Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005593

First-tier Tribunal No: HU/62325/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

NANA AMA BAFOAH
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In Person
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 8 May 2025

DECISION AND REASONS

1. This is the re-making of the decision in the appellant’s appeal, following the setting aside, in a decision promulgated on 10 March 2025, of the decision of the First-tier Tribunal.

2. The appellant is a citizen of Ghana born on 5 July 2008. Following a previous refusal of entry clearance in December 2022, she applied, on 2 August 2023, for entry clearance to the UK to join her mother, Peace Abigail Asante, who had been granted limited leave to remain until 5 June 2025. It was stated in the appellant’s application that she currently lived in Ghana with her grandmother. The documentation accompanying the application included an affidavit in which her grandmother explained that her (the appellant’s) father was nowhere to be found after her birth, that her mother had been taking care of her needs in Ghana, and that she was no longer able to take care of the appellant herself due to her ill-health.

3. The appellant’s application was refused by the respondent in a decision dated 21 September 2023. The application was considered under paragraph EC-C.1.1 of Appendix FM to the Immigration Rules. The respondent was satisfied, from a DNA report which had been submitted, that the appellant and sponsor were related as claimed. However the respondent was not satisfied that the appellant had one parent who had had sole responsibility, and who continued to have sole responsibility, for her upbringing. The respondent reached that conclusion for several reasons. Firstly, because the appellant’s birth certificate named both her mother and her father and stated that her birth was registered on 19 July 2021 by her father, which was inconsistent with the evidence of her sponsor that her father was nowhere to be seen since after her birth. Secondly, because it was unclear why the sponsor had not visited her despite having had limited leave to remain since 2016 and when they had not seen each other for 12 years, and because there was no evidence of contact in person with the sponsor, no evidence that the sponsor provided the appellant with all the emotional, financial and other needs she had and no evidence that the sponsor exercised control over the major aspects of her life. The respondent noted that, whilst the appellant had provided letters from Morgan International Community School, those were all dated June and July 2023 and so had been produced for the purposes of the application, and none of the letters were addressed to the sponsor by name. Thirdly, the respondent noted that the DNA report was signed by an adult as the appellant’s guardian who was not her grandmother, and it was unclear what relationship she held with that person. In addition, money transfers had been sent to her grandmother as well as a person holding the same surname as the sponsor, and the respondent therefore considered that the appellant had other family in Ghana as well as her biological father. The respondent was also not satisfied that there were serious and compelling family or other considerations. The application was therefore refused under paragraph E-ECC.1.6(b) and (c) of Appendix FM. The respondent considered, furthermore, that there were no exceptional circumstances which would render the decision a breach of Article 8 on the grounds that it resulted in unjustifiably harsh consequences for the appellant and her family, and was not satisfied that there were any compassionate circumstances justifying a grant of entry clearance outside the immigration rules.

4. The appellant appealed against that decision. She elected to have the appeal considered on the papers rather than at an oral hearing. Her appeal came before a First-tier Tribunal Judge on 25 October 2024 and was considered without a hearing (the sponsor confirmed that the judge’s reference at [4] to an oral hearing was an error). The judge had before him the Home Office appeal bundle and the respondent’s review, together with some documentary evidence from the appellant. The judge noted that the respondent’s concerns had not been addressed by the appellant. In regard to the concern raised by the respondent about her birth having been registered by her father, the judge noted that the appellant’s mother had stated in a statement that the entry on the birth certificate was a mistake, but that she had not provided any further details as to why there was such a mistake. The judge was persuaded by the respondent’s submission that the appellant had not shown that her mother had sole responsibility for her. The judge observed that he was unable to find on the evidence before him that the appellant’s father was not involved in her upbringing. The judge found that the appellant had not shown that she met the requirements of the immigration rules and he dismissed the human rights appeal on that basis.

5. The appellant sought, and was granted, permission to appeal to the Upper Tribunal, following which the matter came before the Upper Tribunal sitting as a panel, on 27 February 2025. Ms Nolan represented the respondent at the hearing and the appellant appeared in person.

