United Kingdom Asylum and Immigration Tribunal

OM (Children: settlement - cross border movement) Jamaica [2005] UKAIT 00177

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 29 November 2005

Date Determination notified: 15 December 2005

Before

Mr G Warr

Senior Immigration Judge

Ms C Jarvis

Senior Immigration Judge

Between

OM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms S Gibbons of Counsel instructed by French and Co. Solicitors

For the Respondent: Mr N Smart Home Office Presenting Officer

DETERMINATION AND REASONS

Cross border movement of children must be demonstrably lawful. In particular where a child is being separated from one parent or other adult carer who holds parental responsibility in law. See the Immigration Rules HC395, as amended, Part 8: Children Paragraphs 296 – 316F. This determination considers entry into and stay in the UK of children, for settlement, and specifically the implied requirement to show that the cross border movement in question has taken or will take place with the written consent of the parent in question, the order of a court or other appropriate measure. In particular, consideration is given to Paragraph 298(d) of HC 395:

' one parent is present and settled in the UK, and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child's care'.

1. This is the appeal of the Respondent, who appeals the decision of an Immigration Judge, [......], issued on 15 July 2005, to allow the Appellant's appeal against the Respondent's decision made on 11 May 2005 to refuse to vary the Appellant's leave to enter or remain in the United Kingdom (UK), under Paragraph 322(9) of HC395.
2. The history of the matter is this. The Appellant, whose date of birth is given as [XXXX]1994, is a national of Jamaica. She last arrived in the UK on 17 July 2004, with a visit entry clearance issued in New York and valid from 13 July 2004 to 13 January 2005. She was given leave to enter as a visitor.
3. On 6 January 2005, the Appellant applied for leave to remain in the UK as the dependant daughter of her mother,[......], who has leave to remain in the UK until 30 July 2006 as the spouse of a person present and settled in the UK.
4. The Respondent requested that supporting documentary evidence be lodged, and although there was one response, there was no response to the requests of 8 February and 11 April 2005. As a result, when the Respondent considered the application, he took the view that the Appellant had failed to produce, within a reasonable time, documents or other evidence required by the Respondent to establish her claim to remain in the UK under the Immigration Rules. He was therefore not satisfied that the Appellant had shown that she met the requirements of the Rules to remain in the UK as the dependant child of her mother and step-father, and her application was refused.
5. On appeal to the Immigration Judge, the Respondent could find no reason to reverse his decision. He noted that an allegation of breach of Article 8 rights was made. He takes the view that the state has the right to control the entry of non-nationals into its territory, and that Article 8 does not provide an individual with choice as to where they enjoy their private and family life. There was nothing that he could see from the evidence that indicated that the decision would breach the Appellant's Article 8 rights.
6. The Immigration Judge heard oral evidence from the Appellant's mother and step-father, and received some documentary evidence from, and sent by the Appellant's paternal grandmother who is the United States of America (USA), which is where the Appellant was residing, with her father, before she came to visit her mother in the UK. The Appellant did not attend court given her young age. Nor did she attend the hearing before us.

