Cenir v Entry Clearance Officer [2003] EWCA Civ 572

Case No C1/2002/2107

[2003] EWCA Civ 572

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Wednesday, 19th March 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE ALDOUS

LORD JUSTICE BUXTON

LORD JUSTICE MANCE

Between

ALBERTO CENIRAppellant

-v-

Between

ENTRY CLEARANCE OFFICERRespondent

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MR P LEWIS (instructed by Messrs Winstanley-Burgess, London EC1V 2TQ) appeared for Appellant

MR S GRODZINSKI (instructed by Treasury Solicitor, London SW1H 9JS) appeared for Respondent

J U D G M E N T

LORD JUSTICE ALDOUS:

[1]I invite Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON:

[2]This appeal is in form an appeal against a determination of the Immigration Appeal Tribunal dated 2nd August 2002. But as the appeal has developed and as it has been moved before us by Mr Patrick Lewis, who appears for the appellant, the real questions that this court is called upon to determine concern the determination of the adjudicator, from whose determination the Immigration Appeal Tribunal itself heard an appeal. We have been principally concerned, therefore, with that adjudication.

[3]The case arose because Mr Cenir sought indefinite leave to enter the United Kingdom as the child of his mother, who was and is settled in the United Kingdom. The only effective issue, therefore, arose under paragraph 297 of the Immigration Rules, relating to the situation where one parent is present and settled in the United Kingdom. By rule 297(i)(e) it has to be established that that parent "has had sole responsibility for the child's upbringing."

[4]There are other factors that have to be taken into account, but the only issue now remaining in this case is that question of the sole responsibility for the applicant's upbringing.

[5]Before setting out the facts of the case, it will be convenient to refer to some guidance by this court as to how such questions should be addressed. That is most conveniently to be found in the decision of this court in the case of Nmaju v Entry Clearance Officer [2001] INLR 26. At paragraph 8, in the judgment of Schiemann LJ, the Lord Justice quoted from an earlier decision of this court, the judgment of Dillon LJ in Ramos v Immigration Appeal Tribunal [1989] Imm AR 148:

"... 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 [and other examples of that sort are quoted] ... 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 ..."

[6]That passage in Ramos was adopted by this court in Nmaju. Having set that out, Schiemann LJ went on in paragraph 9 of his judgment:

"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."

I would respectfully adopt the observation that the question is a factual one. Each case will depend on its own particular facts. The general guidance is to look at whether what has been done in relation to the upbringing has been done under the direction of the sponsoring settled parent.

[7]I would also respectfully consider that a useful rule of thumb, though not a complete statement of the law, is to be found in the determination of the Immigration Appeal Tribunal in this case, at paragraph 11 of its determination, when it reviewed the authority that I have just referred to and said:

"... it is clearly established that it must be shown that all the important decisions in the child's life, questions concerning health and place of abode, schooling and probably going as far as serious questions of behaviour, mode of dress and the like must be under the oversight of the parent claiming sole responsibility or delegated to someone obliged to consult and act upon her instructions. To have responsibility means to be answerable."

[8]It may be that that statement puts the test a little high and it is not necessary in this case, in my judgement, to go that far in order to determine it. But it does underline the importance of the parent with responsibility, albeit at a distance, having what can be identified as direction over or control of important decisions in the child's life.

[9]I am satisfied that the adjudicator in this case, although he did not set out the law in that degree of detail, had those considerations well in mind.

[10]I turn now to the facts of the case. The facts excite a considerable degree of sympathy, as both the tribunals below readily acknowledged.

[11]The appellant, Mr Cenir, is a national of the Philippines and was born in September 1982. The sponsor is his mother, who in 1999 was granted indefinite leave to remain in the United Kingdom. She was granted that leave in the following circumstances. She left the Philippines in 1986 to find work abroad because she was not able to earn enough to support herself and her three children in the Philippines. By that time she had already separated from her husband, who is variously described in the papers as a wastrel and a drunkard. She received no financial support from him.

[12]She left her children in the care of her parents, in circumstances and in a family that I shall have to speak a little more about shortly. She initially found work in Kuwait as a domestic servant, returning to the Philippines for six months in 1989. She then went back to Kuwait. Her employers then moved to the United Kingdom, bringing the sponsor with them. Put shortly, the evidence was that the sponsor had been very badly treated by those employers. She left their employ, remaining in the United Kingdom as an overstayer.

