IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-
2024-000775
First-tier Tribunal Nos: HU
/51945/2023 &
IA/00719/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
2
nd May 2025
Before
UPPER TRIBUNAL JUDGE RINTOUL
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
Aditya Rai
(NO ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation
:
For the Appellant: Ms Stein, instructed by SAM Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer
Heard at Edinburgh on 16 April 2025
DECISION AND REASONS
1.
The appellant appeals against the decision of the Secretary of State to refuse him entry clearance to the United Kingdom as the dependant of his mother, Ambika Sunwar ("the sponsor") on 31 January 2023.
2.
The appellant's appeal against that decision was dismissed by the First-tier Tribunal for the reasons set out in a decision promulgated on 11 January 2024. For the reasons set out in my decision promulgated on 17 January 2025, that decision was set aside. A copy of that decision is attached to this decision.
3.
The sole issue in this appeal, which is a remaking, is whether the appellant's sponsor had sole responsibility for his upbringing. In addressing that issue, we bear in mind that it is the Secretary of State's case that there was no sole responsibility in this case.
The Hearing
4.
We heard evidence from the sponsor, who adopted her witness statements, adding that she had paid her son's medical bills, that he tells her he wanted to go out on picnics or other trips and she tells him whether or not to go. She said that she had been responsible for him from when the time he was born and that she had made all the decisions for him before she left Nepal.
5.
She confirmed that her son studies at the Little Angels' Secondary School, that it was she who had decided it because it was near where they used to live and was the best school in the area. She said it was she who decided that he should live with his aunt.
6.
In cross-examination, the appellant said that it was an agent who had made the mistake over whether she had left in 2020, when in fact it was 2021 and it was the same agent she had used both for her application and for her son's application. She said that when she had decided that her son should go to Little Angels' she had not considered other schools. Her son is now age 20. She said he was still at secondary school because he had failed some years in the past and had to repeat classes. She said that he works from time to time, if there is a shortage of money doing part-time work such as canning vegetables and digging on the farm. He does so only sometimes. She said that it is her hope that he will come to live with her in Edinburgh.
7.
Mr Mullen submitted that the credibility findings of the First-tier Tribunal were not in dispute and that further doubt was cast on the sponsor's credibility as, despite the agent having previously submitted her son's details to the come to the United Kingdom she had used the same agent. He submitted further that there was no evidence to support that he still attends secondary school or that this was the usual at his age in Nepal. He submitted that maintenance of the status quo weighed heavily against the appellant in the Article 8 balancing exercise and that just providing money did not strengthen the case under Article 8.
8.
Ms Stein submitted that a proper analysis of the circumstances following
TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 49 and
Nmaju v SSHD [2001] INLR 26
had to be undertaken. She submitted that the starting point is that the appellant was not living an independent life and it had been accepted that the father had had no role in the appellant's life. The sponsor had looked after him until she had left in 2020 and he had only moved in with the aunt in 2020 or 2021, the difference in date making no material difference.
9.
Ms Stein submitted that the appellant's aunt did not take on a mother's role and that all the important decisions had been taken by the mother, who had left in 2021, the appellant then moving into the aunt's, who lives closer to the school he attends.
10.
She submitted that the letter from the school was short but to the point and confirmed the evidence of the sponsor and appellant and that substantial evidence, which was communication between the appellant and sponsor, as well as evidence of transfer of funds.
The Law
11.
Paragraph 297 of the Immigration Rules provide, so far as is relevant, provides as follows: 297. The requirements to be met by a person seeking 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 are that he: (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: ... (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
12.
We note from the judicial headnote in
TD (Yemen):
"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".
13.
We also take into account what was held in
TD (Yemen at [34] and [49]- [50]:
14.
As was noted in
Nmaju v SSHD [2001] INLR 26 it is evident that there may well be a change in circumstances. Thus, it is clear that the question of whether sole responsibility is exercised by the mother needs to be answered as at the date of decision.
15.
