Laurent Wa Mundeba v Entry Clearance Officer ? Nairobi
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Dawson |
| Judgment Date | 22 January 2013 |
| Neutral Citation | [2013] UKUT 88 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 January 2013 |
[2013] UKUT 88 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake
Upper Tribunal Judge Dawson
For the Appellant: Mr Rene instructed by Mountain Partnership
For the Respondent: Mr Norton, Senior Presenting Officer
Mundeba (s.55 and para 297(i)(f))
i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child's exclusion undesirable inevitably involves an assessment of what the child's welfare and best interests require.
ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning children…undertaken by…administrative authorities” and so by Article 3 “the best interests of the child shall be a primary consideration”.
iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State's IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.
iv) Family considerations require an evaluation of the child's welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child's life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:–
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a there is evidence of neglect or abuse;
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b. there are unmet needs that should be catered for;
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c. there are stable arrangements for the child's physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939.
The appellant, who is a minor born 14 December 1995, lives in Kinshasa in the Democratic Republic of Congo (DRC). His father, a soldier, separated from his mother in 2001/2002 and took with him both the appellant and his older sister. The appellant's other sister, Blandine, the sponsor in this appeal, remained with her mother until she died and thereafter came to the United Kingdom in 2005.
The sponsor heard nothing further about her father or other siblings following her arrival in the United Kingdom. In March/April 2010 a friend of hers, Mr Lumeto, came across the appellant in an orphanage on one of his visits to the DRC. The sponsor learned on making contact with her brother that their father, the appellant and her sister had moved to an area called Bukavu. The appellant became separated from them when fighting broke out some time in late 2008/early 2009. The appellant had been taken from Bukavu to Kinshasa by a woman who thought she was bringing him to join other members of his family. When she realised that the mother was dead and his sister had left Kinhasa she handed him to the Girl Guides Association who have been taking care of him since 13 January 2009.
The sponsor, who was born on 18 July 1990, was refused asylum by the Secretary of State in 2005 but was granted leave to remain on a discretionary basis. It is assumed that this was because of her age. On 30 March 2010 she and her daughter (who was born on 12 March 2007), were granted indefinite leave to remain on an exceptional basis outside the Immigration Rules.
On 20 March 2011 the appellant made application for entry clearance to settle with the sponsor in the United Kingdom. This was refused on 19 May 2011 for a number of reasons, including:
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(i) An insufficiency of evidence that he was related to the sponsor, with reference to paragraph 297of the Immigration Rules.
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(ii) There was no evidence such as a court order that the sponsor held sole responsibility for his care.
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(iii) The appellant had provided no official verifiable evidence to confirm the statement by the sponsor that the appellant's mother had died and that his father's whereabouts were unknown.
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(iv) There was no evidence to show the sponsor had visited him or that there was ongoing contact and no evidence that she had played a significant part in his upbringing. For this reason the Entry Clearance Officer was not satisfied that Blandine had had sole responsibility for the appellant's upbringing as required by paragraph 297(i)(e).
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(v) The appellant had provided no evidence that he was living alone outside the United Kingdom in the most exceptional, compassionate circumstances, or that he was experiencing particular problems such as health or social issues.
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(vi) The application had been considered under paragraph 352 of the Immigration Rules relating to family reunion and as a sibling, the appellant did not qualify. Although the sponsor had been granted leave to remain as a refugee for five years from November 2005, she no longer held refugee status as she had since been granted indefinite leave to remain exceptionally outside the Rules.
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(vii) Account had been taken of Article 8 of the Human Rights Act and although it was accepted the decision constituted limited interference with Article 8, it was a qualified right and the decision was justified and proportionate in the interests of maintaining an effective immigration control.
Pausing there, it is immediately apparent that the decision was flawed by a number of errors, both as the relevant requirements of the immigration rule that applied in the case of the appellant, his sister's status in the United Kingdom, and the very fact of their relationship. These were resolved by the time the appeal was heard before First-tier Tribunal Judge Talbot on 23 March 2012. On that occasion the presenting officer explained that reliance was not placed on the sole responsibility provisions under paragraph 297(i)(e) and furthermore, she conceded that DNA evidence produced by the sponsor supported the relationship.
The sponsor gave oral evidence, adopting two statements. The judge recorded her as having said that she had been subsequently granted asylum. That appears also to have been the understanding of the Entry Clearance Officer. This aspect was clarified before us by Mr Norton, who produced copies of the relevant letters from the Secretary of State confirming the position as stated above (paragraph [3]).
The sponsor explained as recorded in her first statement how Mr Lumeto, who works for a charity, travels to DRC to try and help trace people's relatives. It was he who discovered that the appellant was being cared for by the Girl Guides Association in about April 2010. The sponsor and appellant had been in contact since then. The person who had brought the appellant from the fighting to Kinshasa was called Leti. This had been done with a view to the appellant being reunited with his mother and sister. He had been unaware that his mother had died and his sister had left the country and so the decision was made to leave him in an orphanage run by the association. Contact is maintained by the sponsor using a mobile phone she had bought for him. They speak about four to five times a week and she also speaks to members of the charity to discuss his welfare. He is very lonely and was very happy when the sponsor made contact. He has no other family now and will be able to stay with the Association until he is 18. He does not receive any education as the charity only provides him with food, accommodation and medical care. He cries a lot when he speaks to the sponsor who sends him money through Western Union.
The sponsor herself is a single parent, has a four year old child who suffers from sickle cell anaemia and she is studying health and social care for which she undertakes work experience. She is supported through income support and DLA for her child, living in Housing Association accommodation. She has been unable to visit the appellant as she is too scared to go back and does not believe it would be safe for her or for her young daughter who has to see a doctor regularly.
Submissions made by the presenting officer argued that the letter from the Girl Guides Association did not actually confirm the appellant was living with them and there was no evidence from Mr Lemuto. It was argued the appellant may have other relatives in the Democratic Republic of Congo and the telephone records did not show that contact with the sponsor was on a daily basis as claimed. It was not believable the sponsor would not have gone over to the DRC to visit her brother.
By way of response Ms Wangui invited the judge to find the appellant credible and reminded him why the sponsor had not visited her brother in the DRC, where there was no one to protect him and there was a risk arising out of the recruitment of child soldiers.
In reaching his conclusions, the judge correctly directed himself that the relevant provision was paragraph 297(i)(f) of the Rules. He was satisfied that the sponsor and appellant were in regular telephone contact and that she sends him money on a regular basis despite her own slender means. He accepted that she is genuinely emotionally committed to her brother and wants him to join her in the United Kingdom. He...
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