AA (HC395 para 297;Sole Responsibility) Ghana  UKIAT 06687
Date of hearing: 08/10/2002
Date Determination notified: 20 February 2003
|Entry Clearance Officer - Accra||RESPONDENT|
"1. The appellant was a 17-year-old girl wishing to settle with her mother in the UK. Her mother had first gone to the UK in 1986 when the appellant was 3-years-old. The appellant provided her original birth certificate (Appendix B) and I was satisfied that they were related as claimed. The sponsor had been granted ILR in February 1995. I noted that the sponsor was in full-time employment, had sufficient savings and was living with her husband in adequate accommodation in the UK (Appendix C).
2. However, I found the following points to be of interest in considering whether the sponsor had had sole responsibility for the appellant and whether there were any serious or compelling considerations to take into account.
· The appellant had been 3-years-old when her mother left Ghana for the UK. She had not applied to join her mother in the UK until 3 months before her 18th birthday. Her mother was granted ILR in 1995 (Appendix D) but did not return to see her daughter until 1998. The appellant claimed that her mother had spent 5-6 months in Ghana at that time but as there was no full copy of her passport I could not be satisfied that this was the case. The sponsor had not returned to see her daughter since 1998. In any case, the fact remained that out of almost 18 years of her daughter's life, the sponsor had only taken care of her for 3½ years of it.
· When the sponsor went to the UK she left her daughter with her mother, the appellant's grandmother. The appellant now said her grandmother was too old to look after her but did not mention if she was in ill-health. However, I was not satisfied that 3 months before her 18th birthday her grandmother was suddenly too old to take care of her.
· There was no evidence of any contact between the appellant and the sponsor. No cards, letters, itemised phone bills or remittances. The appellant said that her mother only started writing to her when she was around 12 years old. She said she spoke to her on the telephone before she was 12 but it was evident that the amount of time the sponsor had had contact with her daughter was outweighed by the amount of time she had not been in contact with her. The appellant said her mother called her from her home so itemised telephone bills should have been submitted. The appellant said that her mother paid her school fees but there was no evidence of any remittances sent from the sponsor. This was further called into question when the appellant's father, in his interview, said that he paid for all the child's school fees, not her mother. The appellant's father also said that the grandmother paid for the appellant's day-to-day living expenses. He also gave her extra money sometimes when she was at school. It was evident that the mother had no financial responsibility for her daughter at all and did not pay towards her upkeep.
· The sponsor had also paid very little part in the emotional upbringing of her daughter. The appellant had chosen her own schools and if she had a problem she talked to her grandmother. The appellant also visited her father at almost every school holiday before going to her grandmother. Taking all of the above factors into consideration I was not satisfied that the sponsor had had sole responsibility for her daughter.
· I then considered whether there were serious and compelling family or other considerations which would make exclusion from the UK undesirable but I could not find any. The appellant was living with her grandmother who had been capable of looking after her for the majority of her life. She had her father in Ghana whom she saw on a regular basis and who supported her financially. She also had three Aunties on her mother's side of the family. The appellant had managed to live without her mother's guidance for almost all of her life. Now that she was a young woman it was not credible that she professed to need to join her mother after such a length of time without her.
I then reviewed the application as a whole and accordingly refused the application in accordance with paragraph 197 of HC395."
7.1 I have had the opportunity of hearing evidence from the sponsor. I find her a genuine person and a reliable witness. I accept that what she told me is the truth.
7.2 I will now deal with the concerns of the respondent as laid down in pages 5 & 6 of her letter to the ICD of the 30.10.01. The ECO was not satisfied that the sponsor had spent 5-6 months in Ghana in 1998. I have seen a copy of the sponsor's passport from which it is clear that she spent 5½ months in Ghana in 1998.
7.3 I accept the evidence of the OWUSU Memorial Clinic that the appellant's grandmother is no longer well enough to take care of her granddaughter. I also note the grandmother is 71.
7.4 I accept that the sponsor and the appellant have kept in touch over the years and I have seen proof of this.
7.5 I do not agree that "the mother had no financial responsibility for her daughter at all and did not pay for her upkeep." I find that the mother was responsible for the school fees and other expenses and I have seen the evidence of the money she has sent to the appellant's grandmother.
7.6 I accept the evidence of the sponsor about her daughter's relationship with her father. I note that the visits of her father did not extend beyond a night at the end of each school term.
7.7 In terms of 'sole responsibility' I find that the appellant's mother has had sole financial responsibility for her daughter. I find that she has sent money to her mother, Mrs Oforiwaa, for her daughter's upkeep since she arrived in the UK. I find that she has paid for her daughter's schooling. I am not swayed by the appellant's answer that she chose the school'. It is clear from Mrs Nakama's evidence that she wanted her daughter to go to a girl's boarding school and she was closely involved in the choice of school.
7.8 Clearly, the overall responsibility has been shared with the sponsor's mother. I now consider whether there are serious and compelling family considerations which would make exclusion from the UK undesirable. I find that there are. The appellant's relationship with her father is clearly limited. She sees him at the end of each school term for a night. The real relationship to consider is that with her grandmother. I find that the grandmother is not in good health and is now unable to look after the appellant. It was suggested by Mr Payne that she could live alone. I find that suggestion to be completely unrealistic in Ghana. The appellant is at an age when she needs the help and advice of her mother, probably more than at any time in her past. I note and accept that her mother wanted her to go to boarding school and she could not afford such a school in the UK. The appellant applied for settlement at the end of her time at boarding school I would have grave concerns for the emotional stability and safety of this appellant if she is no longer able to live with her grandmother.
7.9 On the basis of the evidence before me I find that, on the facts that were available at the date of the decision and on the balance of probabilities, there are serious and compelling family considerations which would make the appellant's exclusion from the UK undesirable.
8.1 The appellant has discharged the burden of proof upon her to the standard required in cases of this nature and I find that the decision of the respondent was not in accordance with the law and the relevant Immigration Rule.
8.2 Her appeal against refusal of a visa with a view to admission to the UK for settlement as the daughter of Mrs Beatrice Ankama is allowed.
9. Human Rights
9.1 I have also considered whether the decision would give rise to a breach of the appellant's European Human Rights under Article 8 of the European Convention on Human Rights (ECHR).
10. Article 8
10.1 Article 8 provides the qualified rights for respect for a private and family life, a person's home and correspondence. The burden of proof is upon the appellant to show that she has a family life and, that there is a reasonable likelihood there is, or would be, an interference with it. The appellant needs to show that it is not reasonable to expect her private life to be conducted elsewhere.
10.2 I find there would be an interference with the appellant's right to carry on her family life if she were not allowed to join her mother in the UK. I find it is not reasonable to expect her family life to be conducted elsewhere as she was only 17 at the time of the application and remains a young and vulnerable woman; her grandmother can no longer look after her and her relationship with her father is limited to a night at the end of each term. That interference is in accordance with the laws in as far as the Immigration Rules are concerned. The legitimate aims of the interference are the cost to the public purse if the appellant has to be supported by public funds. However, placed in the context of this case, I find to the relevant standard that the appellant is not likely to have recourse to public funds as her mother will support her (and the respondent has never disputed the ability of the sponsor to support and accommodate her daughter). I find, therefore, that the interference would not be proportionate to the legitimate aim to be achieved.
10.3 I have taken into account the case of Mahmood v SSHD (CA, 2001). I agree with Ms Boaitey's submission that this appeal is different from a 'Mahmood' situation. In this case the family exists already and the child does not have a choice.
11. Decision on the Human Rights Appeal
11.1 The appeal is allowed under Article 8 of the ECHR."