6. In a decision promulgated on 10 March 2025, the panel set aside the First-tier Tribunal Judge’s decision, as follows:

“ 9. Having heard from the sponsor and having sought clarification from her we had some concerns as to whether she had in fact understood that the appellant had chosen to have a papers determination of the appeal rather than an oral hearing, and whether she had fully understood the nature of the evidence which was required of the appellant, or at least recommended for the appellant to produce, to support the claim of sole responsibility. It was also clear that the sponsor wished to give oral evidence and she explained to us that she could try to obtain some supporting evidence.

10. We were satisfied that the judge had been in error in failing to go on to consider Article 8 outside the immigration rules, nor within that analysis or in any event any considerations relevant to the principles concerning the best interests of the child in line with the spirit of section 55 Borders, Citizenship and Immigration Act 2009 (per the respondent’s policy whilst accepting it has no territorial application). Indeed we note that he did not, either, specifically consider the ‘serious and compelling family or other considerations’ requirement in E-ECC.1.6(c). Given that there appeared to have been a failure by both the respondent and the judge to consider documents from the appellant’s school which specifically referred to the sponsor (pages 181 and 238 of the appeal bundle), and having regard to the concerns we have expressed at [9] above, we have decided to set aside the judge’s decision in so far as he failed to consider potentially material matters. The judge’s findings on sole responsibility, on the evidence available to him at the time, are preserved. However we do not exclude further findings being made if additional evidence is provided by the appellant/sponsor.

11. Ms Nolan had no objection to there being a further hearing for the appeal to be re-made, in order to give the appellant and sponsor an opportunity to produce further evidence. We advised the sponsor that she should consider seeking evidence to address the respondent’s concerns in the refusal letter.

12. The case will therefore be listed for a resumed hearing in the Upper Tribunal for the decision to be remade, on a date to be notified to the parties.”

7. The matter was listed for a resumed hearing on 8 May 2025 for the decision to be re-made in the appeal.

Hearing for the Re-making of the Decision

Documentary Evidence

8. For the hearing the sponsor produced some further documentary evidence, namely: copies of photographs of her recent visit to Ghana showing herself with her children and other family members; a short letter from her step-sister, Jennifer Asante; a short letter from her mother’s carer, Priscilla Appiah; a letter from Donald Arthur and a medical report for her mother. I also had before me the respondent’s appeal bundle, the appellant’s documentary evidence and the respondent’s review, all of which were contained in the 175 page stitched bundle which was before the First-tier Tribunal.

9. Ms Asante confirmed in her (undated) letter that she was the person who had been responsible for receiving money from her step-sister Abigail Peace Asante for the appellant’s upkeep until she married and left her home- town to live in another part of Ghana. She was now living quite far from the appellant and was therefore no longer responsible for receiving the money.

10. Ms Appiah confirmed in her (undated) letter that due to her illness, Madam Akua Korantemaa had not been able to care for herself and her granddaughter and she therefore took care of them both. She confirmed further that Abigail Peace Asante had been sending her money to support her daughter and mother.

11. In his letter dated 15 April 2025, Donald Arthur confirmed that he had known the sponsor from senior high school and had met her in London in September 2022 when he attended a training programme for his work, after having previously lost contact for 20 years. He stated that the sponsor had told him about the challenge of being a parent to her daughter who was without any proper parental care and that no one knew where her daughter’s father was as he had abandoned her after birth. He stated that he had agreed to assist the sponsor as being a guardian to her daughter and he visited her a couple of times at her school and took her to do her DNA test. He was not always able to be available for the appellant because of his work. He was aware that the sponsor’s mother had been bedridden for some time and was not capable of taking care of the appellant. He fared for the appellant because the community in which she lived was riddled with teenager pregnancy and substance abuse by the youth.

