Nmaju & Ors v Entry Clearance Officer [2000] EWCA Civ 505 (31 July, 2000)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand
London WC2
Monday 31st July, 2000

B e f o r e :

LORD JUSTICE ALDOUS
LORD JUSTICE SCHIEMANN
LORD JUSTICE THORPE

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(1) NGOZ NWANY-SUNDAY NMAJU
(2) ONYIKE ONYAKACHI NMAJU
(3) NKECH NMAJUAppellants
– v –
ENTRY CLEARANCE OFFICERRespondent

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    1. LORD JUSTICE ALDOUS: Lord Justice Schiemann will give the first judgment.
    2. LORD JUSTICE SCHIEMANN: This appeal from the Immigration Appeal Tribunal raises matters of general significance in relation to the requirements imposed by the Immigration Rules for indefinite leave to enter the United Kingdom as the child of a parent settled in the United Kingdom. We are concerned with Rule 297(i)(e) of HC 395 and in particular with the requirement that the parent settled here must have had “sole responsibility for the child’s upbringing”. Our decision will affect not merely cases within that rule but may well affect rules 298, 301, 310, 311 and 314 which contain a similar phrase. I say no more about them but turn straightaway to the rule with whose application we are concerned. This provides, so far as relevant, that:

“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 in the United Kingdom 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:

(a) both parent are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has the sole responsibility for the child’s upbringing; or

(f) one parent or 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 the exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

(ii) in under the age of 18

(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit

(iv) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the parent … own(s) or occup(ies) exclusively.”

    1. While nothing turns on (ii) to (iv) it is worth pointing out that we are construing (i)(e) in the context of a child who is under 18 and who is not leading an independent life and who has not formed an independent family unit. It seems clear that, in the case of a child who can fulfil conditions (ii) to (iv) and who either has two parents who are (or are about to be) settled in this country or has one parent who is (or is about to be) settled in this country and whose other parent is dead, the policy is that children should be allowed to remain with or join their parents. That is exactly what one would expect.
    2. The mother in the present case claimed that the father had died in 1989. However the immigration authorities did not believe her. It has not been submitted at any stage of the appellate process that the father is dead and that therefore the case fell within subparagraph (d) which would have entitled the child to admission.
    3. Subparagraph (e) with which we are concerned addresses the situation where both parents are living – one here and one abroad. Often in those circumstances the parents will share responsibility for the child’s upbringing. If that be the case, and the circumstances do not fall within (f), the child will be refused indefinite leave to enter to join the parent here. That is the clear policy behind the rules. Save in circumstances falling within (f) the child will be refused leave unless the parent settled here can show that he or she has the sole responsibility for the child’s upbringing.
    4. How then should the question of who has responsibility for a child’s upbringing be approached? There are two points of principle which can arise. One relates to what quality of control is involved in having sole responsibility for the upbringing of the child. The second relates to the period of time during which this control has to be exercised.
    5. The quality of control
    6. We have some guidance on the former from this court. Dillon LJ said in Suzara Ramos v Immigration Appeal Tribunal [1989] Imm AR 148, in a judgment with which Taylor LJ and Sir John Megaw agreed, at page 151:

“… 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, or putting the child to bed, or seeing what it has for breakfast, or that it cleans its teeth, or has enough clothing, and so forth. … 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 …”

