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Cite as: [2006] UKAIT 89, [2006] UKAIT 00089

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    FO & ors (children: settlement OM distinguished) Nigeria [2006] UKAIT 00089


    Date of hearing: 20th October 2006

    Date Determination notified: 04 December 2006


    Senior Immigration Judge Batiste

    Senior Immigration Judge McKee

    Miss R.J. Emblin, JP


    Secretary of State for the Home Department RESPONDENT
    For the appellants : Mr M.A. Makinde, Solicitor
    For the respondent : Mrs D. Cantrell, Senior Presenting Officer
    The Tribunal's remarks in OM about the Immigration Rules relating to the settlement of children (paragraphs 296 to 316 of HC 395) are obiter, and are not to be taken as an authoritative interpretation of those rules. Thus, there is no requirement that when a child applies for a settlement visa, there must be presented a form of lawful consent from the child's carer or, failing that, a court order. Nor is there a requirement that a child coming for settlement here must be registered with the Social Services Department of the Local Authority where it is to reside.
  1. This is the reconsideration of an appeal against the refusal on 30th September 2004 of entry clearance for the three appellants, who were at that time all below the age of 18, to join their father, Kabiru Olaloko ('the sponsor'), for settlement in the United Kingdom. The appeal papers were not released to the AIT by the Appeals Processing Centre in Croydon until February 2006, and the appeal was then listed for hearing at Croydon Magistrates' Court on 9th June. The appeal was allowed by an immigration judge, Mrs Foulkes-Jones, but an application for a review was made on behalf of the respondent, and reconsideration was ordered on 5th July 2006.
  2. The facts of the case can be recounted quite briefly, as they are no longer in dispute. The sponsor has been living in this country since 1992, and in 2003 he was naturalized as a British citizen. Before leaving Nigeria, he entrusted his three children, the appellants, to the care of his parents. The eldest child, Fatima, has a different mother from her two brothers, but neither of the mothers has played any part in the upbringing of the children since at least 1992, when the children were all very young. Fatima was the only one of the three to be interviewed at the High Commission, and she told the ECO that she had not seen her mother since she was very young, and could not remember her.
  3. The applications for entry clearance were refused because the ECO was not satisfied that the sponsor had had sole responsibility for the appellants, or in the alternative that there were serious and compelling family or other considerations rendering their exclusion undesirable. In addition, he was not satisfied that the appellants could be maintained adequately without recourse to public funds.
  4. All these objections were overcome at the hearing before Immigration Judge Foulkes-Jones, who was satisfied that, although the sponsor's parents had exercised day-to-day care of the appellants, the sponsor had been mainly (if not wholly) responsible for their upkeep, had taken the main decisions in their lives, had maintained regular contact through telephone calls and visits to Nigeria, and throughout had shown continuing concern for and interest in the children. In other words, the criteria for the satisfaction of the sole responsibility rule, as developed in the case law, were met, and the judge did not find it necessary to consider the 'exclusion undesirable' alternative. She did find the sponsor's income perfectly adequate to maintain the three children, and when the Presenting Officer raised a fresh issue, which had not featured in the Notice of Refusal, she dealt with that too. The HOPO suggested that the sponsor's accommodation in a two-bedroom flat would not be adequate, but applying the 'room standard' and the 'space standard' of the Housing Act 1985, the judge found that it would be perfectly adequate.
  5. None of these findings has been challenged in the application for a review. Instead, a wholly new head of challenge has been raised on behalf of the respondent, namely the judge's failure to apply what is called "the principle of law that children only qualify for settlement in the United Kingdom if their transfer from the country of origin is lawful both here and in the country of origin." The test for that is said to be laid down in the reported case of OM (children : settlement cross border movement) [2005] UKAIT 177, and paragraph 42 of that determination is quoted, which states that
  6. "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."
  7. The grounds for seeking a review appear to make a concession in the case of the eldest child, Fatima, whose mother had died about three months before the hearing in June this year. "However", the grounds continue, the immigration judge "failed to make a finding as to whether the removal of the other children would be lawful." The drafter of these grounds appears to think that if the other parent is dead, there is no need for the sponsoring parent to obtain anyone else's consent before bringing the child to the UK. But at paragraphs 40 and 41, the Tribunal in OM insist that the surviving parent must still demonstrate that he is lawfully entitled to remove the child from the jurisdiction in which it has hitherto been living. As the respondent here is relying on OM, the concession over Fatima does not seem to us to be consistent with that. In any event, Fatima's mother was alive at the date of decision in September 2004, and as this is an appeal under s.85(5) of the 2002 Act, the fact that her mother passed away in March 2006 would not be a circumstance "appertaining" at the time of that decision, which the Tribunal could take into account.