Oral Evidence

12. The sponsor, Ms Asante, gave oral evidence before me. She was cross-examined by Ms Lecointe. She confirmed that the photographs she had produced were taken during a recent visit to Ghana, from 23 March 2025 to 15 April 2025. She had gone there to see her daughter and also because her grandmother had died and she went to attend the funeral. She stayed in her family home where her grandmother had lived together with her two aunts, her aunt’s three grandchildren and her mother and daughter. Her daughter attended a boarding school during term time but lived in the family home during school holidays. Ms Asante said that she had travelled to Ghana with her two sons Shane and Samuel. The appellant had no contact with her father. The guardian named in the DNA report was her friend Donald who could be seen in one of the photographs. He lived in Accra and was her senior at school. She would contact him if she needed help and sometimes would contact him on WhatsApp to say hello. He used to see her daughter and she would go to stay with him in Accra but not any longer as he was so busy with his work. Ms Asante said that her visit to Ghana was the first in 13 years. She had not been able to go before because her partner, the father of her two boys, was not happy to hear anything to do with her daughter, and also it was difficult for her to go with her sons and was very expensive. It was particularly difficult to travel with Samuel when he was younger as he was autistic, but he was able to go on this occasion as he was older, although he did not like it and cried all the time and wanted to come back home. It was only her daughter who could calm him down when he was triggered. They just seemed to click. He was six years of age, almost seven. Ms Asante said that her sons knew her daughter from video calls and would speak everyday when she was at home. She also used to do video calls when she was out as it was not safe on the streets and she wanted to speak to them. Ms Asante said that she was the person who paid for her daughter to travel to and from school. She would pay Priscilla or some friends to collect her and take her back. Her daughter had just been discharged from hospital. She had malaria. She found out from Priscilla but did not know what was going on as she had tried calling the school but could not get any answer. As far as she was aware her daughter had been in hospital for a few days and had been discharged the previous evening. She did not contact Donald about it as she did not want to bother him because he was so busy.

13. In response to my additional questions, the sponsor said that she did not know why the school had not contacted her about her daughter. They usually contacted her but this time no one was picking up the phone. Ms Asante said she had not been with the father of her boys for three years. When I asked her why she had not gone to Ghana after she separated from him she said that she had tried to apply for her daughter to come here at that time and the process had been ongoing since then. Also she was not able to go because of Samuel. She was scared to take him. They went to Barcelona last year to try out going away with him. Shane wanted to see Ghana. When her grandmother died she took the opportunity to go to Ghana. I asked the sponsor why she had left her daughter behind in Ghana in the first place and she became upset. She said that she had not known that she was going to stay in the UK but things happened and she ended up overstaying here. She regretted not bringing her. She could not explain why she did not go back before she had her sons. She met her sons’ father three years after coming here.

14. Ms Lecointe made submissions before me. She relied on the respondent’s decision and submitted that the reference to a guardian in the DNA report inferred that the sponsor did not have sole responsibility for the appellant. She accepted that the sponsor may have had difficulties visiting the appellant earlier but the fact was that she had not seen her for 13 years. It was difficult to demonstrate sole responsibility over such a long period of time. Ms Lecointe submitted that she accepted the family dynamic and she accepted that there was a relationship between the appellant and her step-siblings and she did not dispute that the family life considerations had been overlooked by the respondent. She submitted that she left matters in the court’s hands. I asked if she would have any objection to the appeal being allowed outside the immigration rules and she said that she did not have any objections herself.

15. In response, Ms Asante said that she needed her daughter here. She needed her for Samuel as she could not sleep because of him. Samuel and his sister had clicked when they met in Ghana.

Analysis

16. I have no doubts as to the credibility of the sponsor’s evidence. She is clearly desperate to have her daughter in the UK with her, not only for herself but also because of concerns about her daughter’s safety and lack of parental care and because of the connection between her daughter and Samuel. Her evidence was clearly heartfelt and indeed Ms Lecointe accepted everything said about the family dynamics and the sponsor’s reasons for not having been able to go to Ghana until recently. She did not dispute anything set out in the statements. I acknowledge that the authors of the statements were not present to be cross-examined, but they all lived in Ghana and, given the lack of challenge by Ms Lecointe, I give weight to the statements and accept the contents.