Summary of the Findings of the Immigration Judge

7. The Immigration Judge found the Appellant's mother and step-father to be 'very credible' and accepted their evidence in its entirety. His findings of fact are not entirely clear as they are made by reference back to the recital of the evidence rather than in specific separate terms, which is never satisfactory as a method of fact finding. Not least because it is soften the case that what is accepted is no more than that a witness has given evidence to the best of their knowledge and genuine belief, as opposed to clear, sharp findings of primary fact. In summary, what is accepted, as opposed to found, appears to be as follows.
8. The Appellant is a citizen of Jamaica born on [......]1994, in Kingston, to [......] and [......]. In the year 2000, the Appellant went with her father and paternal grandmother, [......], to live in the USA. It seems that [......]already lived in the USA and that the Appellant's mother had accepted her offer to have the Appellant live with her. It is said that the Appellant has a 'green card' and has the right to reside in the USA, although the Immigration Judge does not make any specific finding, in terms, about that.
9. It appears that the relationship between the Appellant's biological parents was very short-lived, but that her paternal grandmother nevertheless wished to assist her father in taking responsibility for her upbringing and well-being. According to a letter from the Appellant she did not wish to leave her mother and go to the USA and she was unhappy about the move. Her mother was unable, it seems, for reasons that are not entirely clear from the determination, to continue to care for the Appellant at that time.
10. The Appellant's mother continued with her life in Jamaica and entered into another relationship with a [......], by whom she has a son.
11. In 2002 the Appellant's mother came to the UK as a visitor to see an aunt. The aunt decided to send her to college. In July 2003 she met [......] and the two were married o 13 August 2003. The Appellant's half-brother, [......], came to the UK to join his mother and step-father in 2003 (we note that his status in the UK is unknown).
12. The Appellant visited her mother and other family in the UK between June and September 2003. The Appellant told her mother that she was not happy because she was afraid of her dad who was asking funny things. He had hit her and the police had been called.
13. The Appellant's mother states that she was told through telephone calls to the sister of the Appellant's father that the father was mentally ill and was suffering with a drug related illness. She was also apparently told that the grandmother, [......], could no longer take care of the Appellant due to her increasing age and failing health.
14. One Sunday, the Appellant's mother telephoned the paternal grandmother and told her that she would take the Appellant to live with her in the UK. The paternal grandmother agreed as she was having problems.
15. We note that instead of making an application for the Appellant to join her for settlement, a visit application was made, and the Appellant duly arrived, as a visitor, on 17 July 2004 (the Immigration Judge appears to mistakenly refer to June at 16(q)).
16. It is said that the Appellant told her mother that she did not want to go back to the USA as her father hit her and was abusive. Her grandmother was unable to help because of her age and ill health. Her father was hospitalized for a drug-related illness and is in a rehabilitation centre.
17. The Appellant's mother and step-father wish to have her to live with them. They are both working and can afford to have her. Documents were produced to support the claimed financial position. Her mother's mother, brother and sister are also living in the UK and can help with the care of the Appellant. (We note that the evidence in support in this regard is not recited by the Immigration Judge so that it is impossible to know whether it showed on balance that maintenance and accommodation requirements are met).
18. The Appellant has since 13 September 2004 been attending school in the UK at [......] Primary and is settled there, according to a letter dated 2 December 2004 from the school.
19. The Appellant's mother stated that she had been sending money to the USA for her upkeep in the sum of £100.00 but did not have receipts.
20. It had not been possible to obtain the written consent of the Appellant's father to her living in the UK. It had not been possible to obtain full reports on his medical condition from the hospital. There was a letter from the paternal grandmother to say why she could not continue to look after the Appellant due to age and infirmity. She did not have any court order or other legal responsibility for the Appellant.
21. The Immigration Judge noted a letter from the Appellant in which she said that she was physically abused by father who had spent time in jail and who had a mental illness. She preferred to live with Mum.
22. There is a letter dated 9 June 2004 from the Florida Department of Children and Families, addressed to the paternal grandmother, stating that the Appellant's father had recently been admitted to the Florida State Hospital. There is also what appears to be a hospital admission notice dated 6 September 2004. (We take the view that it is in fact dated 9 June 2004 as the date is normally written in that way in the USA, and that would marry with the date of the letter).
23. The Immigration Judge found, in relation to paragraph 322 that it was unreasonable of the Respondent to require the Appellant to produce a form of written consent from her father to her being taken from his care in the USA, to reside in the UK with her mother, or, in the alternative a court order to that effect.
24. He further found that it was unreasonable to expect the Appellant to obtain a hospital report about her father's current condition and prognosis. It was apparent from information already received that he had a mental illness and had been admitted to hospital. In addition, it was unreasonable to request a letter from the Appellant's paternal grandmother stating why she cannot care for her.
25. The Immigration Judge found that these items of evidence were not needed in order to find in favour of the Appellant. He found that she had met all the requirements of Paragraph 298 of HC395. She was joining one parent, present and settled in the UK and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child's care.
26. The Immigration Judge finds that although there are relatives in both the USA and Jamaica who could care for the Appellant, there are no relatives willing to do so and that there are other considerations which make her exclusion undesirable.
27. Insofar as Article 8 ECHR is concerned, the Immigration Judge finds that the matter turns on the issue of proportionality and that the circumstances are so exceptional as to demand an outcome different to that arrived at by the Respondent.

The Grounds of Appeal

28. The Respondent applied to the AIT for an order for reconsideration. That application was considered and an order was made by Richard Chalkley on 1 August 2005. He found that it was arguable that the Adjudicator had fallen into material errors of law. In summary, permission was granted in relation to the following points :

The Immigration Judge had erred at paragraph 54, and he had then gone on to speculate at 57 in relation to the treatment the Appellant's father has received or is still receiving as a result.

He appears to have erred in law in reversing the burden of proof at 59, and by failing to properly explain how the Appellant's circumstances amount to being exceptional within the sense intended by the Court of Appeal in Huang and Others v SSHD [2005] EWCA Civ 105.