[13]As I have said, in 1999, but not until then, she was granted indefinite leave to remain here under a programme for the regularisation of the position of overseas domestic staff who were in the difficult, to some extent desperate, situation in which this lady found herself.

[14]She returned to the Philippines for about a month in September 1999, taking benefit of her indefinite leave to remain. In August 2000 the appellant, who was then only a few weeks short of his 18th birthday, applied for entry clearance under the provisions that I have already set out.

[15]The adjudicator heard a good deal of evidence about the relationship between the sponsor and the applicant, which of course he had to investigate closely. He made certain findings, having found the sponsor to be a witness of truth. In particular, he said this at paragraphs 27 and 28 of his determination:

"I accept the sponsor's evidence that during the period of her separation from her children and the other members of her family since December 1986, she has regularly sent money home which has been used to support not only her three children (e.g. by buying clothes for them and paying for the appellant's school fees during the short period when he attended a private school) but also other members of her family, such as her brother who is disabled. She is clearly a devoted and caring mother. I also accept the sponsor's evidence that since her departure from the Philippines in November 1986, she has kept in regular contact with her family there, initially by letter, and then since 1993 when a telephone was installed at the home of her sister Rosie, by calling her sister and children there, and finally since 1998 when a telephone was installed at her parents' home by calling her parents and children there. She states that she has telephoned the family about every two weeks on average. I accept her evidence in that regard. There is ample documentary evidence before me as to the telephone contact between the sponsor and her family in the Philippines."

The adjudicator then made reference to various authorities, including the case of Nmaju which I have already cited, analysing the law broadly in the terms that I have already indicated.

[16]He then said this at paragraphs 34 and 35 of his determination, and it is these conclusions which are criticised before us:

"In the present instance I take the following factors into account: 1. The sponsor's separation from the appellant was not merely of short duration (during which it would normally be easier to demonstrate the continued exercise of 'sole responsibility' by an absentee parent). On the contrary, the separation started when the appellant was just four years old, and had lasted for some fourteen years as at the date of decision. 2. Whilst the sponsor was the main breadwinner for her three children during that period, the evidence before me is that her contact with her family in the Philippines, whilst regular, was not very frequent. On the sponsor's own evidence, which I have accepted, she telephoned home about once every two weeks on average. 3. The sponsor was not living during his lengthy separation from his mother with 'outsiders', e.g. family friends or paid carers. On the contrary, he lived for the whole of that period with his close relatives, in the form of his grandparents and his two elder brothers, in what appears on the evidence before me to have been a close and loving family. In general close relatives are more ready to take responsibility for the day-to-day care and control of a child than an 'outsider' would be prepared to do. 35. Whilst I have not found it an easy decision to make, having given careful consideration to all the evidence which is before me and in the light of the authorities which have been cited on the appellant's behalf, I have come to the conclusion that in the particular circumstances which are before me, the sponsor's self-sacrificing absence from her family for so many years in a distant land and the relatively limited degree of her involvement in the upbringing and day-to-day care and control of her children during that period do not, on the evidence, amount to 'sole responsibility' for the purposes of paragraph 297(i)(e). It is therefore with some regret that I find against the appellant on this issue."

[17]The basis upon which the appeal is put and the grounds advanced have, to a not inconsiderable extent if I may say so, changed their shape before the various tribunals which have had to consider them. The basic reason for that is that, despite the very devoted efforts of counsel, it is extremely difficult in this case to formulate an appeal from the decision without inviting the appellate tribunal to reargue or reconsider questions of fact and judgement that have already been addressed by the special adjudicator under the ambit of the authority that I have ventured to set out.

[18]The ground relied upon before us reads in relevant part:

"Further and/or alternatively in relying upon the absence of day to day control and care for the appellant the adjudicator applied the wrong test in considering whether the sponsor had sole responsibility ..."

