Buydov v Entry Clearance Officer, Moscow [2012] EWCA Civ 1739

[2012] EWCA Civ 1739Case No C5/2012/0956/AITRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL ASYLUM
AND IMMIGRATION CHAMBER
OA/04126/2010
Venue Royal Courts of Justice, Strand, London. WC2A 2LLDate 20/12/2012
Before
LORD JUSTICE WARD LORD JUSTICE HUGHESMR JUSTICE DAVID RICHARDS Between:
Between
Alexey Pallovich BuydovAppellantEntry Clearance Officer, MoscowRespondent
Galina Ward (instructed by Landmark Chambers) for AppellantMatthew Barnes (instructed by Treasury Solicitors) for RespondentHearing Hearing dates : Wednesday 5th December 2012
Judgment
[1]This second appeal concerns the correct approach to an application for entry to the UK when it is made by a child on the grounds that his sponsoring parent has limited leave to remain with a view to settlement. The relevant Immigration Rule is paragraph 301(1)(b). Paragraph 301 is one of a series of provisions, which begins with paragraph 297, dealing with applications for entry made by children on the strength of the status of their parents. Several of these paragraphs, including 301(l)(b), employ the expression “parent....who has had sole responsibility for the child’s upbringing”. That is the expression which had to be applied in this case.[2]The applicant is now 20, but was a little short of 18 when the application with which we are concerned was made. He is the child of two Russian parents. He was brought up in Russia with them and is himself a Russian citizen. He was bom on 14 September 1992.[3]The applicant appears to have been several times to the UK. He came as a visitor when aged 11 in 2004, and attended Summer language schools in 2005, 2006 and 2007. Throughout that time he was living in Russia. Whilst still living there, he was entered as a boarding pupil at Wellington School, Somerset, for the school year 2007-8. He was then just rising 15 and went to start the two years’ GCSE courses. He was granted a student visa for this purpose. By then, it seems that the marriage of his parents had either broken down, or was in the course of breaking down. In September of that year (2007) his mother formed a relationship with the gentleman who is now her husband; he is also originally Russian but is a consultant doctor working in England and a British citizen. However, whilst Mother found the school (on the internet), Father approved it, agreed to pay the fees, and shortly afterwards visited the appellant at it in February 2008. The Immigration Judge found that he had not simply been told by Mother what was happening, as she had asserted, but took a more active role than she suggested and maintained a genuine and active interest in the appellant’s education.[4]Meanwhile, in January 2008, the appellant’s mother came to live with her new partner in England. Mother and Father were divorced, via a consensual court procedure, in Russia in April 2008. Mother and her new husband married in July 2008. They live in England. Father continues to live in Archangel in Russia, where he also formed a new relationship. The appellant’s maternal grandparents live not far away, also in Archangel.[5]As part of the divorce arrangements, Mother and Father entered in April 2008 into a written agreement as to the arrangements for their son, the appellant, which was lodged with the court. Under it they agreed that Mother should have (as translated):
“the guardianship over the Son till his becoming of age as well as sole responsibility for his upbringing, education, including the right of making important decisions about his life, education, defining place of residence, travel etc.”
Father was said to retain his right to contact as he wished, “providing that he did not interfere with the decision making” mentioned, Mother agreed to place no barriers in the way of contact not less than three times per year, and Father agreed to pay maintenance for as long as the appellant was in full time education, including university education. The divorce decree duly records that there is no disagreement over property distribution or the guardianship of the child, as it also records that the parent residing separately from the child has both the right and obligation to “participate in bringing up the child” whilst the parent residing with the child has no right to prevent it. In due course, the Immigration Judge concluded that the agreement was approved by the Russian court and would no doubt be enforced by it if it were in dispute. The judge also adverted to the similarity of its wording to the terms of the UK immigration requirements and concluded, contrary to Mother’s evidence, that it was “not unlikely” that one purpose, at least, of this agreement was to facilitate the appellant’s application for settlement.[6]As the wife of a British citizen the appellant’s mother was duly granted in August 2008 limited leave to remain with a view to settlement. She has since attained British citizenship.