IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE MANCE
|ENTRY CLEARANCE OFFICER||Respondent/Respondent|
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MR S GRODZINSKI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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"... the words 'sole responsibility' have to carry some form of qualification in that the rule envisages that a parent who is settled in the United Kingdom will or may have had the sole responsibility for the child's upbringing in another country. Obviously there are matters of day-to-day decision in the upbringing of a child which are bound to be decided on the spot by whoever is looking after the child in the absence of the parent settled here, such as getting the child to school safely and on time [and other examples of that sort are quoted] ... The question must be a broad question.
... the decision that has to be made is the decision of the adjudicator. It is not for this court to make its own fresh decision of fact on the evidence as it appears from the papers. That is not the function on judicial review. Each case must depend on its own facts considered broadly. ...
Direction and control of upbringing are ... factors which are part of the total pattern of facts on which the adjudicator had to make his decision. Another matter was of course the extent of contact that the mother had had with the child since the mother went to the United Kingdom ..."
"While legal responsibility under the appropriate legal system will be a relevant consideration, it will not be a conclusive one. One must also look at what has actually been done in relation to the child's upbringing by whom and whether it has been done under the direction of the parent settled here."
I would respectfully adopt the observation that the question is a factual one. Each case will depend on its own particular facts. The general guidance is to look at whether what has been done in relation to the upbringing has been done under the direction of the sponsoring settled parent.
"... it is clearly established that it must be shown that all the important decisions in the child's life, questions concerning health and place of abode, schooling and probably going as far as serious questions of behaviour, mode of dress and the like must be under the oversight of the parent claiming sole responsibility or delegated to someone obliged to consult and act upon her instructions. To have responsibility means to be answerable."
"I accept the sponsor's evidence that during the period of her separation from her children and the other members of her family since December 1986, she has regularly sent money home which has been used to support not only her three children (e.g. by buying clothes for them and paying for the appellant's school fees during the short period when he attended a private school) but also other members of her family, such as her brother who is disabled. She is clearly a devoted and caring mother.
I also accept the sponsor's evidence that since her departure from the Philippines in November 1986, she has kept in regular contact with her family there, initially by letter, and then since 1993 when a telephone was installed at the home of her sister Rosie, by calling her sister and children there, and finally since 1998 when a telephone was installed at her parents' home by calling her parents and children there. She states that she has telephoned the family about every two weeks on average. I accept her evidence in that regard. There is ample documentary evidence before me as to the telephone contact between the sponsor and her family in the Philippines."
The adjudicator then made reference to various authorities, including the case of Nmaju which I have already cited, analysing the law broadly in the terms that I have already indicated.
"In the present instance I take the following factors into account:
1. The sponsor's separation from the appellant was not merely of short duration (during which it would normally be easier to demonstrate the continued exercise of 'sole responsibility' by an absentee parent). On the contrary, the separation started when the appellant was just four years old, and had lasted for some fourteen years as at the date of decision.
2. Whilst the sponsor was the main breadwinner for her three children during that period, the evidence before me is that her contact with her family in the Philippines, whilst regular, was not very frequent. On the sponsor's own evidence, which I have accepted, she telephoned home about once every two weeks on average.
3. The sponsor was not living during his lengthy separation from his mother with 'outsiders', e.g. family friends or paid carers. On the contrary, he lived for the whole of that period with his close relatives, in the form of his grandparents and his two elder brothers, in what appears on the evidence before me to have been a close and loving family. In general close relatives are more ready to take responsibility for the day-to-day care and control of a child than an 'outsider' would be prepared to do.
35. Whilst I have not found it an easy decision to make, having given careful consideration to all the evidence which is before me and in the light of the authorities which have been cited on the appellant's behalf, I have come to the conclusion that in the particular circumstances which are before me, the sponsor's self-sacrificing absence from her family for so many years in a distant land and the relatively limited degree of her involvement in the upbringing and day-to-day care and control of her children during that period do not, on the evidence, amount to 'sole responsibility' for the purposes of paragraph 297(i)(e). It is therefore with some regret that I find against the appellant on this issue."
"Further and/or alternatively in relying upon the absence of day to day control and care for the appellant the adjudicator applied the wrong test in considering whether the sponsor had sole responsibility ..."
"... having given careful consideration to all the evidence which is before me and in the light of the authorities which have been cited on the appellant's behalf, I have come to the conclusion that in the particular circumstances which are before me, the sponsor's self-sacrificing absence from her family for so many years in a distant land and the relatively limited degree of her involvement in the upbringing and day-to-day care and control of her children during that period do not, on the evidence, amount to 'sole responsibility' for the purposes of paragraph 297(i)(e). It is therefore with some regret that I find against the appellant on this issue."
Contrary to Mr Lewis' submission, this is not a conclusion based solely on the absence of day-to-day care or day-to-day control. It referred expressly to the sponsor's limited degree of involvement in the applicant's "upbringing" generally. Having regard to length of separation and relative infrequency of contact, and the close and long involvement of grandparents and other family members with whom the applicant was living (factors all mentioned in paragraph 34), I find it impossible to fault the adjudicator's conclusion, or to regard it as one which was in any way unrealistic. The adjudicator had to make a judgment on the facts. The judgment at which he arrived is not one to be interfered with in any way lightly and was well within the ambit of the permissible.
ORDER: Appeal dismissed; section 11 order; detailed assessment of the Appellant's Community Legal Services Funding certificate.
(Order not part of approved judgment)