Upper Tribunal (Immigration and asylum chamber), 2014-11-27, OA/05563/2013 & OA/06608/2013
| Jurisdiction | UK Non-devolved |
| Date | 27 November 2014 |
| Published date | 12 March 2015 |
| Hearing Date | 16 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/05563/2013 & OA/06608/2013 |
Appeal Numbers: OA/05563/2013
OA/06608/2013
IAC-TH-WYL-V2
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/05563/2013
OA/06608/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 16th October 2014 |
On 27th November 2014 |
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Before
UPPER TRIBUNAL JUDGE REEDS
Between
Entry Clearance Officer - NAIROBI
Appellant
and
R S H (FIRST APPELLANT)
M S H (SECOND APPELLANT )
(Anonymity Direction made
Respondent
Representation:
For the Appellant: Mr Wilding, Senior Presenting Officer
For the Respondents: Mr Scott, of Pickup and Scott Solicitors
DETERMINATION AND REASONS
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This is the appeal of the Entry Clearance Officer against the decision of the First-tier Tribunal (Judge Ruth) who in a determination promulgated on 10th January 2014 allowed the appeals of the Appellants against the refusal of their applications to enter the United Kingdom as dependent children of the Sponsor, Ms K H, a person holding indefinite leave to remain in the United Kingdom.
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Whilst this is an appeal by the Entry Clearance Officer, for convenience I shall refer to the parties in this determination as they appeared before the First-tier Tribunal.
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This appeal is subject to an anonymity direction that no report or other publication of these proceedings or any part or parts of them shall name or directly or indirectly identify the claimant. Reference to the claimant may be by use of his initials but not by name. Failure by any person, body or institution whether corporate or incorporate (for the avoidance of doubt to include either party to this appeal) to comply with this direction may lead to a contempt of Court. This direction shall continue in force until the Upper Tribunal (IAC) or an appropriate Court lifts or varies it. I have made such a direction as the Appellants concerned are minors.
The background to the appeal:
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The Appellants are citizens of Somalia born on 27th November 1999 and 30th December 1997 respectively. They are the minor siblings of the Sponsor, Ms KH,, who has indefinite leave to remain in the United Kingdom.
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On 21st January 2013 the Appellants made applications to enter the United Kingdom for settlement as dependants of the Sponsor.
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The applications were considered by the Entry Clearance Officer in Nairobi and were refused without interview on 23rd January 2013. The notice of immigration decision in respect of both Appellants were in identical terms. It was stated that whilst it was accepted that both Appellants were related to the Sponsor and that she was their sister, having submitted DNA evidence to confirm the relationship, the Entry Clearance Officer was not satisfied that the family circumstances were as stated. The decision letter went on to state that:-
“You state that you have been living in Ethiopia for one year and it is unclear from the documents submitted who in fact you are living with in Ethiopia. Although you state you do not know where your mother and father are, you have submitted no evidence to satisfy me this is the case. You claim you last saw your Sponsor five years ago and there is no evidence to suggest that she has been a primary carer for you throughout the years. I do not consider your circumstances in Ethiopia are exceptional in relation to those of other children living there. Based on the above information, I am not satisfied you meet the requirements of paragraph 297(i)(f) of HC 395.
As evidence of financial assistance, you have submitted three poor quality, unendorsed money transfer receipts. I am not satisfied these documents show adequate evidence that your Sponsor has been supporting you financially and consider such recent receipts merely an attempt to bolster your application.
I must also take into account the maintenance and accommodation aspect of your application. It is noted you have applied for an entry clearance with another child and your Sponsor in the UK has another two young children to support. Your Sponsor is a cleaner, earning a very modest income and is in receipt of child benefits and working and child tax credits. As a result, I am not satisfied your Sponsor will be able to maintain and accommodate you without extra recourse to public funds (297(iv), (v)).
I have therefore refused your application because I am not satisfied, on the balance of probabilities, that you meet all of the requirements of the relevant paragraph of the United Kingdom Immigration Rules.”
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The Appellants sought permission to appeal the decisions of the Respondent and the appeals came before the First-tier Tribunal (Judge Ruth) on 4th December 2013.
The decision of the First-tier Tribunal:
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In a determination promulgated on 10th January 2014, Judge Ruth allowed their appeals. The judge set out the documentation at [8-10] and the findings and reasons are set out at [14-28].
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The judge accepted her evidence that she had left her siblings and mother in Somalia when she had left that country to seek asylum in 2005. Following her departure, the Appellants and their mother (the father not having been involved with the family for many years and his whereabouts being unknown) were separated during fighting in Somalia and the Appellants were taken by neighbours to Ethiopia with a large number of the Somalis fleeing the violence at the time. They had not had any contact with their mother since they were separated during the fighting in Somalia and her whereabouts are unknown. The judge further accepted that the Sponsor was not aware of the whereabouts of either of the Appellants until a person she had known when she herself was a refugee in Ethiopia, contacted her to say that she believed her siblings were there with other Somalis. In 2011, around three or four months after the Appellants fled Somalia to Ethiopia, the Sponsor made contact with them over the telephone and arranged for them to live in a room in Ethiopia through the same friend. The judge accepted, contrary to the matter set out in the refusal letters, that the Sponsor sent money regularly to her friend for the Appellants and from that money their rent, daily living costs and a small amount to pay for private tuition was covered as they did not attend school. The amount varied to approximately US$200 or US$300 per month.
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The judge considered the circumstances in which they were living at [17] and found that it consisted of a room with mattresses on the floor and bags for their clothing. It was a room in a house that had five other bedrooms each of which contained a family and that the family shared one toilet and bathroom. She described that:-
“Cooking was done outside the house and water is supplied from a tap outside the house. The house does have electricity and the children are cared for by the Sponsor’s friend, Safi Omar, who cooks for them and generally looked after them. The Appellants have no family members in Ethiopia as far as they know.”
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The judge at [19] considered the money transfer receipts at page 61 of the bundle and accepted that whilst the Appellants had not provided evidence that they are not in contact with their mother, the judge did not find that there was any evidence they could supply to establish this and the judge recorded that there was no reason to doubt the money transfer receipts even though they were of poor quality.
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The judge, when dealing with paragraph 297(i)(f) noted that it was not disputed that the Appellants are the siblings of the Sponsor and that the Sponsor was present and settled in the country. The judge made an overall finding at [22] that the current situation of the two children, living with strangers in a crowded accommodation where they shared very limited facilities and do not attend school, and also having no contact with family members at all, made their exclusion undesirable. The judge found at [23] their only known relative was living in the United Kingdom and that she had arranged for her landlord to give them approval for them to live with her and had been financially supporting them since 2011. The judge found that in the credible absence of any contact with the mother or other family members, and given the situation in Somalia at the time of their flight to Ethiopia, that the judge considered there were serious and compelling family considerations which made their exclusion from the UK undesirable.
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The judge therefore found overall that the Appellants satisfied the requirements of paragraph 297(i)(f) of the Immigration Rules.
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Dealing with the issue of maintenance, at [18] the judge recorded that at the date of the decision the Sponsor was working as a cleaner with two jobs and was also in receipt of child and working tax credit. She lived in a four bedroomed home for which she paid £200 per week rent and lived there with her own...
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