As was made clear in
TD Yemen, as affirmed in
Buydov v Entry Clearance Officer, Moscow [2012] EWCA Civ 1739 in each case the issue of sole responsibility remains a question of fact.
16.
We remind ourselves that there are many reasons why a witness may not have told the truth and that it does not mean that the overall evidence is automatically to be disregarded.
17.
We note that the respondent has made no submissions whatsoever about the reliability or otherwise of the appellant's witness statement. Whilst we bear in mind that he has not been cross-examined, no point was taken on that, nor indeed was any point taken on the fact that the appellant has much to gain in persuading us that his mother had sole responsibility for him. We bear in mind that there is a consistency in what he has said compared with the background evidence.
18.
We note in particular that there is evidence of the transfer of funds and that he attends the Little Angels' School, which is confirmed by a letter from that school. No submission was made that we should not attach weight to that letter.
19.
Accordingly, we attach weight to the appellant's witness statement as evidence that his mother has made all the decisions for him.
20.
We bear in mind that the appellant was born in November 2004. He therefore lived with his mother. It does not appear to be a dispute and indeed the Secretary of State has not submitted, that the appellant's father had any part in his upbringing. It has not been submitted either that the appellant lived with his mother until she left in 2021 until, at the earliest 2020. By that point, he would have been 16. It is not difficult to conclude in the light of all the evidence that his mother had had sole responsibility up to that point. He lived with her; she provided for him; she cared for him; and, she was his sole parent.
21.
Taking the case at its less favourable, the appellant went to live with his aunt in 2020. There is some confusion over why the Little Angels' School was chosen. In examination-in-chief, the sponsor said it was because it was nearby and was the best school in the area. Her answers in cross-examination were less clear but, given the difficulty there was with the interpreter at that point and in the interpreter understanding the questions, as well as connection difficulties, we attach no weight to any apparent discrepancy.
22.
Looking at the appellant's evidence and also the evidence of communication which shows lengthy chats, we are satisfied that there continued to be significant contact between the appellant and sponsor. We have no reason to doubt that although he was living with his aunt, it was the sponsor who continued to make all the important decisions in his life, as he had done for the first sixteen years of his life.
23.
Notwithstanding the adverse credibility findings with regard to the sponsor, we find looking at the evidence as a whole, including the evidence of the appellant, to which we attach significant weight, we are satisfied that the sponsor retain sole responsibility for the appellant and that her evidence on that issue is credible.
24.
Accordingly, for these reasons, we are satisfied that the requirements of the Immigration Rules were met given what was said in the refusal letter and the decision of the First-tier Tribunal. In particular, we are satisfied that the sponsor's income is sufficient, as shown by the employment letters, P60 and payslips and the housing report prepared for the First-tier Tribunal appeal.
25.
For these reasons, we are satisfied that the appellant meets all the requirements of the Immigration Rules. Accordingly, in line with
TZ, we are satisfied that the appellant meets the requirements of the Immigration Rules, there is no proper reason for the public interest in refusal of entry clearance. Accordingly, we allow the appeal on human rights grounds.
Notice of Decision
(1)
The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.
(2)
We remake the appeal by allowing the appeal on human rights grounds.
Signed Date: 28 April 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal
ANNEX - ERROR OF LAW DECISION
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-
2024-000775
First-tier Tribunal No:
HU/51945/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
.......................................
Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
ADITYA RAI
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
:
For the Appellant: Mr Forrest, instructed by Sam Solicitors
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer
Heard at Edinburgh on 9 October 2024
DECISION AND REASONS
1.
The appellant appeals with permission against a decision of First-tier Tribunal Prudham promulgated on 11 January 2024, dismissing his appeal against a decision of the Secretary of State to refuse him entry clearance to the United Kingdom as the dependant of his mother, Ambika Sunwar ("the sponsor") on 31 January 2023.
2.
The appellant is a citizen of Nepal. It is his case that his father left the family in 2005 and his current whereabouts are unknown. Since then, he was raised by the sponsor who is a single mother but in 2021 she applied for leave to enter the United Kingdom after which he was looked after by one of his mother's relatives, Mrs Rai. It is also his case this was a temporary basis and that the sponsor continued to pay for his education and to have responsibility for him.