  8. But as we shall endeavour to show, we do not believe the respondent to have been entitled to rely on OM at all in the instant case. Mr Makinde so argued in his Written Submissions on behalf of the appellants, while Mrs Cantrell, quite sensibly we think, did not attempt to elaborate upon the grounds for seeking a review. We should say first of all that we deprecate the late introduction, at the stage of applying for a reconsideration, of a ground which was neither included among the original reasons for refusal nor raised by the respondent before or at the first-instance hearing. In the present case, the HOPO did bring up the issue of accommodation at the hearing, and could have raised OM (which had been promulgated several months previously) if he had wished to. We would remind those in the Presenting Officers' Units who decide whether to apply for reconsideration of the advice given by Carnwath LJ in Mukarkar [2006] EWCA Civ 1045, where he urges restraint in challenging allowed appeals, and warns that a too-ready tendency to do this may thwart the wider legislative objective of achieving a more streamlined system of immigration appeals.
  9. The first thing to note about OM is that the facts of that case are somewhat unusual, and certainly very different from the facts of the present case. In OM, the appellant was a young girl born in Jamaica whose parents were not married. Her mother came to this country as a visitor, leaving Miss OM in the care of her father, and never returned to Jamaica. Instead, she stayed on here as a student and then got two years' leave to remain (the 'probationary period') as the wife of a person settled here. In the meantime, Miss OM accompanied her father and paternal grandmother to Florida, where they lived for several years. It would seem (although there is some uncertainty about this) that her father abused Miss OM and had mental health problems, ending up in an institution. The grandmother in America and the mother in Britain then decided that Miss OM would be best off living with her mother, but instead of applying for a settlement visa, Miss OM obtained a six-month visitor's visa. Before her leave to enter expired, an application was made for indefinite leave to remain as the dependant of her mother.
  10. Before making a decision on this, the Home Office asked for evidence in writing that the father had given his consent to Miss OM being taken out of his care or, in the alternative, a court order permitting the child to be taken from the USA to reside in the UK. When this was not forthcoming, the application was refused under paragraph 322(9) of HC 395, i.e. because of "failure by an applicant to produce within a reasonable time documents or other evidence required by the Secretary of State to establish his claim to remain under these Rules." On appeal, an immigration judge disagreed that there was any need for the evidence requested in OM's case, and went on to allow OM's appeal under paragraph 298(i)(d), which provides for indefinite leave to remain to the granted where "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." The judge felt that the combination of the father's apparent inability to look after the child, because of his mental health problems, and the willingness of the mother and her husband in the UK to look after OM instead, fulfilled the requirements of that rule.
  11. On reconsideration, however, the panel thought that the Secretary of State had been perfectly right to demand evidence that OM's father consented to the child being taken out of his care or, if it was being said that he was not capable of giving such consent, better evidence that he was mentally ill and evidence that the appellant's removal from the American jurisdiction had been sanctioned by a court. They therefore upheld the respondent's decision to refuse the application under paragraph 322(9).
  12. That, we think, is a very far cry from the situation where a child applies for entry clearance for settlement, and is refused under paragraph 297 of HC 395. Very often, as indeed in the instant case, the other parent will not have been on the scene for years, and the child will have been living with grandparents or other relatives. The question will then be whether the parent in the UK has been exercising 'sole responsibility' despite the child's being looked after by other carers. Where the child is still living with the other parent, it will be very difficult (though not impossible) to demonstrate that the parent in the UK has assumed sole responsibility. No doubt, on the other hand, the parent with whom the child is living may be assumed to be giving consent to the child's removal ; otherwise, an application for entry clearance would hardly have been made. In the commoner scenario, where the other parent is said not to have been involved for years, if ever, in the child's upbringing, it may be if that is so that parental responsibility has been abdicated by that parent.
  13. Contrast all that with OM. In that case, the appellant had been living with her father until she came to the United Kingdom for a visit. No application was made for a settlement visa, although it seems that her mother and grandmother had already decided that she was to reside permanently in Britain. Thus, there was no opportunity for an Entry Clearance Officer in America to check whether OM's father wished her to live permanently with her mother, or indeed to decide whether OM's mother had had sole responsibility or whether OM's exclusion from the UK would be undesirable. If in fact OM's father was mentally unstable, had served time in prison and had even abused OM all of which were alleged against him on OM's appeal those were matters which an ECO in America would have been in a much better position to investigate than the SSHD in London.
  14. Thus it is that we would respectfully agree with the panel of the AIT in OM that the Secretary of State was justified in requesting information that an ECO could have obtained had an application for settlement entry clearance been made in the USA, as it should have been. Otherwise, how could he be sure that the father had not been tricked into allowing his daughter to come here for a holiday, not suspecting that she would be kept here permanently? The ratio in OM covers the situation where a child has come to this country for a temporary purpose and seeks to stay permanently as the dependant of a relative settled here. The Secretary of State is entitled to know whether the parent or guardian with whom the child has been living hitherto consents to this. If no such evidence is forthcoming, the Secretary of State is entitled to refuse to vary the child's leave under paragraph 322(9) of HC 395. That is what the immigration judge got wrong in OM. On reconsideration, the AIT found that, on the facts, the respondent was right to refuse the application for indefinite leave under paragraph 322(9).
