United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002773
	First-tier Tribunal No: HU/58519/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

 

Between

 

NABINA CHHANTYAL

( NO ANONYMITY ORDER MADE )

Appellant

and

 

THE ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: Mr A Slatter, counsel instructed by Paul John & Co Solicitors

For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

 

Heard at Field House on 17 February 2025

DECISION AND REASONS

Introduction

1.        This decision should be read in conjunction with the decision issued on 20 November 2024 in which the Upper Tribunal found that the First-tier Tribunal had erred in law. The decision of the First-tier Tribunal was set aside with no preserved findings. The remaking of that decision was adjourned to be heard on a future occasion.

Anonymity

2.        No anonymity direction was made previously, and there is no application nor apparent reason for one now.

Factual Background

3.        The appellant is a national of Nepal. On 1 February 2023, while a minor, she made an application for settlement to join her mother in the United Kingdom. That application was refused on 28 June 2023 as it was not accepted that paragraph 297(i)(e) of the Immigration Rules had been met. The reasons provided are reproduced below.

You state that your mother has sole responsibility for your upbringing; however I am not satisfied that the documents provided demonstrate this. You state that you have been living with your maternal grandmother since you were 8 years old, however you have not provided any evidence to confirm this arrangement.

As evidence of your relationship with your sponsor, you have provided a birth certificate. This was issued on 20/04/2016 and was registered by your father. Given that you were living with your grandmother by this date, it is unclear why your father registered your birth. You have also provided a Relationship Certification Certificate dated 01/11/2017, which lists both parent's details.

Given that your father has registered your birth and is also listed on the Relationship Certification Certificate, I am not satisfied that your sponsor has had sole responsibility for your upbringing.

4.        In advance of the hearing before the First-tier Tribunal, the Secretary of State submitted a Respondent's Review dated 29 January 2023. In that document, the respondent rejected the claim that the sponsor had sole responsibility for the appellant. It was noted that in a Visa Application Form dating from 2011, it was stated that the sponsor had one dependent child named 'Nabana' who lived with her father and that this was inconsistent with the claim that the appellant's father abandoned her before her birth. Issues were raised as to the identity of the recipients of the money transfers sent by the sponsor and the reliability of evidence relating to the appellant's school and accommodation was questioned. Lastly, the decision to refuse entry was considered to be proportionate.

The remaking hearing

5.        The hearing was attended by representatives for both parties as above as well as the sponsor, Mrs Chhantyal, who gave oral evidence with the assistance of an interpreter. Both representatives made submissions. The conclusions below reflect those arguments and submissions where necessary.

 

6.        At the end of the hearing, the appellant's appeal was allowed. The reasons are given below.

Discussion

7.        The sole matter in issue is whether the appellant has discharged the burden of proving, on the balance of probabilities that at the time of the application for entry clearance the sponsor was solely responsible for her upbringing.

 

8.        The relevant guidance is contained in the headnote in TD (Paragraph 297(i)(e): "sole responsibility") Yemen  [2006] UKAIT 00049

 

"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."

 

9.        The guidance in TD was approved in Buydov EWCA [2012] Civ 1739 at [19]

Neither party to this appeal before us has challenged any part of the approach chronicled by the AIT in TD, which is of course a decision of a court extremely experienced in this field. The existence of the distinction identified between one- parent and two-parent cases is a valid one, and it is consistent with the scheme of the Rules identified at [13] above. It is however important to remember that the question remains one of fact in each case, and not to elevate the distinction into a presumption of law. There might be some risk of misreading the distinction as such a presumption, or as importing some independent legal test of exceptionality, if one were to take out of context one part of the helpful summary contained at [52] of  TD, which contains the following:

"(iv) Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility."

The IAT clearly did not mean to impose a legal test. Its review of the cases is predicated on the fundamental proposition that the issue of sole responsibility is one of fact. It was doing no more than identifying where the necessary factual enquiry is likely in most two-parent cases to lead, and as such the proposition is accurate. The application of the factual test to two-parent cases is well illustrated by some of the decisions reviewed in TD. In  SSHD v Pusey [1972] Imm AR 240, discussed at [35], the sponsoring parent in the UK was Father, and the child had lived for twelve years with her grandmother and mother in the country of origin. Although Father shouldered the main responsibility, the close contact of mother meant that he did not have sole responsibility.  Eugene v ECO Bridgetown [1975] Imm AR 111, discussed at [36] was a similar case, as were  Martin v SSHD [1972] Imm AR 71, discussed at [11],  ECO, Accra v Otou-Acheampong  [2002] UKIAT 06687 , discussed at [37] and R  (Philippines) v SSHD  [2003] UKIAT 00109 , discussed at [38]. On the other side of the factual dividing line was  Alagon v ECO, Manila [1993] Imm AR 336, discussed at [39]. There the parent remaining in the country of origin, although he occupied the same house as the child, which belonged to the sponsoring mother, was divorced from Mother, made no financial contribution and took no part in the child's life. Mother was held to have had sole responsibility. That illustrates the factual nature of the enquiry and the proposition that even where there is a second parent in close physical proximity to the child, s/he may not be taking any responsibility for him.