[7]After two years and with his GCSEs completed at the boarding school, the appellant moved in September 2009 to a Grammar School near to his mother’s home for the sixth form. This was a day school and, unlike at the previous school, no fees were payable; the appellant apparently qualified under some local regime for non-fee schooling. The Immigration Judge found, contrary to the evidence of Mother, that she had not made this decision entirely unilaterally but had consulted Father; they spoke and met from time to time, and his conclusion was that what they now had in common was effectively limited to the appellant and his life. Up until then the appellant had spent much of the school holidays at the home which she shared with his stepfather, although he had also returned to Russia from time to time to see his father, grandparents and friends. From the summer of 2009 he lived with mother and stepfather in their household.[8]The Immigration Judge found that Father, despite the terms of the agreement, “retains some responsibility in practice for the appellant’s upbringing” and that he continued to play “a fairly important part” in the appellant’s life. He was ready and willing to provide a home for him if he needed it. He continued to maintain him. He saw him when he was in Russia. On such occasions, the appellant sometimes stayed with him and sometimes with his grandparents, preferring the latter not because of any rift with his father but because the relationship with Father’s new partner was not good. It appears that Father is content that the appellant should continue to live as part of the household of Mother and Stepfather, and that he should make the application which he has made for admission to the UK with a view to settlement.[9]The appellant made that application, initially in this country, in September 2009. It could not be granted here because he did not have the right kind of existing visa or entry clearance, but only a student one. Accordingly, he returned to Russia in December 2009 for the purpose of making an out-of-country application for entry clearance. That application was refused by the respondent Entry Clearance Officer. The appellant challenged that refusal but failed in front of the Immigration Judge in the First Tier Tribunal on the grounds that Mother had not had “sole responsibility” for his upbringing. The proceedings since then have been a little complicated and it is not necessary to rehearse them. The upshot was that whilst the findings of primary fact of the First Tier Tribunal were accepted, it was common ground that there had been one error of approach by the Immigration Judge. Accordingly, the Upper Tribunal re-determined the appeal, using the facts found by the Immigration Judge, supplemented by a little additional material. It too concluded that the appellant had not shown that his mother had had sole responsibility for his upbringing, because Father retained some responsibility for it. It is thus that the second appeal from that determination comes before us.[10]It is the fact that the appellant has remained in Russia, and that, at least for a period, his mother shuttled between England and Russia to be with him when she could. The Immigration Judge found that the appellant lived partly with father, partly with grandparents, and occasionally with an uncle. Except that that provides nothing to contradict the findings about Father’s willingness to provide a home, and the appellant’s fragile relationship with the new partner, what has happened since is not relevant to the question whether the conditions laid down by paragraph 301(l)(b) were met at the time of the application. It should also be recorded that there would have been no obstacle to the grant of a fresh student visa, providing that the conditions for such were met. That might well have meant, it seems, payment of school fees but we were told that the school which the appellant was then attending did charge fees, although the appellant had been attending under an arrangement for which he qualified under which none were levied on him. Apart from his application on the basis of his mother’s contended-for sole responsibility, the appellant also applied on the two alternative bases(a) that his circumstances provided serious and compelling family considerations pointing to his admission, and(b) that his Article 8 rights would be infringed if he were not admitted. Those alternative grounds of application failed, essentially because he was in no sense without an alternative home and could have continued his studies in England, albeit without leave to enter with a view to settlement. There is no appeal against the refusal of entry on those alternative grounds, and no more need be said about them.

The Immigration Rules

[11]These, despite their title, are not delegated legislation. They are, however, formally published statements of the practice of the Secretary of State which she is required by section 3(2) Immigration Act 1971 to lay before Parliament under the negative resolution procedure. Moreover they create legal rules, since by section 84(l)(a) Nationality Immigration and Asylum Act 2002 a right of appeal against an immigration decision is given on the ground that it is not in accordance with them. Rule 301 provides as follows:
“301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he: (i) is seeking leave.. ..to join or remain with a parent or parents in one of the following circumstances: (a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or had been given limited leave to enter or remain in the United Kingdom with a view to settlement; or (b) one parent is being or had been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or (c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child’s care;....”