    1. 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.
    2. There are cases, of which this is admittedly one, where the parent who lives abroad shows no interest in the child whatever. In such circumstances some arrangements will usually have been made by someone for the care of the child. The carer may be an adoptive parent, a guardian, a national or local authority, a charitable institution, or a friend or relative. In those circumstances it is necessary to see whether the parent settled here has sole responsibility for the child’s upbringing. In some of those cases it may be quite clear that the parent settled here has no responsibility whatever for the upbringing of the child. For these cases the policy behind the rules is that, absent the special circumstances set out in subparagraph (f), the child is not to be admitted.
    3. At the other extreme it may be perfectly clear that the persons who are catering for the child’s daily needs have no responsibility whatever for the child’s upbringing. In between are cases where difficult judgments have to be made as to whether the involvement of the parent settled here is of such a nature that it can be described as having sole responsibility for the child’s upbringing.
    4. In the present case, the finding of the adjudicator and of the Immigration Appeal Tribunal was that the mother of the children did not have sole responsibility for their upbringing between 1988 when she came to England and when the children went to live with her father and September 1996 when her father said he was too old to look after them any more and went back to his village leaving them in the day-to-day care of a maid paid for by the mother. Although Mr Kadri QC has sought to attack this finding he has not succeeded in persuading me that it is open to attack. I do not find it necessary to set out my reasoning since, as will appear, I consider that the appeal should succeed on a different ground.
    5. The period of time during which sole control has to be exercised.
    6. The Immigration Appeal Tribunal found that the three children with which we are concerned fulfilled conditions (ii) to (iv); that they had a mother who was present and settled in the United Kingdom and that she had had sole responsibility for their upbringing for a period between September 1996 and 21st November 1996 when the applications for entry clearance made on behalf of the children were refused. Yet the Tribunal held that the conditions set out in paragraph 297(i)(e) was not fulfilled. They did so because they found that:

“the time during which she had sole responsibility, a maximum of two and a half months, was insufficient for her to fall into the group entitled to the benefit of paragraph 297(i)(e).”

    1. The Immigration Appeal Tribunal, in the words which I have cited, imposed a time condition and then said it was not fulfilled. Now that paragraph of the rule makes no mention of any time condition which has to be fulfilled. It does not mention any minimum period nor does it indicate whether there is any terminal date of any such period.
    2. The present case does not oblige to us form a view on whether the settled parent must have had the sole responsibility for the upbringing of the child at the time of the decision to refuse entry clearance. That is because in the present case the period of sole responsibility undoubtedly included the time immediately preceding the refusal of entry clearance.
    3. So I can turn straightaway to consider whether the Tribunal was entitled to conclude that the children with a parent settled in the United Kingdom who had had sole responsibility for the upbringing of the children for two months prior to the decision to refuse entry clearance did not fall within subparagraph (e).
    4. The Tribunal imposed the time condition accepting a submission made on behalf of the Home Office, based on two first instance cases – the first of which was R v Immigration Appeal Tribunal ex parte Fojor Uddin and Nur Uddin [1986] Imm AR 203, which was followed in R v Immigration Appeal Tribunal ex parte Sajid Mahmood [1988] Imm AR 121.

19. Uddin’s case concerned an application for judicial review of a decision of the Immigration Appeal Tribunal which had refused leave to appeal to two children from a decision of an adjudicator. Their father came to England in 1963 leaving behind in Pakistan the two children and their mother. The adjudicator found that responsibility for the children was joint between 1971 and 1973. Father and mother divorced in 1973 and the mother thereafter had nothing to do with them. The adjudicator found that by reason of the period of joint responsibility during the early years of the children’s lives it could not be said in 1979 (when the children’s application for entry clearance was refused) that the father had had sole responsibility for the children’s upbringing. Webster J found this approach was wrong. He referred to the predecessor of the present rule and said in relation to the words “has had sole responsibility for the child’s upbringing”:

“Do they mean that the person who makes the decision in question has to ask himself whether the – in this case father – has had the sole responsibility for the upbringing of the child or children continuously [sc. from birth] until the application is made? It would seem not because if that were the right construction then many individual parents would not be able to say that they had sole responsibility for the child’s upbringing during its life.

In my view the words simply raise the question whether the sponsor has had the sole responsibility for the upbringing of the child for a period of time not being an insubstantial period.”

    1. In Mahmood’s case this approach was approved by Roch J. There the father lived in the United Kingdom. The mother in Pakistan. The mother in 1970 gave birth to the child in Pakistan. Before the birth of the child the father returned to the United Kingdom. He divorced the mother in 1975. The Immigration Appeal Tribunal found that the father had had joint responsibility with the mother for the child until 1981 and thereafter had had joint responsibility with the child’s paternal grandmother and the child’s uncle. So the Immigration Authority won before the Immigration Appeal Tribunal. An appeal was made on behalf of the child and it was submitted before Roch J that the conclusion as to joint responsibility after 1981 was not sustainable but that challenge failed. The judge however rejected what appears to have been a submission made on behalf of the Immigration Authority (by way of additional grounds for supporting the Immigration Appeal Tribunal’s decision) to the effect that the father had to show that he had had sole responsibility for the upbringing since the date of the birth of the child. He held that:

“… it is not necessary for the applicant to show that the parent sponsor has had the sole responsibility for the upbringing of the child during the entirety of the child’s life.”