  15. What the panel in OM go on to say about paragraph 298 of HC 395 is strictly obiter, since the judge at first instance ought not to have gone further than upholding the respondent's decision under paragraph 322(9). Paragraph 298 was in any event, as noted by the panel, wholly inapplicable to OM's case, since it requires the parent with whom the child is hoping to stay permanently to be "present and settled in the United Kingdom." When OM applied to vary her leave, her mother only had limited leave to remain as a spouse (the 'probationary period'), and so OM could not have qualified for indefinite leave under paragraph 298. (There is in fact provision at paragraph 301 for leave to remain "with a view to settlement" as the child of a parent who is herself here "with a view to settlement", e.g. as a spouse during the probationary period, but this is not referred to in OM).
  16. Paragraph 298(i) of HC 395 is divided into four sub-subparagraphs, numbered (a)-(d), dealing in turn with the situations where
  17. (a) both parents are present and settled here ;
    (b) one parent lives here and the other is dead ;
    (c) the parent here has had sole responsibility ;
    (d) the child is to stay with a parent or another relative, and its exclusion would be undesirable.
  18. Paragraph 298(i)(d) contains a further requirement, not found in the other sub-subparagraphs, that "suitable arrangements have been made for the child's care". We suppose this is to ensure that, where the child is to live with a relative other than one of its parents, such an arrangement really is suitable for the child. The panel in OM read into that a requirement for the written consent of whoever has had care of the child abroad, or failing that a court order. This requirement is then extended to sub-subparagraphs (b) and (c), which are actually silent about "suitable arrangements". We would have grave reservations about reading into paragraph 298(i)(b) and (c) a requirement that "suitable arrangements have been made for the child's care" which is not there, but appears somewhere else.
  19. But as we say, the remarks in OM about paragraph 298 are obiter. Still less can they be extended to other paragraphs of the Rules dealing with the admission of children, such as paragraph 297 in the instant case, where an application was made from abroad for entry clearance. OM has even been cited in a family visit appeal, where a child was said not to be eligible to visit one parent in the United Kingdom without a court order permitting it to leave the jurisdiction of the country where it resided. That is the reductio ad absurdum of the perfectly laudable object which underlies OM, namely the protection of children.
  20. We do not think, however, that this object is to be achieved by reading into the Immigration Rules requirements which are not there. Indeed, the Immigration Rules are perfectly capable of achieving this as they stand. In M & A [2003] EWCA Civ 263, for example, two children in India had applied under paragraph 297(i)(a) of HC 395 to join their parents, who were both present and settled in the UK. There was no question here about one parent getting the consent of the other. Indeed, the panel in OM say nothing about reading any extra requirement into the equivalent rule for in-country applications, paragraph 298(i)(a). But the two Indian children were at risk from their parents, who had seriously abused their other three children in the United Kingdom. The Court of Appeal upheld the refusal of the ECO to issue entry clearance on the ground that the children would not be accommodated adequately. The accommodation could not be "adequate" if the children were at risk in it.
  21. The panel in OM make further remarks, this time extending to all the paragraphs in Part 8 of the Immigration Rules dealing with the settlement of children. These paragraphs are said to imply a requirement that the Director of the local Social Services Department must be given details about children who have come or are coming to this country for settlement, so that checks can be run on the new carers, who might turn out to be on the register of sex offenders or the like. This requirement is again said to derive from the phrase in paragraph 298(i)(d) that "suitable arrangements have been made for the child's care."
  22. Again, we would point out that these remarks are obiter, and are not to be taken as an authoritative interpretation of paragraphs 296 to 316 of HC 395. If the Secretary of State wishes to tighten up the Immigration Rules, for example by requiring that all children coming here for settlement must be registered with their local Social Services Department, he is perfectly capable of doing that himself. It is not for this Tribunal to do it for him. The Secretary of State certainly has shown himself capable of tightening up the Rules about children in the past. For example, a few years ago paragraph 310 permitted a child to settle here who had been adopted "in accordance with a decision taken by the competent administrative authority or court in his country of origin." So a child adopted by the order of a court in India could come here. Then the requirement was added that the country had to be one "whose adoption orders are recognised by the United Kingdom." India is not such a country, so as child adopted there cannot any longer be admitted as an adopted child under the Rules : see on this SK ("adoption" not recognised in UK) India [2006] UKAIT 68.
  23. To sum up, the decision in OM is authority only for the correct application of paragraph 322(9) of HC 395, and has no general application to rules 296-316 about the settlement of children. Thus, the immigration judge in the instant case made no error of law in not applying OM to the appeal before her, which was under paragraph 297 of the Immigration Rules.
    No error of law having been identified, the immigration judge's determination allowing the appeal is ordered to stand.
    Senior Immigration Judge McKee
    24 October 2006

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