Alexey Pallovich Buydov v Entry Clearance Officer, Moscow
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Mr Justice David Richards,Lord Justice Ward,and |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1739 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2012/0956/AITRF |
| Date | 20 December 2012 |
[2012] EWCA Civ 1739
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL ASYLUM
AND IMMIGRATION CHAMBER
OA/04126/2010
Royal Courts of Justice
Strand, London. WC2A 2LL
Lord Justice Ward
Lord Justice Hughes
and
Mr Justice David Richards
Case No: C5/2012/0956/AITRF
Galina Ward (instructed by Landmark Chambers) for the Appellant
Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing dates: Wednesday 5th December 2012
This second appeal concerns the correct approach to an application for entry to the UK when it is made by a child on the grounds that his sponsoring parent has limited leave to remain with a view to settlement. The relevant Immigration Rule is paragraph 301(1)(b). Paragraph 301 is one of a series of provisions, which begins with paragraph 297, dealing with applications for entry made by children on the strength of the status of their parents. Several of these paragraphs, including 301(l)(b), employ the expression "parent….who has had sole responsibility for the child's upbringing". That is the expression which had to be applied in this case.
The applicant is now 20, but was a little short of 18 when the application with which we are concerned was made. He is the child of two Russian parents. He was brought up in Russia with them and is himself a Russian citizen. He was bom on 14 September 1992.
The applicant appears to have been several times to the UK. He came as a visitor when aged 11 in 2004, and attended Summer language schools in 2005, 2006 and 2007. Throughout that time he was living in Russia. Whilst still living there, he was entered as a boarding pupil at Wellington School, Somerset, for the school year 2007–8. He was then just rising 15 and went to start the two years' GCSE courses. He was granted a student visa for this purpose. By then, it seems that the marriage of his parents had either broken down, or was in the course of breaking down. In September of that year (2007) his mother formed a relationship with the gentleman who is now her husband; he is also originally Russian but is a consultant doctor working in England and a British citizen. However, whilst Mother found the school (on the internet), Father approved it, agreed to pay the fees, and shortly afterwards visited the appellant at it in February 2008. The Immigration Judge found that he had not simply been told by Mother what was happening, as she had asserted, but took a more active role than she suggested and maintained a genuine and active interest in the appellant's education.
Meanwhile, in January 2008, the appellant's mother came to live with her new partner in England. Mother and Father were divorced, via a consensual court procedure, in Russia in April 2008. Mother and her new husband married in July 2008. They live in England. Father continues to live in Archangel in Russia, where he also formed a new relationship. The appellant's maternal grandparents live not far away, also in Archangel.
As part of the divorce arrangements, Mother and Father entered in April 2008 into a written agreement as to the arrangements for their son, the appellant, which was lodged with the court. Under it they agreed that Mother should have (as translated):
"the guardianship over the Son till his becoming of age as well as sole responsibility for his upbringing, education, including the right of making important decisions about his life, education, defining place of residence, travel etc."
Father was said to retain his right to contact as he wished, "providing that he did not interfere with the decision making" mentioned, Mother agreed to place no barriers in the way of contact not less than three times per year, and Father agreed to pay maintenance for as long as the appellant was in full time education, including university education. The divorce decree duly records that there is no disagreement over property distribution or the guardianship of the child, as it also records that the parent residing separately from the child has both the right and obligation to "participate in bringing up the child" whilst the parent residing with the child has no right to prevent it. In due course, the Immigration Judge concluded that the agreement was approved by the Russian court and would no doubt be enforced by it if it were in dispute. The judge also adverted to the similarity of its wording to the terms of the UK immigration requirements and concluded, contrary to Mother's evidence, that it was "not unlikely" that one purpose, at least, of this agreement was to facilitate the appellant's application for settlement.
As the wife of a British citizen the appellant's mother was duly granted in August 2008 limited leave to remain with a view to settlement. She has since attained British citizenship.
After two years and with his GCSEs completed at the boarding school, the appellant moved in September 2009 to a Grammar School near to his mother's home for the sixth form. This was a day school and, unlike at the previous school, no fees were payable; the appellant apparently qualified under some local regime for non-fee schooling. The Immigration Judge found, contrary to the evidence of Mother, that she had not made this decision entirely unilaterally but had consulted Father; they spoke and met from time to time, and his conclusion was that what they now had in common was effectively limited to the appellant and his life. Up until then the appellant had spent much of the school holidays at the home which she shared with his stepfather, although he had also returned to Russia from time to time to see his father, grandparents and friends. From the summer of 2009 he lived with mother and stepfather in their household.
