Upper Tribunal (Immigration and Asylum Chamber) OA/09937/2015 THE IMMIGRATION ACTS DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

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1 Upper Tribunal (Immigration and Asylum Chamber) OA/09937/2015 Appeal Number: THE IMMIGRATION ACTS Heard at Field House, London Decision & Reasons Promulgated On the 8 th August 2016 On the 12 th August 2016 Before: Between: DEPUTY UPPER TRIBUNAL JUDGE MCGINTY THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant in the Upper Tribunal And D.L. (Anonymity Direction made) Claimant Representation: For the Secretary of State: Mrs Ahmad (Senior Home Office Presenting Officer) For the Claimant: No attendance DECISION AND REASONS 1. This is the Secretary of State s appeal against the decision of First-tier Tribunal Judge Loughridge, promulgated on the 12 th February 2016, in which he allowed the Claimant s appeal against the Respondent s decision CROWN COPYRIGHT 2016

2 to refuse his application for entry clearance to the United Kingdom under the Immigration Rules. 2. The Secretary of State has sought to appeal against that decision for the reasons fully set out within the Grounds of Appeal. The grounds are a matter of record, and are therefore not repeated in full here, but in summary, it is argued that the Judge had failed to adequately explain what the circumstances were which meant that there were serious and compelling circumstances that made it desirable not to refuse the Claimant s application under paragraph 319H of the Immigration Rules. It is argued that following the case of Mundeba (Section 55 and para 297 (i) (f)) [2013] UKUT88, although relating to paragraph 297 (i)(f) rather than 319H, it is argued that the language in that paragraph is the same and that at paragraph 37 of the judgment in Mundeba, the Upper Tribunal stated that: Family considerations require an evaluation of the child s welfare including emotional needs. Other considerations come into play where there are other aspects of a child s life that are serious and compelling for example where an applicant is living in an acceptable social and economic environment. The focus needs to be on the circumstances of the child in light of his or her age, social background and developmental history and will involve enquiry as to whether:- (i) there is evidence of neglect or abuse; (ii) there are unmet needs that should be catered for; (iii) there are stable arrangements for the child s physical care. The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission. 3. It is argued that the Judge erred in failing to take that approach when considering the Claimant s circumstances and that the Judge had focussed 2

3 on the circumstances of the Claimant s mother and whether or not she would be able to complete her PhD. 4. Permission to appeal has been granted by First-tier Tribunal Judge Dineen on the 13 th July 2016, when he found that it was arguable that the Judge had erred by focussing on the circumstances of the Claimant s mother, in light of the passages referred to in Upper Tribunal decision in Mundeba. 5. It was on that basis that the case came before me in the Upper Tribunal. 6. Although no one attended the appeal on behalf of the Claimant, I am satisfied, having considered the file, that notice of the appeal hearing was properly sent to the Claimant by airmail on the 19 th July 2016 to his address is China. Although no legal representative have been seemingly instructed or other person asked to attend the appeal on behalf of the Claimant, I am satisfied that despite the non-attendance of anyone on behalf of the Claimant, it was in the interest of justice to proceed with the appeal before the Upper Tribunal. 7. Given that the Claimant himself is in China, I did not consider that the failure to attend meant that the appeal was being conceded by the Claimant, and I therefore heard from Mrs Ahmad in respect of her submissions on behalf of the Secretary of State, as to why she said that the Judge had made a material error of law in his determination. 8. Mrs Ahmad on behalf of the Secretary of State argued that she relied upon the Grounds of Appeal and argued that at [15] of the judgment, the Judge failed to appreciate the correct test, which she said was set out in Mundeba at paragraph 33 of that case. Mrs Ahmad argued that there had to be evidence of neglect or abuse or unmet needs. She argued that the wording of paragraph 297 (i) (f) was the same as the wording in paragraph 319H and argued that the head note of the case made it clear that the Judge also had to consider the child s welfare and best interests. She argued that the Judge had erred in focussing on whether or not the Claimant s mother could complete her PhD. My findings on error of law and materiality 3

4 9. Although it was argued on behalf of the Secretary of State that the wording of paragraph 319H (f) (iii) was the same as the wording in paragraph 297 (i) (f), although both paragraphs refer to them being serious and compelling family or other considerations, the wording of the two paragraphs is not identical. Paragraph 297 deals with the requirements for indefinite leave to enter the United Kingdom as a child or a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom, whereas paragraph 319H, is dealing with the requirements for entry clearance or leave to remain, as a family member of a relevant points based system migrant. The wording of 297 (i) (f) is that one parent or a 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 exclusion of the child undesirable and suitable arrangements have been made for the child s care. 10. Paragraph 319H relates to the requirements for entry clearance or leave to remain for a family member of a points based system migrant. Paragraph 319 (f) is a requirement that Both of the applicant s parents must either be lawfully present in the UK, or being granted entry clearance or leave to remain at the same time as the applicant or one parent must be lawfully present in the UK and the other is being granted entry clearance or leave to remain at the same time as the applicant, unless: (i) The Relevant Points Based System Migrant is the applicant s sole surviving parent; (ii) The Relevant Points Based System Migrant has and has had sole responsibility for the applicant s upbringing, or (iii) there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant s care. 11.The wording of the two paragraphs, although not identical, is sufficiently similar to mean that guidance can potentially be sought from the case law regarding paragraph However, in my judgement, the Upper Tribunal in the case of Mundeba that case was considering the application by an appellant, who was a 4

