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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> OA077112014 & Ors. [2017] UKAITUR OA077112014 (23 May 2017)
URL: http://www.bailii.org/uk/cases/UKAITUR/2017/OA077112014.html
Cite as: [2017] UKAITUR OA077112014, [2017] UKAITUR OA77112014

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: OA/07711/2014

OA/07728/2014

OA/07729/2014

OA/07730/2014

 

 

THE IMMIGRATION ACTS



Heard at Birmingham

Decision & Reasons Promulgated

On 28 April 2017

On 23 May 2017

 

 

 

 

Before

 

UPPER TRIBUNAL JUDGE DAWSON

 

 

Between

 

miss prudence beatrice kusindika - 1 st appellant

miss grace greacia kusindika - 2 nd appellant

master gedeon harvey kusindika - 3 rd appellant

master Henri Makileki - 4 th appellant

 

(ANONYMITY DIRECTION not made)

 

Appellants

and

 

ENTRY CLEARANCE OFFICER - NAIROBI

 

Respondent

 

 

Representation :

 

For the Appellant: Mr A Burrett, instructed by Nandy & Co

For the Respondent: Mrs Aboni, Home Office Presenting Officer

DECISION AND REASONS

 

INTRODUCTION

1.              The above appellants who were born January 1997, August 1998, May 2000 and October 2003 are nationals of the Democratic Republic of Congo. They have been granted permission to appeal the determination of the First-tier Tribunal who dismissed their appeals against the refusal of entry clearance to join Naphta Dingangu in the United Kingdom (referred to as the sponsor). She is also a national of the DRC where she was born in December 1984.

2.              The sponsor came to the United Kingdom on 22 October 2011 and was granted asylum by the Secretary of State on 28 August 2013. She was pregnant when she reached the UK and her daughter, Bright, was born here on 3 May 2012. Another daughter, Brielle (who had succeeded on appeal to the FtT against refusal of her entry clearance application having applied at the same time as the appellants) arrived in the UK on 23 June 2015. The family now live in Tottenham London together with the sponsor's current partner. At time the applications for entry clearance were refused, the sponsor was living with alone with Bright in Smethwick Birmingham.

3.              The first three appellants applied for entry on the basis that they were the sponsor's siblings and had formed part of her household before her flight to the United Kingdom. The entry clearance officer refused their applications under paragraph 319X of the Rules on the basis that they were not related to the sponsor as claimed (319X(i)). Furthermore, he contended that these appellants had not provided evidence of their own circumstances in the DRC, including a lack of evidence to demonstrate they would be unable to continue with their current living arrangements. He was not satisfied that there were serious and compelling family or other considerations which made their exclusion undesirable (paragraph 319X(ii)). The entry clearance officer was not satisfied as to the sponsor's ability to accommodate the appellants. No evidence had been provided as to the size of the property which she occupied in Birmingham nor was there a written authority from the landlord. The entry clearance officer considered there was no evidence of the sponsor's income or financial circumstances and accordingly was not satisfied that these appellants would be adequately maintained without recourse to public funds (paragraph 319(vi), (vii)).

4.              The fourth appellant (and Brielle) applied on the basis that the sponsor is their mother. Their applications were refused under paragraph 352D(i) of the Immigration Rules as the entry clearance officer did not accept that they were not related as claimed.

5.              Following a hearing on 2 February 2015, First-tier Tribunal Judge Dhaliwal allowed the appeal by Brielle on the basis that she was the daughter of the sponsor. She dismissed the appeals by the remaining appellants. It was accepted by the appellants' representatives that the fourth appellant was not the child of the sponsor (as admitted in the sponsor's first witness statement) and, instead, it was claimed that he was her brother. The sponsor gave evidence at the hearing. The judge had before her a volume of material which included DNA test reports. She was however not persuaded that the four appellants were the siblings of the sponsor and furthermore was not persuaded that she could adequately maintain and accommodate them without recourse to public funds. She also considered the cases failed on article 8 grounds as there was "no good arguable case on which to consider this [sic]".

