Applications relying upon Paragraph 297 of the Immigration Rules face an uphill battle at appeal if refused by an Entry Clearance Officer.

A short refusal decision may at first glance seem fairly capable of being addressed at appeal, however it usually becomes necessary to anticipate well in advance of the appeal hearing what else related to Paragraph 297, for example a sole responsibility contention, might be disproportionality and dramatically thrown into issue during cross examination at appeal and in oral submissions by the Presenting Officer.

Conversely, what may seem to be a hopeless case, even following previous failure before a Tribunal Judge, might upon a second view, give rise to a subsequent successful appeal for an Appellant, where advance effective preparation is the focus from application stage through to appeal.  A recent successful second appeal confirms this.

Relevant Immigration Rule

Part 8 of the Immigration Rules provides at Paragraph 297 of the Immigration Rules:

“Requirements for 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

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(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; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement 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

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not fall for refusal under the general grounds for refusal”.

Failure in previous application and appeal

Working with previous legal representatives, in 2018 the Appellant (EG), submitted an application for indefinite leave to enter relying upon paragraph 297 of the Immigration Rules. His mother held limited leave to remain as a Partner and resided in the UK with EG’s British step- father.  EG’s mother had long separated from his biological father who had passed away in Nigeria in 2013.

As EG’s biological father was deceased, it was put forward having regard to the definition of “parent” in Paragraph 6 of the Immigration Rules, that EG’s stepfather was his parent:

“Parent” includes:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership…………..”

The application for entry clearance was refused and was dismissed on appeal in 2019 as the Tribunal Judge found that in relation to EG:

• his biological father was said to have died in 2013, however his death was not registered until 5years later
• his biological father’s death certificate erroneously recorded his age at the date of death
• The Judge was satisfied that there was no reasonable explanation for the late registration of the birth or the discrepancy in the father’s age and therefore was not satisfied that EG’s father was deceased.

The Judge concluded in 2019 that EG’s mother had no sole responsibility for him because he was not satisfied that the father was deceased and there was nothing more than bare assertions that she and/or his stepfather had continuing control and direction over EG’s life. Neither were there serious and compelling family or other considerations which made EG’s exclusion from the UK undesirable because of the lack of evidence as to his circumstances.

The second application of 2020 under Paragraph 297and the submitted documentary evidence

Despite being advised by previous legal representatives that there were no prospects of success in pursuing a permission application to the Upper Tribunal, his mother and step-father were adamant the Judge had got wrong his decision in 2019 on the matter of EG’s father’s death. Their position was that EG’s father was indeed deceased and they had sole responsibility of EG.

Having instructed me in mid-2020, months after exhaustion of appeal rights and a few days before he turned 18years of age, a new paragraph 297 application was submitted on behalf of EG. It was maintained that his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules.

In relation to documentary evidence in support of the second application, this included the following:

• The very same death certificate that the Tribunal refused to place weight upon in 2019
• The documentary evidence previously submitted in the 2019 appeal, such as documents from the Nigerian authorities confirming the death as well as from the hospital where EG’s father had passed away. The evidence from the authorities had had no weight placed upon it in 2019 as the issues raised by reference to the death certificate was considered in effect by the Judge to have tainted the rest of the evidence
• Joint detailed statement from EG’s mother and his stepfather
• Statement from EG’s maternal aunt who he had been living with since 2013 after his mother came to the UK.
• Four statements, including from his paternal uncle and aunt in Nigeria who confirmed that EG’s mother had had sole responsibility for more than a decade following his parents divorce; provided explanations as to the errors made upon registering EG’s father’s death including the reasons for the delay in registering the death
• Evidence of contact between the Appellant and his mother and stepfather
• Money remittances running from 2015 for the Appellant’s support from his parents in the UK to Nigeria
• Evidence of visits to Nigeria by his mother and stepfather
• Evidence regarding his parent’s tenancy agreement in the UK and the landlord’s written consent that EG could on arrival reside in the UK with his parents at the residence
• Bank statements, payslips and letters from the Employers going towards his parents employment in the UK
• DNA reports in relation to the Appellant’s relationship with his mother- no weight had previously been placed upon his birth certificate as his birth had been registered late

The second refusal of entry clearance in 2020

Although EG had made his application under paragraph 297, the entry clearance officer considered the application under Appendix FM( Section EC-C)on the basis that, at the time he made his application, his mother had limited leave to remain in the UK as a partner. His application was refused in late 2020 because the entry clearance officer was not satisfied that the appellant’s father was deceased as claimed or that his mother had sole responsibility for his upbringing or that there were exceptional circumstances which would mean that the refusal would have unjustifiably harsh consequences for the appellant or his family.

EG appealed the refusal decision.

Caselaw relied upon at application and on appeal

TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049, provides:

“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”

……………….

Summary

i.Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.

ii.The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.

iii. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.

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.

v.If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.

vi.However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix.The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”.