10.    Turning to the facts of this case, I found the sponsor to be a witness of truth. She has provided four detailed witness statements and her evidence was consistent with what she had said previously as well as the statements from her own mother, the appellant and the extensive supporting documentary evidence. Furthermore, her evidence was provided without any attempt at hesitation or evasion and she was able to credibly address the issues raised in the decision letter and the Respondent's Review. Indeed, Ms McKenzie did not seek to impugn the credibility of the sponsor's evidence.

 

11.    Ms McKenzie's main submission was that responsibility for the appellant's care was shared between the sponsor and her mother, the appellant's grandmother. To support that submission, she referred to the fact that the appellant's grandmother had carried out all aspects of her day to day care when she was very young, including providing her meals.

 

12.    Yet in TD at [50] it was found that the fact that day-to day decision making regarding practical matters including providing meals rested with a carer abroad was not conclusive of the issue of sole responsibility.

 

13.    As for relevant issue as to who was responsible for making the important decisions in the appellant's life, Ms McKenzie could only point to one example of the appellant's grandmother having ever done so. This example concerned a recent communication with the appellant's college which took place after the appellant had become an adult and owing to the sponsor's difficulties in obtaining information from a distance.

 

14.    That sole example is outweighed by the account provided by the sponsor in her evidence of having regular contact with the appellant's teachers and headteachers during the many years when the appellant was attending schools rather than since the appellant has been attending her current college. Added to that was the consistent evidence of the sponsor being proactive in choosing the appellant's schools and ensuring the appellant is taken for medical check-ups.

 

15.    The sponsor has provided plausible explanations for the matters raised in the decision letter. She has explained in detail during the hearing as well as in her witness statement how it was that the appellant's father came to sign a document so that a birth certificate could be obtained on the appellant's behalf. There was no criticism of that explanation on behalf of the respondent.

 

16.    There is no remaining issue as to the identity of the people to whom the sponsor previously sent funds for the appellant's benefit. They were simply young women in the village who were willing to assist as the sponsor's mother was unable to do so owing to a condition with her sight. In any event, the sponsor has been sending funds directly to the appellant for some time.

 

17.    I am further satisfied that the sponsor was not responsible for the erroneous information entered onto a visa application form in 2011. Even the name of the appellant was incorrectly provided on that occasion. Furthermore, there is simply no sound reason on the evidence before me to reject the claim that the appellant's father played no part in her life, let alone that he took responsibility for her upbringing.

 

18.    I have carefully considered the documentary evidence relating to the appellant's education and can find no reason to reject it as unreliable.

 

19.    The appellant's father abandoned the sponsor before she was born. The appellant's day to day care has been provided by her grandmother and the appellant has yet to meet her father. It follows that I accept that the sponsor is solely responsible for the appellant's upbringing and has been so for the entirety of her life.

 

20.    To summarise, the appellant can meet the requirements of the Rules, the only matter in issue being sole responsibility. There is and was family life between the appellant and sponsor.

 

21.    The appeal falls to be allowed on human rights grounds on the basis that the appellant met the requirements of the Rules at the time of the application and this is determinative of the human rights appeal, applying Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC) at headnote (2):

 

The significance of P being found by the Tribunal to satisfy a provision of the Immigration Rules, which the Secretary of State considered P did not satisfy, and which caused her to refuse P's application, applies to entry clearance cases, as it does to cases where P is in the United Kingdom. Provided that ECHR Article 8 is engaged, the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in her favour in the proportionality balancing exercise, so far as that factor relates to the particular rule that the Tribunal finds was satisfied: OA and others (human rights; "new matter"; s. 120) Nigeria [2019] UKUT 65 (IAC).

 

Notice of Decision

 

The appeal is allowed on human rights grounds.

T Kamara

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025

 

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email