There are then further conditions which must be met, which do not need to be set out in full since there is no doubt that the appellant could meet them. The applicant child must be under 18, unmarried and not leading an independent life, and he must be going to be accommodated and maintained by the parent(s) without recourse to public funds.[12]Thus the critical condition for the present application was that mother, as the sponsoring UK-based parent, should have had “sole responsibility for the child’s upbringing” (para 301(1)(b)). Both the Immigration Judge and, on re-determination, the Upper Tribunal, held that she had not, because Father retained some responsibility for his upbringing.[13]It can be seen that the scheme of paragraph 301, like other parallel paragraphs beginning with paragraph 297, is to treat differently applications to join one parent and applications to join both parents. If the application is to join both parents, who are themselves settled or settling, there is no investigation required of responsibility for upbringing. In effect, the rules assume that between them they have full responsibility. Other parallel paragraphs, such as 297, underline this by containing also separate provision for entry without consideration of the incidence of responsibility where the other parent is dead: see for example paragraphs 297(i)(d) and 298(i)(d). The condition of sole responsibility exists only where there is but a single sponsoring parent in the UK whom the applicant seeks to join.[14]The parties to this appeal both accept the authority of three decisions of this court concerning the expression “sole responsibility”. In Ramos v Immigration AppealTribunal [1989] Imm AR 148, this court considered the predecessor of the modem rules, which was in similar terms. Dillon LJ (at 151-3) set out the general approach, in terms which have frequently been endorsed since: “...the issue of sole responsibility for the child’s upbringing is not to be decided only between the child’s parents. There may be cases where the conclusion is that there has been a sharing of responsibility between the parent who is settled here and some other relative, or other person possibly, in the country where the child has been left when the parent came here. The second point which is also established is that 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, or putting the child to bed, or seeing what it has for breakfast or that it cleans its teeth or has enough clothing and so forth....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... 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 fact 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..."[15]Citing and applying that passage in Nmaju v Entry Clearance Officer [2001] INLR 26 Schiemann LJ added this at [9]:
“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.”
[16]Thirdly, in Cenir v Entry clearance Officer [2003] EWCA Civ 572 this court emphasised that the decision whether or not sole responsibility is established is one of fact. Buxton LJ observed at [6]:
“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.”
And at [26] he concluded:
“At the end of the day this was a question of fact and judgment 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...and there was therefore no ground on which he should have been reversed by the Immigration Appeal Tribunal and no ground upon which this court can interfere.”
It is interesting to observe that in that case the submission rejected was in effect the reverse of the argument advanced in the present appeal; it was that too much emphasis had been placed on the incidence of day to day control.[17]All three of these cases involved what is the normal or paradigm factual situation of a sponsoring parent who has settled in this country and a child who has been left behind in the country of origin. Moreover, all three were cases where the other parent had either wholly disappeared from the life of the child or took no part in it, so that there was no suggestion that he exercised any responsibility for the child’s upbringing. They were all cases in which the issue was whether the de facto care given by a relative or some other person to the child left behind in the country of origin was given under the direction of the sponsoring parent in the UK, so as to justify the conclusion that the latter had had sole responsibility despite the geographical separation.[18]Additionally, the AIT reviewed a number of first instance decisions on this expression in TD (Paragraph 297(i)(e): “sole responsibility” (Yemen)) [2006] UKIAT 00049, under the presidency of the Deputy President, Mr Ockleton. All are simply applications of the principles set out above, but the cases reviewed included some where there were two parents whose positions fell to be considered. The Tribunal drew attention to the factual difference between one-parent and two-parent cases. It observed that in a one-parent case the starting point will generally be that it is the sole active parent who will be likely to have sole responsibility, and the issue will be whether s/he has exercised it despite the separation. On the other hand, in a two- parent case the usual starting point will be that both parents have responsibility for the upbringing of the child.[19]Neither party to this appeal before us has challenged any part of the approach chronicled by the AIT in TD, which is of course a decision of a court extremely experienced in this field. The existence of the distinction identified between one- parent and two-parent cases is a valid one, and it is consistent with the scheme of the Rules identified at [13] above. It is however important to remember that the question remains one of fact in each case, and not to elevate the distinction into a presumption of law. There might be some risk of misreading the distinction as such a presumption, or as importing some independent legal test of exceptionality, if one were to take out of context one part of the helpful summary contained at [52] of TD, which contains the following:
“(iv) Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.”
The IAT clearly did not mean to impose a legal test. Its review of the cases is predicated on the fundamental proposition that the issue of sole responsibility is one of fact. It was doing no more than identifying where the necessary factual enquiry is likely in most two-parent cases to lead, and as such the proposition is accurate. The application of the factual test to two-parent cases is well illustrated by some of the decisions reviewed in TD. In SSHD v Pusey [1972] Imm AR 240, discussed at [35], the sponsoring parent in the UK was Father, and the child had lived for twelve years with her grandmother and mother in the country of origin. Although Father shouldered the main responsibility, the close contact of mother meant that he did not have sole responsibility. Eugene v ECO Bridgetown [1975] Imm AR 111, discussed at [36] was a similar case, as were Martin v SSHD [1972] Imm AR 71, discussed at [11], ECO, Accra v Otou-Acheampong [2002] UKIAT 06687, discussed at [37] and R (Philippines) v SSHD [2003] UKIAT 00109, discussed at [38]. On the other side of the factual dividing line was Alagon v ECO, Manila [1993] Imm AR 336, discussed at [39]. There the parent remaining in the country of origin, although he occupied the same house as the child, which belonged to the sponsoring mother, was divorced from Mother, made no financial contribution and took no part in the child’s life. Mother was held to have had sole responsibility. That illustrates the factual nature of the enquiry and the proposition that even where there is a second parent in close physical proximity to the child, s/he may not be taking any responsibility for him.