6.              By a decision dated 16 March 2017, the President of the Upper Tribunal sitting with Deputy Upper Tribunal Judge Mahmood set aside the decision of the First-tier Tribunal and gave directions for the re-making. It is on that basis that the appeals have come before me.

7.              It is the appellants' case that their father passed away in February 2002 due to malaria and ill health. Following a traditional marriage in July 2002, the sponsor lived with her husband in his house where Brielle was born. The appellants' mother died in September 2005 and thereafter the appellants lived with the sponsor and her husband.

8.              The sponsor explains in her first witness statement dated 16 January 2015 that she treated the fourth appellant as her son; she did not want him to think that his mother had passed away "when he was very young". Since she had left, a friend of hers called Amathou had been looking after her siblings and Brielle although the sponsor had provided them with financial support. That friend has informed her that she is unable to care for them as she has commitments of her own.

9.              In a more recent statement dated 12 April 2017, the sponsor explains that that her friend is continually pestering her to take the children as she is unable to cope and has family pressures. She is unable to look after the sponsor's siblings in the way that she looks after her own children. Prudence is suffering from a mental stress condition and had not been looked after properly. A letter dated 4 April 2017 from Amathou has been provided in which she refers to her house having only two rooms and that she has three children of her own; she had only one child when she took the appellants in. The sponsor is asked to find a solution for the appellants otherwise they would be "on the street". The sponsor also explains in her second statement that she is currently working through an agency and looking for permanent employment.

10.          The grounds of challenge to the FtT were in terms that DNA evidence would be provided shortly although it is argued that evidence of the relationships had been submitted and that article 8 had not been considered as " it should have been".

11.          The rule relevant to applications by children related to someone recognised as a refugee is paragraph 319X is in these terms:

"319X. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the child of a relative with limited leave to remain as a refugee or beneficiary of humanitarian protection in the United Kingdom are that:

(i) the applicant is seeking leave to enter or remain to join a relative with limited leave to enter or remain as a refugee or person with humanitarian protection; and:

(ii) the relative has limited leave in the United Kingdom as a refugee or beneficiary of humanitarian protection 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; and

(iii) the relative is not the parent of the child who is seeking leave to enter or remain in the United Kingdom; and

(iv) the applicant is under the age of 18; and

(v) the applicant is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(vi) the applicant can, and will, be accommodated adequately by the relative the child is seeking to join without recourse to public funds in accommodation which the relative in the United Kingdom owns or occupies exclusively; and

(vii) the applicant can, and will, be maintained adequately by the relative in the United Kingdom without recourse to public funds; and

(viii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity or, if seeking leave to remain, holds valid leave to remain in this or another capacity."

THE ISSUES

12.          During a review of matters at the beginning of the hearing, in the light of the DNA reports, Mrs Aboni accepted that the first, second and third appellants are the siblings of the sponsor. She also accepted that although the fourth is related to her, he is not her brother. Despite her reservations about the precise blood tie of Henri, Mrs Aboni nevertheless accepted that that the sponsor was the de facto mother of all four appellants and that they constituted a family unit before she came to the UK.

13.          Mr Burrett accepted that having regard to the impact of s 85A of the 2002 Act, based on the circumstances at the time of the ECO's decision, the maintenance requirements of the rule could not be met. The sponsor was in receipt of housing benefit and income support. She was already living here with Bright who was born after arrival and would be joined by five children. There was no evidence that the sponsor received any other income and so the four remaining appellants' financial needs would inevitably result in recourse to public funds.