17. I accept that the respondent’s specific concerns set out in the refusal decision have been addressed by the sponsor, and addressed adequately. I accept that there has been no contact between the sponsor and the appellant’s father and between the appellant and her father and that he abandoned her at birth. That has been the consistent evidence throughout, in the sponsor’s mother’s affidavit and the witness statements as well as the oral evidence. I accept the explanation given by the sponsor for her daughter’s father being named as the informant in the birth certificate. She has mentioned throughout her evidence that it was not in fact the appellant’s father but a friend who attended to obtain the birth certificate. In her ‘appeal reasons’ in her appeal to the First-tier Tribunal she explained that her daughter’s original birth certificate could not be found so she had to obtain another one and that a father’s name had to be provided to the Ghanaian authorities and she had no idea where the appellant’s father was, so she asked a friend instead. That was the explanation also given at the error of law hearing. I accept that it is true. I also accept the explanation for Donald Arthur’s name appearing in the DNA report as the legal guardian of the appellant, as provided by the sponsor and by Mr Arnold in his statement. I note that the signature in Mr Arnold’s letter matches the signature on the DNA report, at page 44 of the stitched bundle. I accept that Mr Arnold’s role in the appellant’s life is very limited and has become more limited recently due to his work and other commitments.

18. I also accept the sponsor’s explanation for the name of Jennifer Asante appearing in the money transfer receipts and accept that her role in the appellant’s life was also limited and that she was no longer living nearby in any event. She has provided a statement to that effect and the evidence in the statement has not been challenged by Ms Lecointe. I accept that the appellant has been living with her grandmother, but that her grandmother suffers from medical conditions following a stroke and is not in the same position as previously to care for her. In addition I accept the sponsor’s explanation for not having seen her daughter for 13 years, as indeed did Ms Lecointe. I accept that the sponsor had not initially intended to stay in the UK but then matters moved on and she became involved with a man who did not want to know about her daughter and did not want her to visit her daughter, and that she would have found the journey too difficult with her youngest child who suffered from autism in any event.

19. The respondent, in the refusal decision, states that the letters from the appellant’s school, Morgan International Community School, are all recent and are not addressed to the sponsor and so do not demonstrate that they were sent to the sponsor. The sponsor has explained in the ‘appeal reasons’ that most letters refer generically to parents and carers, rather than naming individual parents. I accept that that is entirely plausible. I also note that, as I pointed out at the error of law hearing, there are in fact some communications between the school and the sponsor in the appeal bundle and I refer in particular to the email at page 238 of the error of law bundle from the appellant’s grade 8 ‘homeroom teacher’ and the receipts for payment of school fees at pages 298 and 299 of the error of law bundle (which appeared in the respondent’s appeal bundle before the First-tier Tribunal). I accept the evidence the sponsor gave at the hearing that the school usually kept in touch with her, but that she had been unable to contact them about her daughter’s admission to hospital. She was clearly very distressed when talking about that.

20. In addition to the above I accept the evidence given by the sponsor at the hearing before me about her recent trip to Ghana and the special connection between the appellant and her son Samuel, and I have viewed the many photographs showing the sponsor and her three children together. I accept the sponsor’s evidence about her daily facetime calls to the appellant. There is no documentary evidence to support that account but I accept the sponsor’s oral and written evidence. I also accept that the sponsor sends money regularly to appointed people for the appellant’s upkeep, previously to her mother and Jennifer but more recently to her mother’s carer, Priscilla.

21. Taking all of the above together, I accept that there is family life between the appellant and the sponsor and her step-brothers, for the purposes of Article 8(1), despite the fact that they had not seen each other physically for most of their lives or for very lengthy periods of time. Indeed Ms Lecointe accepted herself that there was an existing family life. I accept that the respondent’s refusal to grant entry clearance to the appellant severely restricts and interferes with that family life. It is not realistic for it to continue by way of visits by the sponsor and her sons to Ghana, given the expense and considering Samuel’s autism. I accept that communication by WhatsApp or Facetime is not a proper substitute for family life enjoyed by the family being together.