Submissions at appeal in October 2021

On the day of the hearing, following rigorous cross -examination of EG’s parents, in particular his mother, on behalf of the Entry Clearance Officer, the Presenting Office relied upon the refusal letter and submitted that Devaseelan ([2002] UKIAT 702 – STARRED Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702 applied because:

• the decision of the Tribunal Judge from October 2019 had not been challenged or not successfully challenged and so that was the Tribunal’s starting point
• It had not accepted in 2019 that EG’s father was deceased and we were in the same situation now as had been in 2019  because exactly the same documents as had been produced  had been produced to the present  Tribunal
• EG’s father was not deceased and his mother did not have and had not had sole responsibility for his upbringing
• EG could not apply to come to the UK based upon his relationship with his stepfather because his stepfather was not his parent because his father was not deceased.
• The mother could not be considered to be present and settled in the UK because she has limited leave to remain

I represented EG at his appeal hearing and submitted as follows, amongst other matters:

• EG was seeking indefinite leave to enter under paragraph 297
• He maintained that his father was deceased and his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules
• the assessment under Appendix FM was a misunderstanding of the relevant law relied upon and tainted the rest of the decision
• the re-submitted application sought to address the deficiencies of the earlier application and on the balance of probabilities, it had been shown that EG’s biological father was deceased
• the entry clearance officer did not engage with the statements submitted with the application which provided the reasonable explanations for the deficiencies as noted by the Judge in 2019
• in so far as the error in the father’s age at death was concerned, EG’s mother was not aware of that error at the previous hearing and therefore EG’s maternal uncle and aunt had now produced statements explaining how that error came about. Those explanations were the reasonable explanations missing by the Tribunal Judge in 2019
• there was no evidence submitted of the attempts stated in the refusal decision of 2020 made by the entry clearance officer to verify the death of the father
• on the balance of probabilities, EG’s father was deceased and his mother has had and still has sole responsibility for him. The Tribunal Judge found against her in 2019 because he only had bare assertions before him that she had sole responsibility. Now there were other statements confirming that she does have direction and control over his life as per TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049

The appeal is allowed

In allowing the appeal, the Tribunal Judge provided detailed reasoned decision.

A finding that the Appellant’s father was deceased:

Before she went on to consider whether the parents in the UK had sole responsibility for EG’s upbringing, the Judge first considered whether his  father was deceased, making considerations and reaching conclusions as follows:

• Tanveer Ahmed (2002 UKIAT 439*)- STARRED A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439 makes it clear that the onus is upon the appellant to show that the document which he submits can be relied upon and the Tribunal Judge had to consider, having looked at all the evidence in the round, that the death certificate could be one upon which she could place reliance
• The evidence from EG’s paternal aunt and the nurse/friend who were with EG’s father at the time of his death in Nigeria were very persuasive but were countered by the concerns raised as to the authenticity of the information contained within the death certificate.
• The Judge noted that the entry clearance officer’s refusal letter claimed to have made attempts to verify the death but had provided no evidence of those attempts. The Presenting Officer was not able to supply that information at the hearing and therefore, despite 2 sets of Tribunal directions making it quite clear that that information was required, the Judge relied upon MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC)and assumed that, because the entry clearance officer had not provided the evidence of the attempts made to verify the death, those attempts were no longer relied upon in the refusal and the Judge took no account of that evidence.
• The Judge was persuaded by the cause of death certificate when taken with the statements provided and therefore found that EG’s father was indeed deceased.

A finding of sole responsibility for the Appellant’s upbringing:

• The Judge stated she had considered the case of TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049 which sets out the guidelines for determining who has sole responsibility for a child’s upbringing. It was noted that TD makes it clear that mere financial support is not enough to satisfy the requirements for sole responsibility. The Judge had to be satisfied that it was the mother who was making all the major decisions in the appellant’s life and whether she had the continuing control and direction of his life.
• EG’s mother had provided evidence of money transfer receipts from her and her husband to her sister who has cared for EG since his mother came to the UK 2013
• EG’s mother had provided letters from his school stating that she and her husband had maintained contact with the school in relation to the appellant and introduced her sister to the school as the person caring for him whilst she was away.
• The Judge in 2019 had noted that there were missing money transfer receipts within the papers supplied to him however at the appeal of October 2021, EG’s mother and her husband had managed to supply money transfer receipts going back to 2015. When she came to the UK 2013, she left a large sum of money with her sister, who was also working at the time, which was sufficient for the appellant’s needs.
• The previous Tribunal decision of 2019 noted evidence of visits by his mother in 2018 and visits by the sponsor’s husband between 2014 and 2018. It also noted evidence of contact between 2018-19. Before the Judge in 2021 was further evidence of visits by the mother to the appellant as recently as July 2021 by way of passport stamps and photographs.
• EG’s day-today care had been with his maternal aunt since his mother went to the UK in 2013. The fact of his day- to-day care was confirmed by his paternal aunt and uncle in their affidavits in which they stated that the appellant did not live with them and his father had no dealings with him.
• The appellant’s late father’s landlord confirmed that EG’s father lived in the same compound as his siblings and did not live with the appellant in Nigeria
• The Judge was satisfied that the mother had sole responsibility for the appellant’s upbringing since his birth or at least since her divorce from the appellant’s late father in 2004
• The mother had made the major decisions in the appellant’s life and it was the mother who had the continuing control and direction of the appellant’s life

Conclusion

EG’s appeal was allowed in November 2021 and the requisite 28days having gone by without an application for permission to appeal from the entry clearance officer, EG has now received an email inviting him to present his passport to the entry clearance officer so that he may be granted entry clearance to the UK.