3.
The Secretary of State did not initially accept that the sponsor and appellant were related as claimed and the refusal by the Entry Clearance Officer was on that basis. Subsequently, following the service of the Secretary of State of a DNA report, the relationship was accepted but the respondent then raised the issue of sole responsibility, as set out in the respondent's response to the appeal skeleton argument dated 27 August 2023.
4.
The judge heard evidence from the sponsor and also had before him a stitched bundle.
5.
The judge noted [14] that in her application for entry to the United Kingdom the sponsor had stated that she had no dependent children. And concluded, given the difference in explanations offered for this omission between statements dated 11 October 2022 and 3 July 2023 that she had knowingly omitted to mention her son in her application for entry clearance.
6.
The judge noted also [15] inconsistencies between the statement of Mrs Rai and the sponsor as to when the appellant had been left in Mrs Rai's care, albeit that Mrs Rai's chronology was consistent with that of the appellant, that is that he had lived with her since April 2020. The judge found the explanation - that the appellant began living with Mrs Rai when he enrolled at Little Angels Secondary School in Kathmandu in 2020 - was consistent with the sponsor saying she had no dependents when she applied for entry clearance as he was living with Mrs Rai at that point.
7.
The judge noted [16] the absence of evidence of money transfer receipts prior to September 2022 and that the evidence of contact between the sponsor and the appellant was limited to screenshots of brief texts in Nepalese which were not translated.
8.
The judge found [17] that:-
(a)
he had not been provided with evidence that the sponsor took all the major decisions in the appellant's life;
(b)
the statements of Mrs Rai and the sponsor were contradictory and vague over the reasons for the basis of which the appellant had gone to live with Mrs Rai;
(c)
little weight should be attached to the evidence of the sponsor and Mrs Rai, a failure to declare the appellant as a dependant being indicative of the arrangements in place at the time which was that Mrs Rai was caring for the appellant; and
(d)
the sponsor had not had sole responsibility for the appellant and thus he did not meet the Immigration Rules.
9.
The judge then went on to dismiss the appeal concluding that it would not breach the appellant's Article 8 rights to refuse entry clearance.
10.
The appellant sought permission to appeal on the grounds that the judge had erred:-
(a)
in considering the issue of sole responsibility given that it had not been raised by the Entry Clearance Officer;
(b)
in failing properly to apply
TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 49.
11.
On 4 March 2024 First-tier Tribunal Judge Boyes granted permission.
12.
On 11 March 2024 the Secretary of State served a response pursuant to Rule 24, submitting that she had not acted unfairly in raising the issue of sole dependency given that it had been raised on 27 August 2023 well before the hearing and that it was evident that the judge had clearly considered the correct test of sole responsibility at paragraph 17.
The Hearing
13.
I heard submissions from Mr Forrest and Mr Mullen. In addition, I had before me a bundle prepared for the hearing and a skeleton argument from Mr Forrest. Mr Forrest did not seek to persuade me that the judge had erred by considering the issue of sole responsibility, but that he had failed to evaluate evidence as stating simply "It was said in the statements of the sponsor and Mrs Rai that the sponsor took all the major decisions in the life of the appellant. However I was not provided with any evidence of this".
14.
Mr Forrest submitted this was an error notwithstanding the judge going on to explain why he did not accept the evidence of Mrs Rai and the sponsor, attaching little weight to their evidence given the inconsistencies noted above.
15.
It was submitted further that the findings with regard to the position of the father and the absence of any findings as to who had made important decisions about the appellant were serious matters.
16.
Mr Mullen relied on the Rule 24 notice submitting that the error is not made out and the judge directed himself properly as to the law.
Discussion
17.
Paragraph 297 of the Immigration Rules provide, so far as is relevant, provides as follows:- 297. The requirements to be met by a person seeking 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 are that he: (i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: ... (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
18.