14.          A tenancy agreement was provided to the entry clearance officer for a property in Smethwick but no report had been provided indicating the extent of the accommodation. Even allowing for the fact that three of the four appellants are female, due to their ages, without evidence of the size and number of rooms available, Mr Burrett acknowledged the difficulties this aspect faced. He relied therefore on grounds under article 8 reflecting the basis of the initial challenge to the FtT. This was also in line with Mrs Aboni's report that an inability to meet the rule was acknowledged at an earlier hearing in 2016.

15.          I heard evidence from the sponsor whose initial nervousness subsided after she was given a break. Mr Burrett had no questions apart from inviting her to adopt her two statements as true. Under cross examination, the sponsor explained the following matters:

(a)           Her siblings first went to live with Amathou in Kisanto after she had told one of the guards in her prison to take them to her. By the time the appellants made their applications for entry clearance Amathou's household, including the appellants, had moved to Kinshasa. They were not attending school when those applications were made, the sponsor explaining that they had never been schooled. This was because of the cost which she could not afford.

(b)           None of the appellants had any health issues in 2014.

(c)            At the time of application, it was proposed the appellants would live with her in Smethwick. Other than Bright, there was no one else living with her then. As to how she was going to maintain the appellants, the sponsor explained that when she first came to England, the Job centre had given her the opportunity to learn English. As to how she would afford and feed them, she explained how she had been "dividing" her money and forwarding funds.

16.          Mr Burrett had no questions arising out of these responses.

17.          My questions for clarification related to the statements that the appellants had relied on in the First-tier Tribunal and the circumstances of Amathou. As to the former, the sponsor explained that the appellants had done statements which had been sent to her for translation which she had paid for. The statements were then sent back to the appellants (with the implication this was for signing). Her older siblings could read and write but they did get some help from Amathou. When the sponsor was living in the DRC, the appellants were attending school. Amathou was 32. She is married and she gave birth to her third child in 2015.

18.          Finally, I observed to Mr Burrett that there was no evidence before me regarding any steps that had been taken to check up on the children in the DRC. He had no questions on this aspect.

19.          By way of submissions, Mrs Aboni argued that there were no exceptional or compelling circumstances that warranted the grant of leave outside the Rules. The appellants had a legal guardian as indicated in their applications. It was now claimed that the friend could not longer look after them but there was no evidence of this at the time of refusal apart a statement that post-dated the decision. There was no evidence of any medical issues at that time. The parties had could maintain contact and she did not consider that any interference was disproportionate, including consideration under s.55. She relied on the Tribunal decisions in T (s.55 BCIA 2009 - entry clearance) Jamaica [2011] UKUT 483(IAC) and Mundeba (s.55 and para 297(i)(f) [2013] UKUT 88 (IAC), the latter in respect of the meaning of "serious and compelling family or other considerations". There were stable arrangements in place for the appellants and there was nothing to alert a concern. She pointed out that the letter from the solicitors that accompanied the applications did not refer to any concerns. She accepted that it was in the best interests of the appellants to be with their sister. Additionally, Mrs Aboni argued that the appellants had failed to demonstrate that there would be adequate maintenance and accommodation which the public interests required.

20.          By way of response Mr Burrett emphasised the relevance of the sponsor's refugee status which had resulted in the separation. The entry clearance officer had failed to recognise this. The test should not so much be whether there was a stable situation for the appellants but instead an examination why the children should not be reunited with their refugee de facto parent. The children should not be left without their carer. Mr Burrett submitted that it was the reason behind the separation which created the exceptional circumstances under article 8.

CONCLUSIONS

21.          The only evidential dispute of any substance is limited to the status of the fourth appellant. The explanation for the deception when the application was made for entry clearance that the sponsor had not wanted him to discover he had lost his mother is understandable but not one that required a misrepresentation in the application itself. It was misleading of the sponsor to indicate in cross-examination that the appellants had never been to school only to explain in response to my questions that the older ones could read and write and they had been attending school when the sponsor was in the DRC. This indicates to me that she has not been entirely truthful. My conclusion is that on balance the fourth appellant is more likely to be the sponsor's nephew being the second of the two possibilities identified in the DNA report. This finding has only limited relevance in the light of Mrs Aboni's acceptance of the role of the sponsor as de facto mother to all the appellants when she left the DRC.

