TD (paragraph 297(I) (e): 'Sole responsibility') Yemen
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 2006 |
| Neutral Citation | [2006] UKIAT 49 |
| Date | 24 May 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr C M G Ockelton, Deputy President, Senior Immigration Judge Grubb and Immigration Judge A D Baker
Representation
Mr Nuhu Garba Gobir, instructed by Kalee Lau & Co, Solicitors, for the Claimant;
Mr G Russell, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
Alagon v Entry Clearance Officer, Manila [1993] Imm AR 336
Cenir v Entry Clearance OfficerUNK [2003] EWCA Civ 572
DR (Immigration RulesRule 297 (e): sole responsibility) Philippines [2003] UKIAT 00109
Emmanuel v Secretary of State for the Home Department [1972] Imm AR 69
Entry Clearance Officer, Accra v Otuo-Acheampong [2002] UKIAT 06687
Entry Clearance Officer, Kingston v Martin [1978] Imm AR 100
Eugene v Entry Clearance Officer, Bridgetown [1975] Imm AR 111
Martin v Secretary of State for the Home Department [1972] Imm AR 71
Nmaju, Nmaju and Nmaju v Entry Clearance Officer [2001] INLR 26
Qui Zou v Entry 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 judicially considered:
Immigration Rules HC 395 (as amended), Rule 297(i)(e)
Immigration family reunion Rule 297(i)(e) of the Immigration Rules HC 395 (as amended) children sole responsibility
The Claimant and his two brothers, citizens of Yemen, applied for entry clearance to join their father (the Sponsor) who was present and settled in the United Kingdom. The Entry Clearance Officer (ECO) rejected the applications. On appeal, it was accepted that the only issue was whether the Sponsor had sole responsibility for the Claimant and his brothers for the purpose of Rule 297(i)(e) of the Immigration Rules HC 395 (as amended). The Immigration Judge dismissed the appeals, finding that responsibility was shared between the Sponsor in the United Kingdom and the Claimants' mother in Yemen, with whom they had lived since birth. An order for reconsideration was made.*
Held, affirming the original determination dismissing the Claimant's appeal against the ECO's decision:
(1) the term responsibility under the Rules was not a theoretical or legal obligation but a practical one to be decided upon the facts of each case; it required an examination of who was in fact exercising responsibility for a particular child (paras 12 and 52);
(2) sole responsibility was not only an issue between parents, but also arose where responsibility for a child had been undertaken by a relative or other individual abroad (paras 912 and 52);
(3) where only one parent was involved in the child's welfare, that parent would not necessarily have sole responsibility; where one parent had abandoned or abdicated responsibility towards a child, the issue of sole responsibility could arise between the remaining parent and others who had day-to-day care of the child; the test as to whether the remaining parent had sole responsibility was whether the parent had continuing control and direction over the child's upbringing, including making all the important decisions in the child's life (paras 1318 and 52);
(4) the fact that day to day responsibility for a child's welfare was necessarily shared with others because of a geographical separation of parent and child would
not prevent a parent having sole responsibility within the meaning of the Immigration Rules (para 52)(5) where both parents were involved in a child's upbringing, it would be exceptional for one of them to have sole responsibility (paras 3542 and 52);
(6) the determination disclosed no material error of law; the Immigration Judge had considered all relevant factors in making his decision (paras 57 and 60).
Determination and Reasons
A Grubb, Senior Immigration Judge:
[1] 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.
[2] 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's decision
[3] 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 extensivehe spoke to them weekly. Their father had, however, provided all financial support for the appellant and his brothers throughout their lives.
[4] 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.
Sole responsibility
[5] 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;
[6] 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), (6th edn), 2005 at paras 11.8911.92 to which he also referred us.
[7] The cases struggle with the obvious difficulty that where there is a UK based parentthe sponsorwhom the child is seeking to join for settlement there will inevitably be others in the country of origin who de factolook 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...
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