The Immigration Judge found that Father, despite the terms of the agreement, "retains some responsibility in practice for the appellant's upbringing" and that he continued to play "a fairly important part" in the appellant's life. He was ready and willing to provide a home for him if he needed it. He continued to maintain him. He saw him when he was in Russia. On such occasions, the appellant sometimes stayed with him and sometimes with his grandparents, preferring the latter not because of any rift with his father but because the relationship with Father's new partner was not good. It appears that Father is content that the appellant should continue to live as part of the household of Mother and Stepfather, and that he should make the application which he has made for admission to the UK with a view to settlement.
The appellant made that application, initially in this country, in September 2009. It could not be granted here because he did not have the right kind of existing visa or entry clearance, but only a student one. Accordingly, he returned to Russia in December 2009 for the purpose of making an out-of-country application for entry clearance. That application was refused by the respondent Entry Clearance Officer. The appellant challenged that refusal but failed in front of the Immigration Judge in the First Tier Tribunal on the grounds that Mother had not had "sole responsibility" for his upbringing. The proceedings since then have been a little complicated and it is not necessary to rehearse them. The upshot was that whilst the findings of primary fact of the First Tier Tribunal were accepted, it was common ground that there had been one error of approach by the Immigration Judge. Accordingly, the Upper
Tribunal re-determined the appeal, using the facts found by the Immigration Judge, supplemented by a little additional material. It too concluded that the appellant had not shown that his mother had had sole responsibility for his upbringing, because Father retained some responsibility for it. It is thus that the second appeal from that determination comes before us.
It is the fact that the appellant has remained in Russia, and that, at least for a period, his mother shuttled between England and Russia to be with him when she could. The Immigration Judge found that the appellant lived partly with father, partly with grandparents, and occasionally with an uncle. Except that that provides no thing to contradict the findings about Father's willingness to provide a home, and the appellant's fragile relationship with the new partner, what has happened since is not relevant to the question whether the conditions laid down by paragraph 301(l)(b) were met at the time of the application. It should also be recorded that there would have been no obstacle to the grant of a fresh student visa, providing that the conditions for such were met. That might well have meant, it seems, payment of school fees but we were told that the school which the appellant was then attending did charge fees, although the appellant had been attending under an arrangement for which he qualified under which none were levied on him. Apart from his application on the basis of his mother's contended-for sole responsibility, the appellant also applied on the two alternative bases (a) that his circumstances provided serious and compelling family considerations pointing to his admission, and (b) that his Article 8 rights would be infringed if he were not admitted. Those alternative grounds of application failed, essentially because he was in no sense without an alternative home and could have continued his studies in England, albeit without leave to enter with a view to settlement. There is no appeal against the refusal of entry on those alternative grounds, and no more need be said about them.
The Immigration Rules
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Upper Tribunal (Immigration and asylum chamber), 2023-10-27, UI-2023-002122
...sole responsibility. This guidance was adopted by the Court of Appeal, with minor elucidation, in Buydov v Entry Clearance Officer [2012] EWCA Civ 1739 at [18]-[19]. The Judge, as he noted at [6], heard oral evidence from the father and considered various documents in five separate bundles.......
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Upper Tribunal (Immigration and asylum chamber), 2023-10-18, UI-2023-002122
...sole responsibility. This guidance was adopted by the Court of Appeal, with minor elucidation, in Buydov v Entry Clearance Officer [2012] EWCA Civ 1739 at [18]-[19]. The Judge, as he noted at [6], heard oral evidence from the father and considered various documents in five separate bundles.......
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Upper Tribunal (Immigration and asylum chamber), 2020-07-17, HU/22168/2018
...case both parents) have been given limited leave to remain in the UK with a view to settlement. As observed in Buydov v ECO, Moscow [2012] EWCA Civ 1739 at [13], the condition of sole responsibility exists only where there is but a single sponsoring parent in the UK whom the applicant seeks......
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Upper Tribunal (Immigration and asylum chamber), 2016-09-15, OA/07590/2014 & OA/07592/2014
...set out. The appellants’ also contend that the Judge failed to consider the decision of the Court of Appeal in Buydov –v- ECO (Moscow) [2012] EWCA Civ 1739 which confirms that the concept of sole responsibility in paragraph 297(i)(e) requires a broad analysis on a case by case basis. The ap......
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What Is Sole Parental Responsibility In UK Immigration
...partial responsibility (which would of course preclude the parent in the UK from having sole responsibility). In Buydov v ECO Moscow [2012] EWCA Civ 1739, as part of their written divorce agreement, the parents had agreed that the mother would have sole responsibility for the claimant's upb......
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What Is Sole Parental Responsibility In UK Immigration
...partial responsibility (which would of course preclude the parent in the UK from having sole responsibility). In Buydov v ECO Moscow [2012] EWCA Civ 1739, as part of their written divorce agreement, the parents had agreed that the mother would have sole responsibility for the claimant's upb......