22.          Consideration of article 8 grounds requires the familiar Razgar steps to be followed. The appellants rely on family arrangements that were established on the death of the sponsor's mother in 2005 until disrupted by the sponsor having to leave the DRC. Given Mrs Aboni's acceptance that the sponsor was de facto mother, I am satisfied that there was family life between the sponsor and the appellants at the time the sponsor left. After her departure, there is no dispute that the day to day care for the children was taken over by her friend and the family group have remained united with her. I am satisfied that the sponsor has continued to maintain a role in the appellants' lives through social media. Their family life with the sponsor is sufficient to engage article 8. The impact of the separation on the sponsor and Brielle are also relevant factors. Thus article 8 is engaged.

23.          There is no dispute that the decision by the entry clearance officer was in accordance with the law in terms of process based on clearly defined rules reflecting the Secretary of State's policy on immigration control that set out the basis on which applications such as those made by the appellants. Those rules reflect a legitimate aim. This leaves the issue of proportionality which is at the heart of these appeals. A balancing exercise is required between the public interest and the individual rights in play taking account of the acknowledged best interests and the acceptance of the pre -flight family life.

24.          Children of a refugee are treated differently under the Rules from minor relatives. Paragraph 352D sets out the requirements to be met by a person seeking leave to enter in order to join a parent who is currently a refugee. Such a person needs to demonstrate that he or she:

(i)             Is the child of a parent who is currently a refugee granted status as such under the Immigration Rules in the United Kingdom; and

(ii)           Is under the age of 18; and

(iii)         Is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)         Was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum;

... "

25.          Whether this provision included de facto adopted children was considered by the Court of Appeal in AA (Somalia) v ECO Addis Ababa [2012] EWCA Civ 563. The argument before the court was that any child who had, pre-flight, become a child of the family should be regarded as an adopted child of the parent who had been granted asylum. Paragraph 6 of the Immigration Rules was not attempting to be exhaustive of the notion of what the child of "a parent" may be. Paragraph 352D is to be read by reference to a "broader concept of family" to achieve the objectives of promotion of family reunion and the best interests of the child and to reflect the modern reality. It was argued that a "parent" can cover a wide range of persons.

26.          Davis LJ was not persuaded. At [29] ff he made these observations:

"29. I am in no real doubt that the purpose of interpretation to paragraph 352D advanced (with care and elaboration) by Mr Gill cannot be sustained. It is my view contrary to the plain and unambiguous language of the Immigration Rules.

30. I can see no proper basis for saying that there can be some notion of adoption applicable to entry clearance applications under paragraph 352D which can operate separately from and outside the meaning otherwise given to it for the other purposes of the Rules. Indeed, adoption, whether de jure or de facto, is a very serious and sensitive matter. It cannot readily be expected, for some purposes but not others, to be left, in the modern immigration and asylum context, in an undefined state.

...

33. In all these circumstances I can see no basis for the assertion that the interpretive provisions of paragraph 6 (and thereby the provisions of paragraph 309A) do not apply to paragraph 352D. In my judgement, they clearly do. At paragraph 6, with regard to "a parent" it is the word "includes" and not "means" is, in my view of real significance in this context. The interpretation is plainly setting out exhaustively who is to be regarded for the purposes of the Rules as an "adoptive parent": and there is nothing either in that paragraph or in paragraph 352D itself to indicate a contrary intention for the purpose of entry clearance applications under paragraph 352D.

...

41. Nor, in my view, does this interpretation of the Immigration Rules lead to any great lacuna. It must not be forgotten that Article 8 of the Convention is always available to be relied on in an appropriate case - indeed AA in the present case succeeded on precisely that ground. Further, it may be, for example that applicants in corresponding circumstances may in some cases be able to claim eligibility for family reunion on compelling compassionate grounds."

