Gherson success in sole responsibility appeal

One of Gherson’s clients, a 10 year old girl living in Moscow and hoping to accompany her mother to the United Kingdom, has won her appeal against an Entry Clearance Officer’s (“ECO”) decision to refuse to allow her to come to the UK.  The ECO had refused the client’s application for entry clearance because he or she had not been satisfied that her mother had “sole responsibility” for the client’s upbringing.  The ECO has not sought to challenge the Asylum and Immigration Tribunal’s decision allowing the client’s appeal.  

As is not unusual in cases of this kind, the client’s family history is a little complicated.  Both of her parents have children from previous relationships.  Her father has a son and a daughter, and her mother has a son. By the time of the ECO’s decision these children were grown up.

The client’s parents separated shortly after her birth in 1997, and eventually divorced in 2004.  After their separation the client lived with her mother, who developed a relationship with her father’s adult daughter from his previous relationship. So the family unit comprises the client, her mother and the client’s half sister.  Her mother and her half sister are now civil partners.

The contact between the client and her father has dwindled over the years between her parents’ separation and her application to join her mother in the UK.  He is disabled and has gifted his disability benefit – which amounts to about £75 per month – to the client.  

The client’s half sister works in London where she has leave to remain under the Highly Skilled Migrant Programme.  She provides her civil partner, the client’s mother, with about £600 per month for the client’s living expenses.  The client’s mother has been granted leave to enter the UK as the civil partner of a Highly Skilled Migrant.

The Immigration Judge who heard the client’s appeal considered the Asylum and Immigration Tribunal’s determination in TD (Yemen) [2006] UKAIT [hyperlink].  She was satisfied that the client’s father had effectively abdicated all responsibility for the client, and that the ECO’s decision appeared to be based upon the “significance of a future possible exercise of responsibility by the inactive parent”.  

The ECO had reasoned that the client’s father did retain some responsibility for the client because of her mother’s having answered  “yes of course” when the ECO had asked her whether the client’s father would be able to look after his daughter “if needed”.  In a representation made to the ECO following the interview the client’s mother had explained that she had thought that she was being asked if her daughter’s father could look after her if there was no one else available, in a catastrophe such as her and her civil partner’s death, and when the only alternative was her daughter’s being taken into care by the state.
In her determination allowing the appeal the Immigration Judge stated that she was troubled by the fact that in maintaining the ECO’s decision in her explanatory statement the entry clearance manager had apparently ignored this representation, stating that the client’s mother had emphatically responded that her ex husband would be able to look after the client if needed.  

The Immigration Judge also said that since the ECO had clearly formed the view that the client’s father did retain some responsibility – it followed that he or she should then have considered the policy contained in the Immigration Directorate Instructions (the “IDIs”) which state:

“The phrase "sole responsibility" is intended to reflect a situation where parental
responsibility of a child, to all intents and purposes, rests chiefly with one parent.”

Counsel for Gherson’s client had pointed out that this instruction indicated a less strict test than the “abdication of all responsibility” criterion which had been found to be applicable by the Tribunal in TD (Yemen).  

The Immigration Judge characterised the approach adopted by the ECO as “all or nothing” – which conflicted with the policy contained in the IDIs.  By this approach the ECO had mistakenly thought that since the client’s father retained some responsibility the mother could not claim to have exercised sole responsibility.  Instead the policy required the ECO to decide whether responsibility rested “chiefly” with the client’s mother.  

The appeal was allowed because in the Immigration Judge’s view the client satisfied all of the requirements of the applicable immigration rule and due to the ECO’s failure properly to consider the policy contained in the IDIs.  

The role of the UK Border Agency’s published policy in the agency’s decision making is becoming increasingly important.  Many of the key new immigration rules by which the points based system is progressively being implemented refer to guidance contained in document similar to the IDIs.  Winning or losing appeals before the Asylum and Immigration Tribunal frequently depends upon the scrutiny of these documents by lawyers representing their clients before the Asylum and Immigration Tribunal.  In this case Counsel instructed by Gherson was able to show how the decision appealed had deviated from published policy.