Consideration and Findings

29. We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.
30. We have before us all the documentary evidence that was before the Immigration Judge, as well as a skeleton argument from Ms Gibbons.
31. We considered all the evidence with care, in the light of the oral submissions from both parties which we have recorded in full in our record of proceedings. Having heard initial argument going to the matter of whether the Immigration Judge fell into material error of law, we invited the parties to further address us on the assumption that we were to find such an error. Ms Gibbons submitted that the proper course would be a complete re-hearing of the evidence which would allow the Appellant an opportunity to provide fresh evidence. We indicated that the Appellant had already had considerable time in which to produce further evidence but had not done so. We noted that there was no suggestion before us of any relevant developments and indicated that it was difficult to see what proper purpose such a further hearing could serve.
32. In relation to the Article 8 aspect, Ms Gibbons submitted that the Appellant would feel uncomfortable if removed to Jamaica, and did not want to go to the USA for the reasons given in her letter and those advanced by her mother on her behalf.
33. At the conclusion of the hearing we reserved our decision, which we now give, with our reasons, which we are able to give without rehearsing all the submissions in detail, for reasons which will become apparent. We are persuaded that the Immigration Judge did fall into material error of law and we now set out those reasons.
34. We remind ourselves that when considering the burden of proof in this case, that burden rests with the Appellant and that the standard of proof is that of the balance of probabilities.
35. We take the view that the matter of the cross border movement of minor children is of the utmost importance. We find that it is implicit in the law and the Immigration Rules, through both domestic and international treaty law, that is it in the public interest, not least insofar as concerns the maintenance of fair immigration control; the prevention of crime and disorder and the economic well-being of the country, to ensure that public policy is that such cross border movement only takes place with scrupulous adherence to the relevant law, domestic, foreign, so far as domestic law permits, and international. It must also be ensured that the welfare of the child is a primary concern so that such movement is shown to be in the best interests of the child. Further, there must be no unlawful breach of the rights of any other properly interested party. This would of course include, but not be limited to, the rights of a biological parent.
36. In so finding we note that the purpose of the particular Rules in this regard is to facilitate family reunion and family life. However, the Rules cannot be interpreted as permitting this purpose to be achieved through the breach of other law, unless that is so stated in terms, in the law, which it is not. We have in mind, for example, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and in particular Article 8, the right to respect for private and family life, home and correspondence as incorporated into domestic UK law by the Human Rights Act 1998. As required by Section 3 (1) of the Human Rights Act 1998, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
37. There are other laws, including international treaties, relating to the cross border movement of children and to the recognition of orders made in the courts of other countries, including the family courts, which would also resonate here. For example, the Immigration Rules, at Paragraph 316D, set out specific requirements to be met by a child seeking limited leave to enter the UK with a view to settlement as a child for adoption under the Hague Convention.
38. It is common knowledge that an individual's relationship with his or her parents is of the most fundamental importance to the nature and quality of that person's daily existence, throughout his or her life, and to the ability to make life choices and to succeed in education, employment, and the making of relationships with others. To remove the Appellant from the USA to the UK is a very important step in her young life. If in so doing, her links with her father were to be severed permanently without her knowledge, and without the knowledge of a court or other body charged with protecting the interests of children such as the Appellant, this would adversely affect the ability of the Appellant to make and maintain contact with her father at a future date, should she so choose; as well as her ability to successfully come to terms with the proposed enormous changes. The interests of the Appellant are not paramount in an immigration case, unlike the interests of children who are settled in the UK, but are nevertheless important and to be fully taken into account when considering and deciding cases such as these.
39. In that light, we find that there is no support for Ms Gibbon's contention that it is unreasonable, or too onerous, to require the Sponsor to show that she has legal responsibility for the Appellant under the law of the USA or the UK, and that she has the written valid consent of the father, or the order of a court in the USA or UK, permitting the removal of the Appellant permanently from the jurisdiction, to the UK. The evidence before us reveals that there has been little or no attempt to approach the father about these matters, whether directly by the mother, or through a lawyer, doctor, social worker, or his own mother.
40. We find that to permit the Appellant to leave the jurisdiction of the USA to take up permanent residence in the UK without the formal consent of the father, or an order of the appropriate family court in the USA or UK, would be unlawful. We find that there is to be implied into the clause 'and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements' for the child's care, under sub-paragraph (d) of paragraph 298 of the Immigration Rules, a requirement to demonstrate, on balance, that the person with whom a child is to settle, is entitled in law to remove the child from the jurisdiction in which he or she has been living, and to have the child join him or her permanently in the UK.
41. We find that there is a similar implied requirement at Paragraph 298(c), where one parent has to show that she or he has had sole responsibility for the upbringing of the child. Likewise, at 298(b) where one parent is dead, there is an implicit requirement to prove that death to the required standard as well as to show that the adult seeking to bring the child to the UK, is the remaining parent and entitled to bring the child to the UK.
42. We find that it is wholly reasonable and appropriate to require the sponsoring parent or relative to satisfy an Entry Clearance Officer or the SSHD that he or she has parental rights and that any surviving parent or person with parental rights, has given his or her lawful consent to the removal of the child from the country of origin. Where such consent cannot be obtained or is unreasonably withheld, then a Sponsor should produce a court order dispensing with that consent. In circumstances where the infrastructure of a country was such that no courts or other legal / customary law system were in existence, through which such an order might be obtained, then alternative means of demonstrating lawful removal would need to be considered.
