TD (Paragraph 297(i))
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 24 May 2006 |
| Neutral Citation | [2006] UKAIT 49 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 May 2006 |
[2006] UKAIT 49
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Immigration Judge A D Baker
For the Appellant: Mr N Gobir, Counsel instructed by Kalee Lau & Co, Solicitors
For the Respondent: Mr G Russell, Home Office Presenting Officer
TD (Paragraph 297(i)(e): “sole responsibility”) Yemen
“Sole responsibility” is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child's upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child's upbringing, including making all the important decisions in the child's life. However, where both parents are involved in a child's upbringing, it will be exceptional that one of them will have “sole responsibility”.
The appellant (aged 17) and his two brothers (aged 15 and 14) are citizens of Yemen. They have lived since birth with their mother in Yemen. In August 2004, they applied for entry clearance to settle in the United Kingdom with their father who has lived here since 1976. They relied upon paragraph 297 of Statement of Changes in Immigration Rules, HC 395, in particular that they fell within paragraph 297(i)(e) on the basis that their father had “sole responsibility” for them. Their applications were rejected by an Entry Clearance Officer on 27 December 2004 on a number of grounds. They appealed to the Asylum and Immigration Tribunal and it was accepted that the only issue under paragraph 297 was that of “sole responsibility”. On 8 November 2005, Immigration Judge Halliwell dismissed their appeals concluding that responsibility for the appellants was shared between their father in the UK and their mother in Yemen. Thus, the “sole responsibility” requirement in paragraph 297(i)(e) was not met for each of them. An order for reconsideration was made on the basis that the Immigration Judge had arguably erred in law in reaching his conclusion on “sole responsibility”.
Before turning to that issue, we must first deal with a procedural matter which was raised by the Tribunal at the outset of the reconsideration hearing. It is plain from the “Application for Reconsideration” on file that the application was made solely in the name of the first appellant to the appeal as originally lodged with the AIT. Mr Gobir, who appeared for the appellants, informed the Tribunal that all three appellants intended to seek reconsideration of their appeals. That may well be so. Unfortunately, that was not what was done by those representing the appellants. For whatever reason, the application for reconsideration did not include the names of the second and third appellants in the appeal as originally filed. The effect is that their appeals are not now before the Tribunal for reconsideration. There has been no order for reconsideration in their appeals. We accept that this was unintended but the rules are there to be complied with and the oversight was no mere formality. It goes to the Tribunal's jurisdiction as to whose appeals are now before it for reconsideration. It may be, however, that our resolution of this reconsideration will, for all practical purposes, also resolve the substantive issues for the other two original appellants.
The Immigration Judge accepted the evidence before him, in particular, the oral evidence of the sponsor, the appellant's father. He accepted that the appellant (and his brothers) had lived separately from their father all their lives. They lived with their mother in Yemen. For the last 4 years they have lived rent free in a flat owned by their paternal grandfather. Their father spoke to their mother daily by telephone. Their father had “left all day to day care and control with the mother”. The Immigration Judge seems to have accepted the father's evidence that he was involved in “big decisions”. However, he noted that there had been “no very major decisions in the Appellant's [sic] lives to date”. He acknowledged, however, that the father had been consulted and involved in their schooling and would probably make a decision as to which University they should attend, not least because he would be paying the fees. Their father had spent very little time with the appellant and his brothers although there was a clear emotional bond between them. Their father only occasionally visited them in Yemen, perhaps every 4 to 5 years. Contact by telephone with them was extensive – he spoke to them weekly. Their father had, however, provided all financial support for the appellant and his brothers throughout their lives.
On the basis of this evidence, the Immigration Judge concluded at paragraph [28] that responsibility was shared between the appellant's mother and his father. Mr Gobir submitted that the Immigration Judge's finding on “sole responsibility” was not one he could properly make on the evidence before him. In effect, he submitted that the finding was perverse.
The applicable Immigration Rule is paragraph 297 of HC 395. The only issue before us is that of “sole responsibility”. It was not suggested that the appellant failed to meet the other requirements of paragraph 297 such as maintenance and accommodation and that he was a child under 18, unmarried and not leading an independent life. Paragraph 297(i)(e) provides as follows:
“297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
…
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; …”
The meaning of the phrase “sole responsibility” in, what is now, paragraph 297(i)(e) of HC 395 has given rise to a body of case law before the IAT dating back over 30 years and, more recently, a number of decisions of the Court of Appeal have provided guidance. Mr Gobir referred us explicitly to some of these cases and others are cited in the relevant passages in Macdonald's Immigration Law & Practice, I Macdonald QC and F Webber (eds), (6 th edn), 2005 at paras 11.89–11.92 to which he also referred us.
The cases struggle with the obvious difficulty that where there is a UK based parent – the sponsor – whom the child is seeking to join for settlement there will inevitably be others in the country of origin who de facto ‘look after’ the child. Usually these are relatives such as grandparents or aunts and uncles but they could, as in this case, be the other parent of the child concerned. As a matter of common sense, some responsibility for the child's life must rest with the carer in the country of origin.
We turn first to consider the leading Tribunal decisions 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 responsibility”. The appellant, who was 11, lived in St Lucia and sought entry clearance to join her mother who was settled in the UK. Her mother had left St Lucia to live in the UK when the appellant was 4. Initially, the appellant lived with her grandmother and when the latter died shortly before the application was made, she went to live with her aunt. The appellant's father lived in St Lucia about 10 miles from where the appellant lived. He had seen his daughter at least once recently but took no part in her life and made no financial contribution to her upkeep despite a request by the appellant's mother to do so. Her mother financially supported the appellant by sending money from the UK. It was accepted that the daily burden and responsibility of looking after the appellant fell upon her grandmother and latterly her aunt. The Adjudicator held that the appellant's mother had abdicated responsibility for her rather than delegated it to her grandmother and aunt. The IAT disagreed. In an important passage, the IAT set out what it saw as the indicators in the evidence that the mother retained “sole responsibility” for the upbringing of the appellant (at p 71):
“We have heard argument about the meaning of ‘sole responsibility’ and clearly the first sentence of [the relevant immigration rule] cannot reasonably be construed in its most strictly literal terms. It appears plain to us that there must be in nearly all cases some form of responsibility of the relative or grandmother with whom the child lives: the responsibility for seeing that the child attends school, the responsibility for seeing that the child is fed and clothed in as reasonable a manner as can be afforded, the responsibility for ensuring that the child has medical attention when needed, and so on. We do not therefore think that literal or absolute sole responsibility of the parent in the United Kingdom could ever be established. In this case whilst we agree with the view of the adjudicator that the issue of sole responsibility is not one to be decided only between parent and parent we do not think that it is more apt to say that there has been an abdication of responsibility in this case. The mother has sent money regularly for the child's upkeep and, as the adjudicator...
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