This appeal

[20]For the appellant, Miss Ward’s central submission draws attention to the factual difference which the present case has from all the reported cases set out above, and from all of those reviewed in TD. Here, she points out, the appellant was living in the household of the sponsoring mother at the time of his application. True, when he was a boarder at Wellington School he had lived principally there, but his real home base was, she contends, even then with mother and stepfather and once he had left that school in the Summer of 2009 he lived day to day with them. Thus, she contends, Mother was his primary or chief carer and, moreover, was confirmed as such under the terms of the written agreement with Father.[21]With that background, Miss Ward submits that the Upper Tribunal fell into three related errors of law: i) it failed to give any weight to the terms of the published guidance contained in the Secretary of State’s Immigration Directorate Instructions (“IDIs”); ii) it essentially concluded that a parent could only demonstrate sole responsibility if the other parent is entirely excluded from the life of the child; and iii) it failed to come to any conclusion about the correct interpretation of the expression ‘sole responsibility’. It is convenient to focus first on the second submission. This formed the heart of Miss Ward’s argument. With it she coupled the submission that, although there might be unusual cases where it is not so, the primary carer and home-provider of a child should usually be regarded as having sole responsibility.[22]As recorded above, this case reached the Upper Tribunal because it was common ground that in one respect the First Tier judge had misdirected himself. He had, it was accepted, directed himself that it was necessary to show that Father had abdicated responsibility for the child before Mother could have sole responsibility. It is clear that, to the extent that he so directed himself, that would indeed be an error. It will usually be relevant to enquire whether one parent has wholly abdicated responsibility, because if s/he has, it is much more likely that the other has sole responsibility, but the converse does not necessarily follow. What Miss Ward submitted was that the Upper Tribunal had in effect repeated this error. That is to be gathered, shecontended, from the fact that Mother had provided a home for the appellant and from the contents of paragraphs [30] and [31] of the decision of the Upper Tribunal. At [30], the Upper Tribunal stated its conclusion that:
“...in the light of the Immigration Judge’s findings of fact....the appellant is unable to establish that his mother had sole responsibility for him.. .notwithstanding that almost immediately prior to the application he was living in the UK with his mother and stepfather and had been for some significant time.”
The reasoning behind that conclusion is expanded at [31] as follows:
“[The Immigration Judge]...found that the appellant’s father played a more significant role (than had been suggested) in approving the choice of school for the appellant. He found that the appellant’s father maintained a genuine and active interest in his education. He also found that there is a degree of consultation with the appellant’s father. He found in effect that the appellant’s mother and father discuss the appellant. He found that the evidence does not show that the appellant’s father has little or no interest in his son. Crucially....he states that “I am not persuaded on the evidence that the appellant’s father does not, despite the wording of his agreement with the appellant’s mother, retain some responsibility in practice for the appellant’s upbringing. It seems to me that he continues to play a fairly important part in the appellants’ life.”
