence for this hearing, but this did not mean that they were inauthentic or untrue. He addressed the ATM withdrawals and WeChat messages. He also took me to some medical documents concerning the grandparents, which he submitted was consistent with the witnesses’ evidence. He also referred me to the evidence showing that the father had been in Singapore prior to 2018 and from 2022 onwards, which he submitted showed that he could not have been living with the Appellant for a decade before 2019. He submitted that, given the declining health of the grandparents, the Appellant could make out seriously compelling circumstances but did not need to do so given the ability to meet the sole responsibility test.
13. At the end of the hearing I reserved my decision.
Disposal
14. In order to determine whether the appeal should be allowed, I must answer two questions: first, whether the Appellant’s evidence (including the documentary evidence and evidence of his witnesses) should be accepted and, second, whether that evidence demonstrates that Ms Zhu has had sole responsibility.
Factual findings
15. I accept the Appellant’s evidence and that of his witnesses. Ms Zhu was a very persuasive witness. Her evidence was specific, clear, and consistent with the documentary evidence. She was able to give detailed responses even on matters which took place many years earlier, such as how the Appellant’s 2019 trip to the UK was financed. She also showed some emotion when discussing the father’s absence from the Appellant’s life, which spoke to a genuine depth of feeling about his absence from their son’s life. Her evidence was consistent with that of her husband, who also gave no reason for me to doubt his evidence. I am not concerned by the suggestion that Ms Zhu ‘edited’ the WeChats by removing (or not providing) screenshots of the multiple video calls which she said she held with her son and parents. There are a few remaining video calls within the WeChat record and I accept as plausible that Ms Zhu would consider that – absent any transcript – this was not necessary as part of the documentary record.
16. The Appellant has provided a witness statement. He was not called to give evidence nor did the Respondent suggest that she would have wished to cross-examine him. His evidence is consistent with the documentary record and the evidence of the other witnesses. While the burden of proof is on the Appellant, I note that the Respondent did not suggest that these witnesses were lying. In any event, I see no reason to consider that they have lied or that their evidence is unreliable.
17. Turning to the documentary evidence, I have been provided with bank statements (in Chinese and English translations) which relate to an account in the name of the Sponsor. The statements date from 2014 to 2023. They show regular cash deposits and ATM withdrawals. While it is not clear who is making the deposits and the withdrawals, this is at least consistent with Ms Zhu’s evidence that she provides financial support and her parents (whom Ms Zhu stated are not confident using technology) withdraw money from the bank in cash.
18. The Appellant and Ms Zhu’s evidence is supported by the WeChat record. While the chats in the bundle are only a ‘snapshot’, they reflect Ms Zhu playing a consistent and active role in her son’s life. I note in particular her being consulted by the school as his primary carer, her involvement in decisions about vaccination, her arranging and paying for tutoring, as well as day to day support with everything from homework to the Appellant taking taxis. I accept Mr Yeo’s submission that some messages from the school, though poorly translated, show that Ms Zhu was consulted about disciplinary matters. I consider that this record goes beyond Ms Zhu being a loving and active parent but goes further, showing her exercising control and direction about her son’s education, health, discipline, and wellbeing.
19. The Appellant has provided a contract of life insurance which Ms Zhu applied for, insuring his life in 2015. This is consistent with Ms Zhu taking responsibility for major decisions about the Appellant’s life at that date.
20. There are some photographs of the Appellant and Ms Zhu together at different stages of the Appellant’s childhood in the bundle. I do not put any significant weight on these photographs, which merely confirm that Ms Zhu has been present in her son’s life.
21. I have been provided with a certificate from the Hedong Community Neighborhood (sic) Committee of Kouqian town, which refers to the Appellant living with his grandparents at the address given in the latest entry clearance application form. This does not indicate who has responsibility for the Appellant but is consistent with his account. More relevantly, there are letters from his schools. One is a letter from Kouquian Town Primary “Schoop”. I take the last word to be a mistranslation as the contents of the letter clearly refer to it coming from a school. It confirms that the Appellant “set his mother Zhu Hongyan […] as his contact and communication person to the school”. This does not indicate when the Sponsor became his primary contact at school and suggests that the Appellant made the request himself (which is surprising as he would have been primary school age at the time). However, it is nevertheless consistent with the Appellant’s case on sole responsibility as it shows Ms Zhu being the sole contact with his school. I put somewhat greater weight on the certificate of supervision from Yongji Middle School which confirms that, when the Appellant was at that school, Ms Zhu was the person his school reached and communicated with. A further document from the same school confirms that the Appellant entered the Middle School in 2022 and again states that Ms Zhu was his designated contact person. I do not accept the Respondent’s suggestion that less weight should be given to these documents on the grounds that they are is ‘self-serving’; as R (SS) v SSHD (‘self-serving’ statements) [2017] UKUT 00164 (IAC) confirms, that expression tells us little or nothing. The Appellant acknowledges that the documents were written at his request, but I do not consider that this decreases the weight to be given to them in circumstances where there is no significant reason for me to doubt the Appellant’s veracity and that of his witnesses, and where the documents are mutually supportive.