27.          There is a marked difference between the provisions of paragraph 352D and the requirements of paragraph 319X. The former does not contain the hurdles of serious and compelling family or other considerations or any maintenance and accommodation requirements. Paragraph 352D gives effect to the United Kingdom's obligations under the Refugee Convention. The Qualification Directive (Council Directive 2004/83/EC) provides in Article 3 that:

" 1. Member States shall ensure that family unity can be maintained.

2. Member States shall ensure that family members of the beneficiary of refugee or subsidiary protection status, who do not individually qualify for such status are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with national procedures and as far as it is compatible with the personal legal status of the family members.

...

5. Member States may decide that this Article also applies to other close relatives who live together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of refugee or subsidiary protection status at that time."

28.          Family members as defined in Article 2 of the Qualification Directive as including "the minor children ... of the beneficiary of refugee ... status, on condition that they are unmarried, independent and regardless of whether they were born in or out of wedlock or adopted as defined under national law". Accordingly, a de facto mother of minor children comes under the category of close relatives for whom there is no mandatory provision in the Qualification Directive for the issue of residence permits under Article 24.

29.          The Immigration Rules are not law but a statement of the Secretary of State's administrative practice. They give effect to policies of the Secretary of State - see Lord Reed at [17] in his judgment in Hesham Ali v SSHD [2016] UKSC 60. Thus the Rules are an indication of where the public interest lies.

30.          As observed by Richards LJ in SSHD v SS (Congo) [2015] EWCA Civ 387 at [17] ...

"... where the Secretary of State has sought to fashion the content of the Rules so as to strike what she regards as the appropriate balance under Article 8 and any gap between the Rules and what Article 8 requires is comparatively narrow, the Secretary of State's formulation of the Rules may allow the court to be more confident that she has brought a focussed assessment of considerations of the public interest to bear on the matter. That will in turn allow the court more readily to give weight to that assessment when making its own decision pursuant to Article 8."

31.          Paragraph 319X has not received the same judicial scrutiny that the family provisions under Appendix FM. But it seems to me that the principles set out in MM (Lebanon) v SSHD [2107] UKSC 10 as to the approach to be taken are equally valid to cases such as those before me where appellants are unable to meet the requirements of the Rules. As Lady Hale and Lord Carnwath observed at [44]:

"The issue is always whether the authorities have stuck a fair balance between the individual and public interests and the factors identified by the Strasbourg Court have to be taken into account, among them the "significant weight" which has to be given to the interests of children."

 

32.            Neither party provided copies of any relevant policy however I was able to locate during a short break, Family reunion: for refugees and those with humanitarian protection Version 2 which was updated in July 2016. Page 19 considers de facto adopted children as follows

 

"A de facto adoption is one where a child has been incorporated into another family

than the one into which they were born, and has been cared for in that family. Unlike

formal adoptions which can be established on the basis of documentary evidence,

de facto adoptions are likely to require an assessment of the overall picture of the

circumstances surrounding the 'adoption', often with little or no documentary

evidence. The onus to establish a de facto adoption is on the applicant.

There is no provision in the Immigration Rules to consider a sponsor who has

requested family reunion for a child who is the subject of a de facto adoption.

Applications involving de-facto adoptions must be refused under the rules and

caseworkers must then go on to consider the family exceptional circumstances

guidance or whether there are any compassionate factors which may warrant a grant

of leave outside the Immigration Rules."

33.          The hyper link " the family exceptional circumstances guidance" takes the reader to Immigration Directorate Instructions, Chapter 8 CHILDREN. Part 3 of the Instructions deals with leave to enter or remain as the child of a relative with limited leave to enter or remain in the UK as a refugee or beneficiary of humanitarian protection and refers to paragraph 319X of the Rules. In reality, it does no more than repeat the rule and adds nothing of substance.