    1. and endorsed the approach of Webster J in Uddin’s case.
    2. It will be seen that those judges were not concerned with a period as short as the one in the present case. On any view on those two cases the period during which the parent settled here had had sole responsibility for the upbringing of the children was one of some years. I respectfully regard each of those cases as rightly decided but I would deprecate any attempt to treat the phrase “a not insubstantial period” which occurs in the Uddin judgment as though it were incorporated into the language of the rules.
    3. Time cannot on its own be a conclusive factor. Consider a child of separated parents who agreed on separating that the mother abroad should have sole responsibility for the child’s upbringing during her life but that if the mother became incapacitated or died then father in the United Kingdom would take over sole responsibility. Assume mother as a result of an accident becomes mentally incapacitated and there is no local carer interested in assuming responsibility beyond telephoning father to inform him of the situation. Assume father immediately takes sole responsibility and thereafter takes steps to apply for entry clearance for the child and pays for its fare. It seems to me that the case clearly falls within the subparagraph even if the entry clearance officer is faced with taking a decision within days of the advent of the mother’s incapacity.
    4. I accept that time may often be a relevant factor when deciding whether the facts as found lead to the conclusion that the United Kingdom parent was exercising sole responsibility for the child’s upbringing. Consider the child of separated parents whose mother abroad has been looking after him for some years with no interest shown by the father. Mother suddenly become incapacitated when the child is nearly eighteen and father, on hearing this over the telephone, sends enough money to a local carer to pay for care for a few months and an application is made by or on behalf of the child for entry clearance. Certainly in the absence of any prospect of further education, it might well be found that the father had never assumed sole responsibility for the upbringing of the child but was merely reacting mercifully in an emergency. If on the other hand the mother had become incapacitated when the child was twelve and the father made arrangements at his sole expense for the next six years then it would be easier to come to the conclusion that he had assumed sole responsibility for the upbringing of the child.
    5. It is a mistake in my judgment to try and address the question of time on its own, asking questions such as were addressed to us in submissions “can two months be substantial?” The proper course is to address the question posed by the rules, namely, has the parent settled in the United Kingdom had sole responsibility for the upbringing of the child? One must bear in mind that the concept of upbringing can be wider than the mere provision of board and lodging and also that situations can arise where no one can be regarded as having had any responsibility for the upbringing of the child. It is an unfortunate commonplace that children do exist who have no parent who has accepted responsibility for their upbringing.
    6. In the present case I consider that the Tribunal fell into error in treating the length of time for which the mother had accepted sole responsibility as being a disqualifying factor. The Tribunal found that the mother had had sole responsibility for the upbringing of the child. Having concluded that then, in my judgment, they were not at liberty under the rules to find that the child did not qualify for entry merely because that sole responsibility had not been assumed for a period in excess of much over two months. In those circumstances I would allow the appeal. Subject to further submissions by counsel as to the precise form of remedy, I would be minded to declare that the three children appellants qualify for admission for settlement to the United Kingdom.
    7. I cannot part from this case without expressing my dismay that, in a case involving children, the appellate processes have occupied five years. Application was made in December 1995. The refusal was in November 1996. The adjudicator dismissed the appeals in February 1998. The Immigration Appeal Tribunal dismissed the further appeal in June 1999, and this court is dealing with the matter in July 2000 having granted permission to appeal in May of this year.
    8. LORD JUSTICE THORPE: I agree.
    9. LORD JUSTICE ALDOUS: I also agree.

ORDER: Appeal allowed with costs; legal aid assessment of the Applicant’s costs; declaration made that the three appellants qualify for admission for settlement to the United Kingdom; permission to appeal to the House of Lords granted, subject to an undertaking being provided that the outcome of the appeal will not affect the conclusion of this court in respect of these particular applicants.
(Order not part of approved judgment) 

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