Upper Tribunal (Immigration and asylum chamber), 2017-05-23, OA/07711/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 23 May 2017 |
| Published date | 13 July 2017 |
| Hearing Date | 28 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/07711/2014 & Ors. |
Appeal Numbers: OA/07711/2014
OA/07728/2014
OA/07729/2014
OA/07730/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/07711/2014
OA/07728/2014
OA/07729/2014
OA/07730/2014
THE IMMIGRATION ACTS
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Heard at Birmingham |
Decision & Reasons Promulgated |
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On 28 April 2017 |
On 23 May 2017 |
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Before
UPPER TRIBUNAL JUDGE DAWSON
Between
miss prudence beatrice kusindika – 1st appellant
miss grace greacia kusindika – 2nd appellant
master gedeon harvey kusindika – 3rd appellant
master Henri Makileki – 4th appellant
(ANONYMITY DIRECTION not made)
Appellants
and
ENTRY CLEARANCE OFFICER - NAIROBI
Respondent
Representation:
For the Appellant: Mr A Burrett, instructed by Nandy & Co
For the Respondent: Mrs Aboni, Home Office Presenting Officer
DECISION AND REASONS
INTRODUCTION
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The above appellants who were born January 1997, August 1998, May 2000 and October 2003 are nationals of the Democratic Republic of Congo. They have been granted permission to appeal the determination of the First-tier Tribunal who dismissed their appeals against the refusal of entry clearance to join Naphta Dingangu in the United Kingdom (referred to as the sponsor). She is also a national of the DRC where she was born in December 1984.
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The sponsor came to the United Kingdom on 22 October 2011 and was granted asylum by the Secretary of State on 28 August 2013. She was pregnant when she reached the UK and her daughter, Bright, was born here on 3 May 2012. Another daughter, Brielle (who had succeeded on appeal to the FtT against refusal of her entry clearance application having applied at the same time as the appellants) arrived in the UK on 23 June 2015. The family now live in Tottenham London together with the sponsor’s current partner. At time the applications for entry clearance were refused, the sponsor was living with alone with Bright in Smethwick Birmingham.
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The first three appellants applied for entry on the basis that they were the sponsor’s siblings and had formed part of her household before her flight to the United Kingdom. The entry clearance officer refused their applications under paragraph 319X of the Rules on the basis that they were not related to the sponsor as claimed (319X(i)). Furthermore, he contended that these appellants had not provided evidence of their own circumstances in the DRC, including a lack of evidence to demonstrate they would be unable to continue with their current living arrangements. He was not satisfied that there were serious and compelling family or other considerations which made their exclusion undesirable (paragraph 319X(ii)). The entry clearance officer was not satisfied as to the sponsor’s ability to accommodate the appellants. No evidence had been provided as to the size of the property which she occupied in Birmingham nor was there a written authority from the landlord. The entry clearance officer considered there was no evidence of the sponsor’s income or financial circumstances and accordingly was not satisfied that these appellants would be adequately maintained without recourse to public funds (paragraph 319(vi), (vii)).
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The fourth appellant (and Brielle) applied on the basis that the sponsor is their mother. Their applications were refused under paragraph 352D(i) of the Immigration Rules as the entry clearance officer did not accept that they were not related as claimed.
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Following a hearing on 2 February 2015, First-tier Tribunal Judge Dhaliwal allowed the appeal by Brielle on the basis that she was the daughter of the sponsor. She dismissed the appeals by the remaining appellants. It was accepted by the appellants’ representatives that the fourth appellant was not the child of the sponsor (as admitted in the sponsor’s first witness statement) and, instead, it was claimed that he was her brother. The sponsor gave evidence at the hearing. The judge had before her a volume of material which included DNA test reports. She was however not persuaded that the four appellants were the siblings of the sponsor and furthermore was not persuaded that she could adequately maintain and accommodate them without recourse to public funds. She also considered the cases failed on article 8 grounds as there was “no good arguable case on which to consider this [sic]”.
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By a decision dated 16 March 2017, the President of the Upper Tribunal sitting with Deputy Upper Tribunal Judge Mahmood set aside the decision of the First-tier Tribunal and gave directions for the re-making. It is on that basis that the appeals have come before me.
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It is the appellants’ case that their father passed away in February 2002 due to malaria and ill health. Following a traditional marriage in July 2002, the sponsor lived with her husband in his house where Brielle was born. The appellants’ mother died in September 2005 and thereafter the appellants lived with the sponsor and her husband.
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The sponsor explains in her first witness statement dated 16 January 2015 that she treated the fourth appellant as her son; she did not want him to think that his mother had passed away “when he was very young”. Since she had left, a friend of hers called Amathou had been looking after her siblings and Brielle although the sponsor had provided them with financial support. That friend has informed her that she is unable to care for them as she has commitments of her own.
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In a more recent statement dated 12 April 2017, the sponsor explains that that her friend is continually pestering her to take the children as she is unable to cope and has family pressures. She is unable to look after the sponsor’s siblings in the way that she looks after her own children. Prudence is suffering from a mental stress condition and had not been looked after properly. A letter dated 4 April 2017 from Amathou has been provided in which she refers to her house having only two rooms and that she has three children of her own; she had only one child when she took the appellants in. The sponsor is asked to find a solution for the appellants otherwise they would be “on the street”. The sponsor also explains in her second statement that she is currently working through an agency and looking for permanent employment.
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The grounds of challenge to the FtT were in terms that DNA evidence would be provided shortly although it is argued that evidence of the relationships had been submitted and that article 8 had not been considered as “ it should have been”.
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The rule relevant to applications by children related to someone recognised as a refugee is paragraph 319X is in these terms:
“319X. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom are that:
(i) the applicant is seeking leave to enter or remain to join a relative with limited leave to enter or remain as a refugee or person with humanitarian protection; and:
(ii) the relative has limited leave in the United Kingdom as a refugee or beneficiary of humanitarian protection and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
(iii) the relative is not the parent of the child who is seeking leave to enter or remain in the United Kingdom; and
(iv) the applicant is under the age of 18; and
(v) the applicant is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(vi) the applicant can, and will, be accommodated adequately by the relative the child is seeking to join without recourse to public funds in accommodation which the relative in the United Kingdom owns or occupies exclusively; and
(vii) the applicant can, and will, be maintained adequately by the relative in the United Kingdom without recourse to public funds; and
(viii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity or, if seeking leave to remain, holds valid leave to remain in this or another capacity.”
THE ISSUES
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During a review of matters at the beginning of the hearing, in the light of the DNA reports, Mrs Aboni accepted that the first, second and third appellants are the siblings of the sponsor. She also accepted that although the fourth is related to her, he is not her brother. Despite her reservations about the precise blood tie of Henri, Mrs Aboni nevertheless accepted that that the sponsor was the de facto mother of all four appellants and that they constituted a family unit before she came to the UK.
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Mr Burrett accepted that having regard to the impact of s 85A of the 2002 Act,...
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