[19]Mr Lewis refined that ground before us by saying that it should be read as arguing that the adjudicator was not entitled to rely only on the absence of day-to-day control to find that the sponsor did not have sole responsibility for the appellant. That complaint, which is the principal complaint made in this appeal, seems to me to misinterpret what the adjudicator said in the passages which I have just set out. Fairly read in the context of his whole adjudication, it seems to me clear that the adjudicator was not emphasising the absence of the sponsor from day-to-day control and care of the appellant, much less making that the only consideration that he thought relevant. The considerations that he had in mind were, first of all, responsibility for day-to-day care and control and, secondly, involvement in not only day-to-day care and control, but also in the upbringing of the child.

[20]"Responsibility" is here used by the adjudicator to connote not simply the performance of what can be described as hands-on control or care of the child, but rather the degree of decision-making and overall control, not only of the child's day-to-day life but also his general upbringing, which are the criteria that are emphasised in the authorities. He was, in my judgement, making that point when he set out the background that he thought to be relevant in paragraphs 34(1) and 34(2). As was pointed out in the course of argument, if the adjudicator had thought that absence from immediate control of the child was a conclusive factor, he would have decided this case -- and of course would have been wrong in so deciding it -- solely on the basis that this lady had been absent from the child's life, in the sense of absence from his physical presence, for, on any view, 13 of the last 14 years. The adjudicator did not make that mistake. He was entitled to consider that the sponsor had not had a sufficient degree of what he described as involvement in the upbringing of the child for it to be possible to say that she had had sole responsibility for him. The adjudicator did not therefore make the mistake that is complained of. The conclusion that he came to was open to him on the evidence.

[21]A second and ancillary matter, however, is this. Mr Lewis developed a further ground of complaint which I have to say is only indirectly to be extracted from the grounds of appeal and should, in the form in which it was put to us, have formed a separate head of appeal. The adjudicator made certain findings about the facts, as I have already summarised. But he also heard evidence, which it is said he did not give sufficient weight to or alternatively simply ignored, concerning other connections between the sponsor and the child. A good deal of this was evidence about the financial contributions made by the sponsor to the family and the home.

[22]It is quite clear that not only is the sponsor, as the adjudicator found, a devoted and caring mother, but she is also very concerned about the overall welfare of what was described as a close and loving family, and provided significant financial support to that family. But that of course is not in any way conclusive as to whether she at the same time had sole responsibility for the child. The adjudicator was in my view entitled to take into account the likely commitment and involvement of the child's family in his upbringing as a factor to weigh in the balance as he did.

[23]It is said, however, that there was evidence of further contact not mentioned by the adjudicator between the family and the sponsor. She was described in argument before us as having given instructions as to the child's upbringing on occasions when she was sending money to the family and to the child. We have been shown a schedule produced, as far as the appeal proceedings are concerned for the first time this morning, setting out what was said on those occasions. For my part, I cannot agree that those exchanges are any more than neutral as to the question that has to be decided. Insofar as it is appropriate for us to form a view of those facts -- and I only do this because they were produced for the first time in the appeal documents today -- in so far as it is appropriate for us to form a view of them, it seems to me that they are typical of the sort of exchanges that might well happen between a loving and responsible daughter and her parents and a family in which there are a number of children to whom she is very properly and lovingly giving support and financial assistance. But they are inconclusive as to her playing any determinative role in the upbringing of her own child.

[24]Furthermore, those exchanges were before the adjudicator. In the passages that I have already cited from paragraph 28 of his adjudication he made it clear that he had taken them into account. It was not necessary for the adjudicator to set out every piece of evidence that he had placed in the balance in coming to his determination. I am quite clear that the adjudicator did properly consider the evidence in this case, and there are no grounds at all for creating what effectively was a further and separate ground of appeal that the adjudicator had erred in law -- and this is what would have to be established -- in his assessment of this part of the evidence.

[25]I have gone into that last matter in some more detail because it was a matter stressed before us but not in its present form placed either before the Immigration Appeal Tribunal, nor before either of the two Lords Justices of Appeal who have considered this case on paper before permission was granted.

[26]At the end of the day, this was a question of fact and judgement for the adjudicator, who took a lot of trouble over this case. He was concerned about it, as anyone would be, because of the position of the mother and her history. But he made no error of law in the conclusion to which he came, and there was therefore no ground upon which he should have been reversed by the Immigration Appeal Tribunal, and no ground upon which this court can interfere. I would dismiss this appeal.