5 minor who lived in Kinshasa in the Democratic Republic of Condo, who had been living with the Girl Guides Association since 2009, and who had applied for leave to enter the country to join his adult sister, who had never actually cared for him in the DRC. At paragraph 37 of the judgement, the Upper Tribunal stated that Family considerations require an evaluation of the child s welfare including emotional needs. Other considerations come into play where there are other aspects of a child s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and would involve enquiry as to whether:- (i) there is evidence of neglect of abuse; (ii) there are unmet needs that should be catered for; (iii) there are stable arrangements for the child s physical care. The assessment involves consideration as to whether the combination of the circumstances are sufficiently serious and compelling to require admission. 13.The Tribunal went on at [38] to say that As a starting point the best interest of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important. 14.In my judgement, the submission made by Mrs Ahmad that there would have to be evidence of neglect or abuse, unmet needs that had to be catered for and stable arrangements for the child s physical care, before an application could be allowed under paragraph 319H (f) (iii) in terms of there being serious or compelling family or other considerations which would make it desirable not to refuse the application is entirely misconceived. The Upper Tribunal in Mundeba at [37] was describing what could amount to other considerations and had given an example of 5

6 where an applicant was living in unacceptable socially economic environment where there would need to be consideration of whether or not there was evidence of neglect or abuse or unmet needs that should be catered for. It was not saying that there had to be actual abuse or unmet needs before it could be said there were family or other considerations which would make it desirable not to refuse the application under paragraph 319H. Indeed, in terms of family considerations, all that is said within [37] of Mundeba is that this will require an evaluation of the child s welfare including emotional needs. However, that was clearly in respect of a child applicant who under paragraph 297 seeking indefinite leave to enter where the child would be moved from his home country on a permanent basis, rather than requirements for entry clearance or leave to remain as a relative of a points based migrant, who has limited period of leave in the United Kingdom, under paragraph 319H. 15.When considering whether there are family considerations which would make it desirable not to refuse the application, First-tier Tribunal Judge Loughridge was entitled to consider the situation of the Claimant s parents, and take into account as he quite properly did at [15], that the Claimant s father has frequent absences on business trips and that in respect of his mother, if she were not allowed to bring the Claimant with her to the United Kingdom, she would not be able to finish her PhD, in circumstances where his mother had already been granted a visa which allowed her to come to the UK and to complete her PhD. The Judge further did consider the effect on the Claimant himself in that the Judge found that he was still such a young age that it was entirely realistic for him to spend 2 years of his life being his mother s final year of study and the writing-up year, in the United Kingdom and then be able to readjust to life in his own country upon return. The Judge also properly considered that the nursery place was likely to be wholly or mainly funded by his parents so there would not be any significant burden on public funds. The Judge therefore had considered the effect on the Claimant and his emotional needs, and had clearly taken into account the fact that the Claimant was simply not in a position to be able to be cared for by his father because of his father s frequent absences on business trips. The Judge clearly was of the view that it was in the best interests of the child to remain in the care 6

7 of at least one of his parents, and that if he was not granted entry along with his mother, his mother would not be able to come to the UK and complete her PhD, when she already had a visa entitling her to do so. 16. In my judgement, this was a finding that was perfectly open to the Judge on the evidence before him, in considering whether or not there were serious and compelling family or other considerations which would make it desirable not to refuse the application, and suitable arrangements had been made in the UK for the Applicant s care.. The Judge has also adequately and sufficiently set out at paragraph 15 what those serious and compelling family considerations were which made it desirable not to refuse the application. Considering whether there are family considerations, an analysis of the effect on the child s family, has to be carried out. The findings made by the Judge were perfectly open to him on the evidence. In such circumstances the decision of First-tier Tribunal Judge Loughridge does not reveal any material error of law and is maintained. Notice of Decision The decision of First-tier Tribunal Judge Loughridge does not contain any material error of law and is maintained. The Claimant was granted anonymity in the First-tier Tribunal, and I consider it appropriate for the Claimant to still be granted anonymity in the Upper Tribunal. The Claimant is thereby granted anonymity throughout these proceedings, unless and until a Tribunal or Court directs otherwise. No report of these proceedings shall directly or indirectly identify the Claimant. This direction applies both to the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of Court proceedings. Signed 7

8 Deputy Judge of the Upper Tribunal McGinty 2016 Dated 9 th August 8