I note from the judicial headnote in
TD (Yemen):
"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".
19.
I also take into account what was held in
TD (Yemen at [34] and [49]- [50]:
20.
As was noted in
Nmaju v SSHD [2001] INLR 26 it is evident that there may well be a change in circumstances. Thus, it is clear that the question of whether sole responsibility is exercised by the mother needs to be answered as at the date of decision.
21.
As was made clear in
TD Yemen, as affirmed in
Buydov v Entry Clearance Officer, Moscow [2012] EWCA Civ 1739 in each case the issue of sole responsibility remains a question of fact.
22.
I am not satisfied that the judge erred as is averred in ground 1. It was established law when the ground of appeal was that the decision was not in accordance with the Immigration Rules that, in order to succeed in an appeal, an appellant must satisfy
all the provisions of the Immigration Rules. The leading decision on that,
R v IAT and another ex parte Kwok On Tong [1981] Imm AR 21, predates the changes in the law whereby an appeal is effectively a human rights appeal, nonetheless whether or not all the requirements of the Immigration Rules are met is a significant issue in deciding where the public interest balance lies in assessing an Article 8 claim. Here, the appellant was given several months' notice of the Secretary of State's decision to change her position which was clearly open to her. There would have been no purpose served, having concluded that the appellant and sponsor were not related as claimed, to go on to consider other provisions of the Rules but it was entirely open to her to do so once that issue had been resolved. Accordingly ground 1 is not made out.
23.
I turn next to ground 2. As Mr Forrest accepted, the judge's findings at paragraph 14 and 15 were sustainable. There were clear discrepancies on an important matter, that is whether or not the sponsor had a child or not. The question then arises as to what findings the judge made with respect to sole responsibility. I remind myself that whether or not one parent has exercised "sole responsibility" is a question of fact. I bear in mind also that the judge had heard all the evidence and that great care should be taken in disturbing a finding of fact by a lower Tribunal. While it is evident that the judge did have regard to the issue of sole responsibility and appears to have borne
TD (Yemen) in mind, at [43] the Upper Tribunal emphasised that each case must turn on a detailed consideration of all the facts. I bear in mind also what was said at [49] and [52].
24.
There is little indication that this type of analysis was undertaken by the judge who simply decided not to attach weight to the evidence of the sponsor and Mrs Rai. But that did not absolve him from not taking into account the evidence of the appellant which is simply not discussed on this point. Further, the judge appears to have considered that the fact Mrs Rai was apparently caring for the appellant was dispositive of the matter. I note also that in the skeleton argument put before the First-tier Tribunal, express reference was made to the considerations that need to be taken into account at paragraphs 8 and 9.
25.
It is, however, of note that there is no witness statement from the appellant and it is also instructive that the inconsistencies identified, as Mr Forrest submitted, relate to the timing of the appellant ceasing to be living with his mother.
26.
As an aside, I note that the phone logs referred to by the judge, are not simply text messages but are in fact records of quite long video calls passing between the two. Whilst what transpired during those calls was not in evidence, there is a mischaracterisation of the type of the evidence taken into account.
27.
What the judge appears to have done is simply to have found that there was a caring relationship whereby the appellant was living with Mrs Rai but this is not the test.
28.
Accordingly, for these reasons I conclude that the decision of the First-tier Tribunal involved the making of an error of law and I set it aside. I am, however, satisfied that this should be confined to the issue of sole responsibility. For the reasons given above, the findings with regard to the inconsistencies and credibility must be preserved but of course it does not follow that simply because someone has lied in one respect of the case that their other evidence is automatically to be disregarded.
Notice of Decision
(1)
The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
(2)
I direct that the appeal be re-made in the Upper Tribunal on a date to be fixed with a time estimate of 2 hours
(3)
If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
(4)
If the sponsor wishes to give additional oral evidence, she must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction [3] above, and must state if an interpreter is required, if so in which language.
(5)
The appellant must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction [3] above
Signed Date: 13 January 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal