United Kingdom Asylum and Immigration Tribunal

QZ (Children;Sole Responsibility;Entry Clearance) China [2002] UKIAT 07463

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 03/02/2003

Date Determination notified: 28 March 2003

Before Mr S L Batiste (Chairman) Mrs R Faux Mr C A N Edinboro
Between

 

QZ	APPELLANT
and
ENTRY CLEARANCE OFFICER	RESPONDENT

DETERMINATION AND REASONS
1. The Appellant, a citizen of China, appeals, with leave, against the determination of an Adjudicator, Miss J Grimmett dismissing his appeal against the decision of the Respondent on 4 April 2001 to refuse entry clearance under paragraph 298 of the Immigration Rules as the child of a parent settled in the UK. Before us, Mr J M Labelle represented the Appellant and Mr S Walker, a Home Office Presenting Officer, represented the Respondent.
2. Both representatives agreed at the outset of the proceedings that the only substantive issues before the Tribunal were the failure of the Adjudicator to make any findings with regard to Article 8, and whether the Adjudicator had erred in her dismissal of the appeal under paragraph 298(i)(c) because it was not established that the Appellant's mother, who was settled in the UK, had failed to show that she had sole responsibility for him.
3. The relevant part of paragraph 298 states as follows:

298. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a parent, parents or a relative present and settled in the United Kingdom are that he:

(i) is seeking to remain with 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) one parent is present and settled in the United Kingdom and the other parent is dead; or

(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child's upbringing; or

(d) one parent or a relative is present and settled in the United Kingdom 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

4. Mr Labelle argued that the decision by the Respondent and the rejection of the appeal by the Adjudicator under paragraph 298(i)(c) was not accord with the Home Office guidelines of December 2000, which are still in force, and provide that "where a custody order exists giving responsibility for the child to the parent who settled in the UK, this should normally be accepted as evidence that the "sole responsibility" requirement is met."
5. Mr Walker accepted that the Chinese custody order was valid. It granted legal responsibility solely to the Appellant's mother from some three months before the decision by the Respondent. Whilst legal responsibility is not the same as sole responsibility, this period of some three months prior to the date of the decision was sufficient to establish that she had sole responsibility at the time of the decision under appeal, and he could not suggest any reason why the normal practice of the Home Office as indicated in the guidance note should not be followed on the facts of this appeal. He also very fairly accepted that both the Respondent and the Adjudicator had attached undue adverse weight to the Appellant's mother's inability to return to China earlier after settlement, because her passport had been lodged with the Home Office and there were at that time significant delays in processing passports.
6. The Tribunal agrees with these submissions. It accepts that prior to January 2001 there were doubts about whether the mother exercised sole responsibility for the Appellant for the reasons stated both in the Explanatory Statement and the determination. However it is clear from the evidence that the Chinese divorce was made absolute on 11 January 2001 and it granted legal responsibility for the Appellant to his mother alone from the date. The evidence from that date supports the claim that thereafter at least she exercised sole responsibility in accordance with the court order. The Court of Appeal in Nmaju in [2001] INLR 26 considered the "sole responsibility" requirement of paragraph 298 of the Immigration Rules. It held that a foreign court order granting legal responsibility was a relevant factor but not decisive, and that the Rule did not include any specific time requirement as to how long that sole responsibility should have been exercised. Time was relevant but not conclusive. Therefore it follows, on the facts of this appeal, that the Appellant has satisfied the burden of proof upon him in respect of paragraph 298 and was entitled to entry clearance. Also on the facts of this appeal, the Article 8 claim must follow the result of the appeal under the Rules.
7. For the reasons given above this appeal is allowed.