He found...that part of the appellant’s supportive family network in Russia includes his father.”[23]I am afraid that I am quite unable to spell out of that summary any self-direction that it is only where the father has entirely abandoned or abdicated interest in his son that the mother could have sole responsibility. It is not surprising that the finding that he had (clearly) not done so was recorded, for it was plainly relevant, but that is not the same as treating the finding as conclusive. The Upper Tribunal had correctly directed itself at [19] and [23] (by reference to TD and its summary of the preceding cases in this court and elsewhere) that the question was one of fact. It had correctly recorded the unusual facts of a home with Mother and the Russian agreement. It did not substitute a test of abdication, and it would have been very surprising if it had done so, given that it was precisely this error which had led to the need for redetermination.[24]Miss Ward’s ancillary submission, that a parent who is the primary carer and home-provider will ordinarily have sole responsibility cannot, I fear, be made out. When parents split up, the children will ordinarily live either wholly or principally with one of them, but the range of possible ways of sharing responsibility for their upbringing is nevertheless almost infinite. Family courts increasingly encourage the acknowledgement that responsibility is shared, whatever the form of order or of agreement without order. The sentiments expressed in the presumably pro-forma sentence in the Russian divorce decree, cited at [5] above, mirror the approach of family courts in many countries including this one. A non-resident parent may easily have important responsibilities for the child, financial, educational, recreational and decision-making amongst them. Miss Ward rightly stopped short of any submission that the Upper Tribunal’s conclusion was perverse. In the absence of perversity, it was plainly not precluded simply by the fact that Mother was the primary carer.[25]The IDIs are issued by the Secretary of State for the guidance of those who have to administer immigration control. They are issued under the statutory authority of paragraph 1(3) of Schedule 2 to the Immigration Act 1971. That authorises instructions to be given “not inconsistent with the immigration rules”. In the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, Lord Brown at [10] and [11] emphasised that the intention of the Secretary of State in making the Rules (not the IDIs) has, on conventional principles of construction, to be gathered objectively from the Rules themselves. It is not to be gathered from supposed policy considerations, and “still less” from the IDIs, which experience shows sometimes to have been issued inconsistently with the interpretation put upon the Rules by the court. It is true that in A v SSHD [2010] EWCA Civ 773, faced with the word “false” in the Rules, which could plainly mean either “dishonest” or “inaccurate”, this court was persuaded that “exceptionally it is even possible” to get some assistance from the IDIs, since they were entirely consistent with several other powerful indications of what the Secretary of State meant by the use of that word. But the reference to them was extremely cautious, as the language used demonstrates. Nor was the word there under consideration one which had been the subject of a number of court decisions, as the expression “sole responsibility” has.[26]Miss Ward relies on the fact that the IDIs contain the following: i) at 4.1:
“A parent claiming to have had ‘sole responsibility’ for a child must satisfactorily demonstrate that he has, usually for a substantial period of time, been the chief person exercising parental responsibility it must be shown that he has had, and still has, the ultimate responsibility for the major decisions relating to the child’s upbringing and provides the child with the majority of the financial and emotional support he requires. It must also be shown that he continues to have care and control of the child...”
(emphasis supplied). ii) at 4.4: “A residence order (or an existing custody order) should normally be accepted as evidence that the sole responsibility requirement of the rules is met, provided that it gives responsibility for the child to the parent who is settled here or being admitted for settlement.[27]The difficulty with this submission is fivefold. First, the expression here under consideration has been construed by the courts in a series of cases. Second, the proposition that a residence order is evidence is clearly correct, but to treat it as sufficient evidence is simply wrong for the reasons set out at [24] above. Third, the proposition that a parent must have care and control of the child to have sole responsibility is simply wrong; it is inconsistent with all the cases where the child has remained in the country of origin in the day to day care of someone else, but under the direction of the parent in the UK. Fourthly, the IDIs are not internally consistent. At 4.3 they provide a non-exhaustive list of considerations which will be relevant to the question, under the introductory remark that sole responsibility must be established “to the exclusion of the other parent”. Whilst that is a correct statement, it is not consistent with the use in 4.1 of expressions such as “chief person” and “the majority of the financial and emotional support he needs”. Above all, and fifthly, Miss Ward’s submission is not made good even if this court might look at the IDIs despite all the foregoing difficulty about doing so. It is made good only if it can be said that the Upper Tribunal erred in law in declining to do so. Given the very clear direction in Mahad. that cannot possibly be said. The Upper Tribunal considered the IDIs, Mahad and A v SSHD. Its conclusion that it did not derive assistance in this case from these IDIs cannot be characterised as an error of law.[28]The remaining submission is that the Upper Tribunal erred in law in not coming to any conclusion about the correct interpretation of ‘sole responsibility”. The Upper Tribunal was not only not obliged to venture on an exegesis on the general meaning of the term; it would have been both unnecessary and very unwise to do so. A court which does attempt a general exposition of a statutory or comparable provision runs the risk of substituting some other language for the language of the rule, and introducing an unwarranted gloss on the rule. What it had to do was to direct itself correctly according to the law as expounded in the several cases to which it was referred, and then apply it, confining itself to the facts of the instant case. That is what it did.[29]For these reasons, the Upper Tribunal was entitled to reach the conclusions it did, and despite Miss Ward’s valiant efforts the appeal must be dismissed.[30]I agree.[31]I also agree.