43. Further, we find that the Paragraphs in this section of the Rules, relating to children, imply the requirement that the child or children seeking settlement shall satisfy the SSHD that the fact of his or her presence in the UK or prospective entry; personal details; new home address and that of any school, have been notified to the Director of the relevant Local Authority Social Services Department and that the Department has acknowledged receipt of that information, and duly registered it so that it can be deployed as may be appropriate in order to protect the best interests of the child. In Paragraph 298(d), this requirement would appear to be implicit in the phrase 'and suitable arrangements have been made for the child's care.'
44. The registration that we refer to would assist the Social Services Departments, for example, by enabling them to check the various registers that are kept by law, to seen whether the names of any of the new carers are to be found on any of those registers. This is in no way an adverse reflection upon the mother and step-father personally, in this particular case. Rather it is to be seen as a general policy requirement that assists in ensuring the protection of the child or children in question, not least in the light of the recent findings of the enquiry into the death of Victoria Climbie. Victoria was sadly one child in a line of many others who have not received the protection from the adults in their lives, or from the authorities, to which they were entitled and which they deserved.
45. In the light of the foregoing, we take the view that the Respondent would have been failing in his duty under the law and Immigration Rules had he not requested the documentary evidence which was not produced and which led to the refusal of the application. We find that his decision to refuse the application for want of that evidence, which the Appellant had failed to produce within a reasonable time, was fully in accordance with the law and the Immigration Rules.
46. Insofar as the Immigration Rules are concerned, the burden of proving that she complies with all the provisions of the relevant Rule, said to be Paragraph 298, rests with the Appellant upon the balance of probabilities. We find that the Immigration Judge materially erred in law in finding that it was unreasonable of the Respondent to require sight of the documentary evidence requested.
47. We find that the Immigration Judge materially erred in finding that therefore the application had been wrongly refused under Paragraph 322(9) of HC395. We take the view that the Immigration Judge had jurisdiction to review the decision, given that the terms of the paragraph import discretion, in that an application to vary leave is normally to be refused where there has been a failure to produce documentation timeously, as opposed to refusal being mandatory, which it is, for example, under 322(1). But for the reasons that we give in this determination, we find that he materially erred in law in his finding and reasons that the Respondent's decision was wrong in law.
48. If we are wrong in that regard, and there was no jurisdiction in the Immigration Judge to review the decision pursuant to 322(9), we find that the Immigration Judge has materially erred in law in relation to the Article 8 aspect of the appeal for reasons which we shall come to in due course.
49. Assuming that we are right in our findings as to the jurisdiction to review the decision pursuant to 322(9); we find, in addition, that the Immigration Judge materially erred in law in finding that the evidence before him sufficed to demonstrate on balance that the Appellant had met the requirements of the Immigration Rules.
50. The proper course of action, we find, if it is the case that her father is under a legal disability by reason of his mental illness, and her paternal grandmother, as his next of kin, is unwilling or unable to assist herself; is for the Appellant, through her mother, to obtain an order or declaration from the relevant family court in the USA, or in the UK, as may be appropriate, giving her, or declaring that she has, lawful parental responsibility for the Appellant and permitting the Appellant to leave the jurisdiction of the USA for the purpose of residing on a long term basis in the UK.
51. In the course of that enquiry, the court would take into consideration the rights and interests not only of the Appellant, but also those of her mother and her half sibling, as well as her father and paternal grandmother and other properly interested persons.
52. It is alleged that the father has abused the Appellant and that he has been in jail. These are extremely serious matters. It is surprising that no investigation of these allegations appears to be underway, whether with the police or the social services, either in the USA or the UK. There is nothing to show that the mother has reported these matters to the proper authorities so that child protection investigations can be carried out. Certainly the court proceedings mentioned above would provide a forum form which such investigations would spring.
53. Once in possession of such an order or declaration, the Appellant would then be able to present that as an appropriate form of evidence in support of an application to settle in the UK with her mother. Without it, and without far more cogent evidence than was presented to the Immigration Judge, neither the Respondent nor the Immigration Judge is in a position to find, for example, that the allegations against father, or the assertion that he is too ill to care for the Appellant, are on balance true. It follows that the allegations, the letters from the authorities in the USA, and the information provided by the Appellant and her mother, step-father and grandmother, even if given in good faith, and genuine belief, are not evidence that suffices to show on balance that the requirements of paragraph 298 (d) have been met.
54. In addition, we note that mother has only limited leave to remain in the UK until 30 July 2006, as the spouse of a person present and settled in the UK. Therefore, on the evidence produced, it has not been shown that she is a parent present and settled in the UK for the purposes of Paragraph 298. A step-father is not included within the definition of parent as set out in Paragraph 6 of HC395, unless the biological father is dead, which is not the case here. The appeal fails for this reason also.
55. I addition, we find that the Immigration Judge materially erred in law in reversing the burden of proof at paragraph 59 of the determination. Here, he notes that there are removal directions to Jamaica, but that there are no suggestions of any person willing to care for the Appellant, although he finds that she has some aunts there. This is a reference to the notice of decision which states that if the Appellant's appeal is unsuccessful and she does not leave the UK thereafter, then she will be removed to Jamaica. There are, as yet, no actual removal directions. As already indicated, the burden of proof rests upon the Appellant so that it is for her to demonstrate to the balance of probabilities , that there are no relatives willing and able to care for her in Jamaica. That the Appellant has not produced evidence in this regard cannot, on any interpretation of the burden and standard of proof, suffice to make good this aspect of the evidence.
56. The Immigration Judge does not go on to examine the evidence and make findings in respect of each of the requirements of the relevant Rule. We find that he further errs in law in this regard also.
57. For all the foregoing reasons, we find that the reasoning, findings and conclusions of the Immigration Judge relating to the appeal pursuant to the Immigration Rules are fatally flawed and are not sustainable.

