Upper Tribunal (Immigration and asylum chamber), 2016-05-13, OA/05525/2014 & OA/05521/2014
| Jurisdiction | UK Non-devolved |
| Date | 13 May 2016 |
| Published date | 08 May 2017 |
| Hearing Date | 07 April 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/05525/2014 & OA/05521/2014 |
Appeal Number: OA/05525/2014
OA/05521/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05525/2014
OA/05521/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 April 2016 |
On 13 May 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
Z W
&
S W
(ANONYMITY ORDER MADE)
Appellant
V
ENTRY CLEARANCE OFFICER
Respondent
______________________________________
DECISION & REASONS
______________________________________
Representation:
For the Appellant: Ms J Heybroek, counsel instructed by Kothala & Co, solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer
1. This appeal came before me on 16 December 2015 as an error of law hearing, where I found that First tier Tribunal Judge Baldwin had materially erred in law and I adjourned the appeal to hear submissions in respect of Article 8 of ECHR. This decision is appended.
Hearing
2. At the hearing before me, Ms Heybroek pointed out, correctly, that although I had made findings in respect of the application of paragraph 301 of the Immigration Rules and had found that the First tier Tribunal Judge materially erred in respect of his Article 8 consideration, there was no finding as to whether or not the First tier Tribunal Judge had erred in respect of paragraph 297(i)(f) of the Rules. She submitted that, given that the test for whether or not Article 8 was engaged overlapped with paragraph 297(i)(f), this meant that I should also consider whether paragraph 297(i)(f) of the Rules applied. The reason I did not make findings in the error of law decision is because paragraph 297(i)(f) was neither directly pleaded in the grounds of appeal nor was it the focus of the oral submissions by the parties. However, it is the case that the second ground of appeal, which concerned the manner in which the First tier Tribunal Judge had applied section 55, asserted that the Judge’s erroneous approach to section 55 had infected his approach to paragraph 297(i)(f). In these circumstances and given that the appeal concerns two minor children (at the date of decision) who remain separated from their parents and sibling, I agreed to hear argument in respect of paragraph 297 of the Rules in addition to argument in relation to Article 8 outside the Rules. Mr Bramble accepted that paragraph 297(i)f) would stand or fall with Article 8 and it was appropriate to hear argument on both in respect of whether or not there were compelling circumstances on the facts.
3. The appeal proceeded on the basis of submissions only with the only additional evidence being a statement from the Sponsor’s sister, Ms. W, as to the hoped-for admission of the Appellants’ grandmother to the United Kingdom. The statement further confirmed that Ms. W had resided in China until 2013 and had assisted in caring for the Appellants until that time, when she was admitted to the United Kingdom. Clearly this statement post dates the entry clearance decision, however, in light of the principles in DR (Morocco) [2005] UKAIT 00038 it is admissible on the basis that it sheds light on the circumstances prevailing at the date of decision. Moreover, the contents of her statement are reflected in the Sponsor’s detailed statement submitted as part of the entry clearance application. Mr Bramble did not object to its admission in evidence.
4. Ms Heybroek submitted that the compelling circumstances were that
care of the Appellants can no longer be provided by their grandmother on her own and this was the case at the date of decision. The Appellants and their grandmother were and are living in a property that is precarious, in circumstances where it was envisaged that the grandmother would be joining the rest of the family at some stage. The sufficiency of care is simply not there for the children to be adequately looked after. She submitted that it was not sufficient to say that the older sibling could look after the younger as a way of addressing this. Nor could one split the family further by saying that the youngest child can be given entry clearance and the oldest child left in China.
She submitted that, with regard to paragraph 297(i)(f) that there are suitable arrangements for their care and no issues in terms of accommodation or maintenance.
5. Ms Heybroek further submitted that this went to the article 8 point as well in that the effect of the ECO’s decision is unduly harsh cf. SS Congo and that met the very compelling circumstances test. In relation to section 117B(6), she submitted that there was a British child who has a long distance relationship with his siblings at the moment and he cannot be expected, in order to continue the relationship with them, to relocate to China. She submitted that this was not a matter of choice for the British child and it placed the Appellants’ parents in an impossible situation. It was not reasonable to expect the British child to live in China cf. Zambrano C34-09 [2011] ECR 1-0000 8 March 2011.
6. In response, Mr Bramble asked me to bear in mind the factual matrix, at [22] of the First tier Tribunal’s decision where it states that the Appellants are living in China in a 4 bedroom, 4 floor house with their grandmother, who has cared for her granddaughter since she was a baby and her grandson since he was 9 years of age. Whilst it was accepted that their grandmother was 69 years of age, her condition cannot be described as “grave”. It was not unreasonable to expect her grandchildren to provide some assistance given their respective ages. He submitted that the Appellants were a good deal closer to her than their parents who they have not seen for many years. He pointed out that there was no medical evidence regarding the grandmother. Mr Bramble then withdrew this submission in light of an intervention by Ms Heybroek to the effect that there is medical evidence at U127-134. He submitted that her condition is not grave and the evidence goes to her mobility. There is no evidence regarding her mental state or capability to look after the children or up to date medical evidence.
7. In respect of the witness statement from Ms W, the sister of first Sponsor, he submitted that it reiterates what was clearly before the First tier Tribunal. In those circumstances, it is not in dispute that the Sponsor is in conflict with his brother but the grandmother is choosing not to move herself, depending on the resolution of the circumstances of the grandchildren. It all comes down to the health of the grandmother. He submitted that the relationship between the grandmother and children has grown up through the choice of the sponsors and that when one looks at “serious and compelling family or other considerations” – at the date of decision there are two children who had a greater relationship with their grandmother and there is no reason that needs to change. Therefore, the appeals cannot succeed under the Rules.
8. In respect of Article 8 of ECHR, Mr Bramble relied upon Razgar [2004] UHL 27 - is the interference with family life proportionate and [33] of SS Congo [2015] EWCA Civ 387 as to whether or not there are compelling reasons. He submitted that if I was not with the Appellant under the Rules, then greater weight should be given to the fact that the Appellants do not succeed under the Rules because this is one of the factors to be considered. He also drew my attention to section 117B (1) and the fact that maintenance of effective immigration controls is in the public interest. Mr Bramble acknowledged that against that one has to consider the best interests of the children. The Respondent accepts that it is preferable that children are brought up in a family unit but the onus is on the Sponsors in creating that set of circumstances, in that they chose to have a further child and a split family. He acknowledged that the third child has rights as a British Citizen, but the Sponsors do not need to remove the third child from the UK and can maintain the status quo. They have kept a separated life from their other two children and there is a functioning unit in China.
9. In response, Ms Heybroek submitted that, in relation to the medical evidence, this was described as degenerative. In respect of the issue of a
matter of choice, she submitted that this was not the case for the British child and arguably not a matter of choice for the parents, who are now established in the UK, running a business. She relied upon VW Uganda [2009] EWCA Civ 5 and submitted that there were very real obstacles as to why care of the children could not be resolved by “upping sticks”, primarily the youngest child and her best interests, which were not paramount but a primary consideration. She submitted that disruption is more of an obstacle as the child lets go of more of the parents’ cultural background and that under paragraph 276ADE(iv) of the rules the British child has 7 years private life of her own to justify the grant of leave to remain.
Decision
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