34.          The Qualification Directive permits the Secretary of State to treat de facto adopted children differently under the Rules however I am satisfied that paragraph 319X does contain the focussed assessment of the public interest as contemplated in SS(Congo). It is relevant that the maintenance requirements in 319X are modest in comparison with the more demanding financial threshold in conventional family situations. The question is whether on the facts of these appeals the requirements of the rule strike a fair balance in the competing interests. In other words, are there compelling circumstances not catered for in the rule that require a different result? The fact that the separation was triggered by the need for the sponsor to flee is an important factor but paragraph 319X expressly provides for such situations. The fact of the sponsor's flight for protection cannot of itself dictate the outcome of the article 8 exercise since that would disable the public interest in treating children as opposed to minor relatives of a refugee differently. I am unable to accept Mr Burrett's key submission on this aspect.

35.          The best interests of the children are unquestionably a paramount consideration and as acknowledged by Mrs Aboni, it was in the best interests of the appellants to remain together with their sister. Those interests do not dictate the outcome of the proportionality exercise but require significant weight to be given to them. The calibration of that weight is informed by the consequences of the separation and what would follow if the children were to come to the UK. Although the children were no longer able to benefit from the parental role adopted by the sponsor after her mother died in 2005, she instigated alternative arrangements with someone she knew and no doubt trusted with their care. There was no evidence at the time of the decision that Amathou was unwilling to continue with this role. There is no evidence that the children's welfare has been jeopardised because of the new arrangements; they had no health issues at the time of decision and there is no evidence that they were not adequately accommodated and cared for in the absence of the sponsor. The sponsor's role has de facto parent had been assumed at some point in 2005 and therefore over a period of six years. At the date of decision, Amathou had been caring for the children for some three years and it is likely that during that time a good measure of stability will have been established in their lives. By the date of decision, the eldest appellant will have been 17 and no doubt a source of emotional support for her younger siblings as she matured. The children have remained together as a family unit; had this been otherwise there may have been a cause for concern. Coming to the UK would be a considerable upheaval for the appellants and would be a profound change; they would be reunited with their sister but in a country where they do not speak the language and in uncertain accommodation with doubt over the ability of the sponsor to financially support them beyond a basic standard. There is no evidence that the arrangements in place in the DRC have resulted in a lower standard of living from the appellants' peers. The sponsor's evidence at the hearing was that the children are not being schooled. There was a lack of evidence on how the children spend their days and no evidence whether schooling is routinely available in the DRC or whether such schooling as there is, needs to be paid for. This incomplete picture does not contribute much to the proportionality exercise. Given the evident care with which the statements from the children were prepared and taking account of the participation of Amathou in that process, there was ample opportunity for any difficulties or concerns to be highlighted.

36.          There was no evidence of the arrangements that had been made for the appellants' care in the UK apart from joining the sponsor. The wish of the sponsor to be joined by her minor siblings and her nephew is an entirely natural and understandable ambition. I accept that she and Brielle would be heartened by the presence of the appellants here. The desirability of the family being reunited is undoubtedly a compelling factor when taken with the best interests of the children. But there were no serious reasons at the time of decision why the reconstituted family arrangements in the DRC could not continue. There is nothing in the appellants' circumstances after giving full weigh to their best interests to render the consequent interference with their family life disproportionate to the permissible aims of the Secretary of State. There is nothing over and above the rule that requires a different outcome. Accordingly, the appeals on Article 8 grounds cannot succeed.

37.          The sponsor has produced more recent evidence indicating that the willingness of her friend to provide accommodation and care for the children has changed. It is open to those of the appellants who are still minors to re-apply in the light of there no longer being any question over their relationship to the sponsor.

 

 

NOTICE OF DECISION

 

The appeals are dismissed.

No anonymity direction is made.

 

 

Signed Date 22 May 2017

 

 

 

 

Upper Tribunal Judge Dawson

 


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