22. I turn to the question of whether the appellant is able to meet the immigration rules and in particular if the sponsor can be said to have had, and to continue to have, sole responsibility for her. I have to agree with Ms Lecointe that it is very difficult for the appellant to show that the sponsor has been solely responsible for her given the fact that they have been apart for 13 or 14 years and have only just seen each other for the first time since the sponsor left Ghana. I have considered the guidance in TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049. I accept that the sponsor plays a significant role in the appellant’s life but it is difficult to accept that, whilst she provides for her financially and clearly has some contact with her school and pays her fees, and is in constant communication with her, she has had sole and continuing control and direction over her upbringing. The appellant has had, and continues to have, other carers in her life. Although her grandmother is elderly and has medical conditions, the evidence does not show that she no longer has influence or control over her life, at least shared control with the sponsor. The appellant lives in a house with other family members whom she sees on a daily basis and who no doubt influence her life. In the circumstances I am not able to accept that the sponsor has had, and continues to have, sole responsibility for the appellant’s upbringing.

23. The question of serious and compelling family or other considerations which make the appellant’s exclusion undesirable is difficult to determine. The appellant lives in a family home with other family members. Her grandmother has cared for her since she was a small child and no doubt continues to provide some limited care for her, within her abilities. There is also a carer, Priscilla, who looks after the appellant and her grandmother. The appellant is also no longer a small child but is almost 17 years of age and does not require the level of care that she did. Although mention has been made of criminal activity in the area where the appellant lives and of fears for her safety, there is nothing to show that that is anything more than a worry and concern rather than a realistic risk. There is no suggestion that the appellant has difficulties accessing food and other life essentials. She is receiving an education at a boarding school privately paid for by the sponsor. In terms of her overall circumstances in Ghana, therefore, it cannot be said that there are compelling reasons why she needs to leave Ghana and come to the UK. I cannot accept, therefore, that she meets the requirements of the immigration rules in that respect.

24. Accordingly I turn to consider whether the appellant can demonstrate exceptional circumstances which would render refusal of entry clearance a breach of Article 8 because it results in unjustifiably harsh consequences for herself and her mother and step-brothers. The public interest weighs against her in so far as she cannot meet the requirements of the immigration rules. However I do consider there to be exceptional and compelling circumstances in this case, albeit not compelling in terms of the requirements of paragraph E-ECC.1.6(c) of Appendix FM to the immigration rules, as mentioned above. The cumulative effect of the appellant’s lengthy separation from her mother, her close relationship with her step-siblings and in particular Samuel, the family issues in Ghana including her grandmother’s deterioration, the reasons for the lengthy separation from her mother and step-siblings, the sponsor’s clear distress at her continued separation from her daughter and the circumstance leading to them remaining apart for so long, all lead me to conclude that to prevent the appellant from joining her family in the UK would be disproportionate.

25. I would make clear that this is not a case of using Article 8 to circumvent the immigration rules. There are specific reasons why the appellant cannot meet the requirements of the immigration rules, as I have set out above, none of which involve any concerns about credibility and which are separate and different to the particular considerations and issues arising outside the immigration rules. The appellant has a family life with her mother and step-siblings, although at a distance thus far, aside from one family visit to Ghana. It would not be a proportionate response to the public interest considerations, in my view, to require that situation to continue, when the barriers to the family being together no longer exist and it would not be realistic to expect the sponsor and her two British sons to relocate to Ghana. The appellant’s best interests are, it would appear, to be together with her mother and step-siblings, albeit that there is no direct evidence from her and only that of the sponsor. The respondent has not raised any concerns about the sponsor’s ability to accommodate and maintain the appellant financially. Although there is no evidence, it is reasonable to expect that the appellant speaks English, but in any event that is not a material factor. Ms Lecointe did not have any submissions to make in regard to proportionality outside the immigration rules, and left the matter in the court’s hands. I intimated that I may be minded to allow the appeal and she had no particular objection.

26. For all these reasons, I am persuaded that refusal of entry clearance to the appellant is disproportionate and in breach of the appellant’s and sponsor’s Article 8 human rights.

Decision

27. The decision of the First-tier Tribunal having been set aside, the decision is re-made by allowing the appellant’s human rights appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025