Rudolph v Entry clearance officer, Colombo
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 1984 |
| Date | 17 May 1984 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
Professor D C Jackson (Vice-President), Major R A K MacAllan, L W Chapman Esq.
A Mukharji for the Appellant.
D Howarth for the Respondent.
Amongst the cases referred to were:
SloleyUNK [1973] Imm A R 54.
MartinUNK [1978] Imm A R 100.
McKenzie (Unreported) TH/87477/81 (2659) of 21 April 1983.
HowardUNK [1972] Imm A R 93.
Children Parents separated one year after appellant's birth Year later mother came to United Kingdom Application to join mother refused and appeal dismissed as adjudicator not satisfied mother had had sole responsibility for appellant's upbringing nor that there were factors making exclusion undesirable HC 394 para 46 (e)(f)
The facts are set out in the determination.
Held: (i)Sole responsibility for a child's upbringing should not necessarily be ruled out if for a limited time during childhood it could not be proved. It was a matter of looking at the childhood as a whole and all the actions of the mother.
(ii) Here there was not the positive and precise evidence of regular contact, consultation and decision taking to find that the mother had had sole responsibility for the appellant's upbringing.
(iii) At the date of the refusal of the application for the appellant to join her mother her father was incapable of looking after her.
(iv) There were serious and compelling considerations making the appellant's exclusion undesirable.
Determination
The appellant, a citizen of Sri Lanka, appeals against a decision of an adjudicator (Mr V Callender) dismissing her appeal against the refusal of an entry certificate to join her mother for settlement.
The appellant, Dilkish Rudolph, was born on 5 April 1965. In 1966 her parents separated, Dilkish and her mother (the sponsor) going to stay with Mr Rudolph's parents. In 1967 the appellant's mother left Sri Lanka and came as a student to this country. Dilkish stayed on in Sri Lanka living with her paternal grand-parents. In 1973 her grandfather died and in 1976 her grandmother died. In 1976 Dilkish went to the Good Shepherd Convent where she was both at the date of decision and the dates of the hearings before the adjudicator and before us.
Meanwhile Dilkish's mother had remained in this country. Since 1971 her leave to remain has been free of conditions. On 29 September 1980 Mrs Rudolph obtained a decree nisi of divorce from the English High Court. On 5 December 1980 the appellant made the application the subject of the present appeal and the appellant, the appellant's mother and a long standing family friend Mr M S Ossman were interviewed in Colombo. Mrs Rudolph's fiance, Mr R A Watson, accompanied her to the interview but was not asked to participate in it.
The applicable immigration rules
These are set out in HC 394 paragraphs 42, 43 and 46 and those pertinent to this case are set out in paragraph 46(e) and (f). So far as is relevant paragraph 46 reads:
46. If the requirements of paragraphs 42 and 43 are satisfied, children under 18, provided that they are unmarried, are to be admitted for settlement:
(e) if one parent is settled in the United Kingdom or is on the same occasion admitted for settlement and has had the sole responsibility for the child's upbringing, or
(f) if one parent or a relative other than a parent is settled or accepted for settlement in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirablefor example, where the other parent is physically or mentally incapable of looking after the childand suitable arrangements have been made for the child's care.
The two issues for decision are:
(i) whether within the meaning of paragraph 46(e) Mrs Rudolph has had the sole responsibility for the appellant's upbringing; and
(ii) whether the appellant's circumstances bring her within the terms of paragraph 46(f).
The appellant will succeed if she is brought within either paragraph.
The adjudicator's decision
After reviewing the evidence the adjudicator said:
I consider first paragraph 46(f). In the case of Dixon (843), it was held by the Immigration Appeal Tribunal that evidence that the exclusion of an appellant is undesirable must be of a serious or compelling nature. I find that there is no evidence of that kind in the instant case, particularly having regard to the fact that for the 4 years preceding the application the appellant had lived and been educated in a convent with the knowledge and approval of her mother and with a watchful eye being cast on her from time to time by Mr Ossman. I therefore find that the appellant is not eligible for admission to the UK under paragraph 46(f).
I now consider paragraph 46(e), which requires in the instant case that the mother h s had the sole responsibility for the appellant's upbringing. It is in my view clear from the authorities that this is more than a reference to the provision of finance. In the case of Sloley (1973) Imm. AR 54, it was held that in addition to the question of financial support there must be cogent evidence of genuine interest in and affection for the child by the parent. In the case of Martin (1978) Imm AR 100, stress was laid on the desirability of evidence to show continuous consultation between the...
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TD (paragraph 297(I) (e): 'Sole responsibility') Yemen
...Clearance Officer [2002] UKIAT 07463 Ramos v Immigration Appeal Tribunal [1989] Imm AR 148 Rudolph v Entry Clearance Officer, Colombo [1984] Imm AR 84 Secretary of State for the Home Department v Pusey [1972] Imm AR 240 Sloley v Entry Clearance Officer, Kingston [1973] Imm AR 54 Legislation......
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Upper Tribunal (Immigration and asylum chamber), 2014-10-09, OA/01803/2014
...the sickness insurance required under the EEA regulations. The Judge went on to say; ‘It was said in the case of Rudolph v ECO, Columbo [1984] Imm AR 84 that the underlying purpose of the immigration rules is to unite families’ and that the purpose of the EEA regulations is to allow free mo......
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TD (Paragraph 297(i))
...of Emmanuel v SSHD [1972] Imm AR 69; Martin v SSHD [1972] Imm AR 71; Sloley v ECO, Kingston [1973] Imm AR 54; and Rudolph v ECO, Colombo [1984] Imm AR 84. 9 Our starting point is the decision in Emmanuel v SSHD [1972] Imm AR 69 which illustrates the correct approach to the issue of “sole re......
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Upper Tribunal (Immigration and asylum chamber), 2006-05-24, [2006] UKAIT 49 (TD (Paragraph 297(i)(e): sole responsibility))
...of Emmanuel v SSHD [1972] Imm AR 69; Martin v SSHD [1972] Imm AR 71; Sloley v ECO, Kingston [1973] Imm AR 54; and Rudolph v ECO, Colombo [1984] Imm AR 84. Our starting point is the decision in Emmanuel v SSHD [1972] Imm AR 69 which illustrates the correct approach to the issue of “sole resp......