22. I have also been provided with a confirmation of Entrusted Guardianship responsibility signed by Ms Zhu, entrusting responsibility for the Appellant to his grandparents. The document states that “specific entrusted guardianship matters and related rights and obligations shall be determined by (name of guardian) in consultation with me”. I do not consider that this suggests that the Sponsor necessarily shares responsibility with the grandparents to the extent of depriving her of sole responsibility; rather, it confirms that (as at 2017) the Sponsor was the person responsible for arranging the guardianship of the Appellant. That strikes me as something which is highly consistent with taking sole responsibility for the Appellant.
23. There is no dispute that the Sponsor and father have divorced; the divorce certificate is in the papers before me, as is the Sponsor’s marriage certificate to Mr Qingqing. I find that the father’s primary address has, throughout most of the Appellant’s childhood, been in Singapore. I have been provided with evidence of his employment history in Singapore from 2021 to 2022 (and prior to 2013). I have also been provided with a photograph of the father’s Singaporean driving licence issued in May 2021. I have been provided with his bank statements for 2023 confirming his address in Singapore. The Appellant has further provided his tax assessment documents for Singapore, confirming the father’s address in Singapore, from 2017-2018 and 2022-2023. This is strong evidence that the father was living in Singapore prior to 2019 and returned to China in 2019, where he remained due to the pandemic, before returning to Singapore in 2021.
24. I do not consider that the 2019 application is a sufficient basis for rejecting the mutually-supportive evidence of the Appellant, Sponsor, Li Qingqing, and the father, which I have found to be consistent with the other documentary evidence. I accept the Sponsor’s evidence that the application was prepared by a travel agent and is not a reliable record of the family’s living arrangements. I also do not consider that the application’s statement that “I live with my parent” and that he had lived at the address given for a decade necessarily meant that he had lived with his father, or that he had done so throughout the period. I accept that this document was poorly prepared by a third party without full knowledge of the family arrangements and do not consider that it substantially undermines the Appellant case. Even if I am wrong on this point, and the Appellant was in fact living with his father at the time, I consider that his mother has shown that, as at the time of the entry clearance application in 2023 and since, she has had sole responsibility for the Appellant.
25. Even if I am incorrect and the Appellant was in fact living with his father in 2019 and had done so for the preceding decade, I accept that by the date of the entry clearance application in 2023 the father had returned to Singapore and was not playing an active role in the Appellant’s life. I also accept that, by the time of the application, Ms Zhu was making the primary decisions about the Appellant’s life.
Sole responsibility
26. It follows from the factual findings I have made above that Ms Zhu had sole responsibility for the Appellant at the time of the 2023 entry clearance application and continues to have such responsibility.
27. In reaching this conclusion, I have had regard to the decision in TD (Yemen), which explains at §§49-52 that:
a. Where one parent has relinquished or abdicated responsibility for a child, the starting point must be that the remaining active parent has sole responsibility;
b. It makes no difference that the ‘active’ parent is in the UK, even though that means that the child’s day to day care will necessarily be undertaken by others.
c. The touchstone is whether the ‘active’ parent is exercising continuing control and direction in respect of the important decisions about the child’s upbringing.
d. Sole responsibility is a factual question to be decided in light of all the evidence.
e. Where both parents are involved in the child’s upbringing, it will be exceptional that one of them has sole responsibility.
f. If it is said that both parents are not involved in the child’s upbringing, one of the indicators will be that the other has abandoned or abdicated responsibility.
g. Others involved in the child’s upbringing may share responsibility, although not a parent.
28. The father has abdicated responsibility for the Appellant. I accept Mr Yeo’s submission that this can (and is indeed likely to) happen by way of neglect and omission rather than formal abandonment. The evidence which I have accepted shows that he has not played a significant role in the Appellant’s life. Conversely, Ms Zhu plays an active role, exercising control and direction over important decisions regarding the Appellant’s upbringing, including his education, health, discipline, and wellbeing. She has been the primary decision-maker for him in important matters in his life. The father has played no such role.
29. I also do not consider that the Sponsor shares parental responsibility with her parents. While they have been entrusted as guardians and live with the Appellant, it is clear that important decisions about the Appellant’s life have been made by Ms Zhu. There is no evidence before me to suggest that his grandparents play a role which is in any way analogous to that of Ms Zhu in the major decisions of his life, albeit they have clearly provided him with day to day care in her absence.
30. I therefore conclude that the Appellant meets the requirements of the Rules, in particular E-ECC.1.6. It follows that his appeal must succeed on Article 8 grounds. In the circumstances, I am not required to consider the question of serious or compelling considerations under E-ECC.1.6(c) or Article 8 outside the Rules.

Notice of Decision
The appeal is allowed.

Miranda Butler

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025