Article 8 ECHR

58. Turning to the Article 8 aspect of the appeal, we would not quarrel with the Immigration Judge's finding that the Appellant enjoys family life in the UK with her mother, step-father and half sibling. At paragraph 70, the Immigration Judge finds that the matter turns on the answer to the question whether removal of the Appellant would be proportionate. He goes on to find that it would not be proportionate. He gives no reasons, but merely relies, by reference back, upon his earlier findings of fact. We agree with the Respondent that he has failed to give adequate reasons for finding that the circumstances of this case reach the high threshold cited in the case of Huang and Others.
59. We have already indicated our reasons for finding that those aspects of the account recited by the Immigration Judge and summarized above, and which go to the heart of the matter, cannot stand. These include but are not limited to the situation in the USA so far as the Appellant's father is concerned and the allegations made against him. Father's willingness and ability, or otherwise, to care for and be involved in the life of this child, with or without paternal grandmother's assistance, as well as the matter of whether that is appropriate. In addition, the Appellant has not shown that there is no one to care for her in Jamaica.
60. It is not to be presumed that the Respondent would act in breach of the Appellant's Article 8 rights in sending her to either the USA or Jamaica. There is nothing to prevent her from making an application from abroad, in the proper way, under the Immigration Rules, to join her mother and other family, once her mother has become settled in the UK if she is not already settled. This will allow time for all the appropriate supporting evidence to be obtained. Ms Gibbons' final submission in relation to Article 8 matters was that the Appellant would feel uncomfortable in Jamaica. It is difficult to see how, on any reading of the evidence, the circumstances of this case can be regarded as truly exceptional as is required following the guidance in Huang and Others.

Decision

61. For all the above reasons, we find that the original Tribunal made a material error of law. The following decision is accordingly substituted: the appeal by the Appellant against the decision of the Respondent made on 11 May 2005, to refuse to vary leave to enter or remain in the UK as a dependent child and on human rights grounds pursuant to Article 8 ECHR is dismissed.

C JARVIS

Senior Immigration Judge

Date: 6 December 2005