LORD JUSTICE MANCE: I agree with my Lord's reasoning and conclusions, and add only a few words of my own.

[28]The adjudicator had to make his decision on the "total pattern of fact": see Ramos (Suzara) v Immigration Appeal Tribunal [1989] Imm AR 148, cited in Nmaju, 31st July 2000 at paragraph 8. That is what he purported to do in a clear and conscientious decision: see in particular paragraphs 23, 34 and 35.

[29]In paragraph 34 he identified three particular considerations. All of this were and are in my view material individually and cumulatively. They appear to me to point clearly against any likelihood that the sponsor would have or retain "sole responsibility".

[30]In paragraph 35 the adjudicator then expressed his conclusion, which he made clear that he had not found it easy to reach, which was that:

"... having given careful consideration to all the evidence which is before me and in the light of the authorities which have been cited on the appellant's behalf, I have come to the conclusion that in the particular circumstances which are before me, the sponsor's self-sacrificing absence from her family for so many years in a distant land and the relatively limited degree of her involvement in the upbringing and day-to-day care and control of her children during that period do not, on the evidence, amount to 'sole responsibility' for the purposes of paragraph 297(i)(e). It is therefore with some regret that I find against the appellant on this issue."

Contrary to Mr Lewis' submission, this is not a conclusion based solely on the absence of day-to-day care or day-to-day control. It referred expressly to the sponsor's limited degree of involvement in the applicant's "upbringing" generally. Having regard to length of separation and relative infrequency of contact, and the close and long involvement of grandparents and other family members with whom the applicant was living (factors all mentioned in paragraph 34), I find it impossible to fault the adjudicator's conclusion, or to regard it as one which was in any way unrealistic. The adjudicator had to make a judgment on the facts. The judgment at which he arrived is not one to be interfered with in any way lightly and was well within the ambit of the permissible.

[31]Mr Lewis submitted, as my Lord has pointed out, that the adjudicator erred in failing to take into account sufficiently or at all the evidence of communications and instructions other than by telephone, but he did refer to these at paragraph 27. We have seen copies and translations of what are said to be a selection. Having seen them, they seem to me, as they do my Lord, to lend no positive support to this appeal. The sponsor's financial contribution was always clear. The contents of the notes on the remittances were apparently only regarded by Mr Lewis as significant at the last moment before the adjudicator. But we have been shown a typed version of what, as I say, is said to be a selection. They are addressed to the grandparents or aunt and they refer to the sponsor's relatives, nephews and children, in similar, although of course affectionate, fashion. The terms are brief and general family notes, and often gave large discretion to the grandparents or aunt to deal with the money sent.

[32]For those additional reasons, I agree.

LORD JUSTICE ALDOUS: I agree with the reasoning and conclusion of both judgments. I only add a few words as permission to appeal was given by this court.

[34]The sole issue before the special adjudicator was whether Mrs Cenir had sole responsibility for her son Alberto's upbringing as required by rule 297(i)(e). A decision on that question is fact-dependent and I do not envisage there could be many, if any, cases where the facts would be the same. In the circumstances, I do not believe it appropriate to try to set out a list of all the matters which should be taken into account. But clearly the nature of the responsibility undertaken by the parent, its length of time and extent must be relevant.

[35]From the transcript it seems that permission to appeal was given because there was a real prospect of establishing that the special adjudicator had wrongly laid too much stress on the absence of day-to-day control. Mr Lewis' main submission was to that effect. He went so far as to submit that the special adjudicator had relied only on the absence of day-to-day care and control. I disagree. There were many considerations which he took into account: for example, the finding of the special adjudicator that the appellant's mother was a reliable and credible witness was clearly a relevant matter. As my Lords have pointed out, he also took into account what I can label as duration of separation, provision of financial support, the nature of the care, the degree of involvement, and day-to-day care and control. The special adjudicator then concluded that on the evidence sole responsibility had not been established. That in my view was a decision to which he was entitled to come. There was no particular stress on the absence of day-to-day control in his decision. It was just one factor that he took into account.

[36]I therefore would also dismiss this appeal.

ORDER

Appeal dismissed; section 11 order; detailed assessment of the Appellant's Community Legal Services Funding certificate. (Order not part of approved judgment)