AA (HC395 para 297; Sole Responsibility) Ghana [2002] UKIAT 06687 (20 February 2003) [2002] UKIAT 06687

UKIAT
AA (HC395 para 297; Sole Responsibility) Ghana [2002] UKIAT 06687 (20 February 2003)
[2002] UKIAT 06687 · 2003-02-20
[1]AA (HC395 para 297;Sole Responsibility) Ghana [2002] UKIAT 06687 TH15980-2002 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 08/10/2002 Date Determination notified: 20 February 2003 Before Mr G Warr (Chairman) Dr A Chaudhry Mrs A J F Cross De Chavannes Between AA APPELLANT and Entry Clearance Officer - Accra RESPONDENT DETERMINATION AND REASONS The Entry Clearance Officer, Accra, appeals the determination of an Adjudicator (Mr T O'Flynn) who allowed the appeal of Miss Otuo-Acheampong (hereinafter for convenience referred to as the appellant) from the decision to refuse her an entry clearance for settlement.[2]Mr D Ekagha appeared for the Entry Clearance Officer while Miss C Boaitey, of Counsel, instructed by Afrifa and Partners, solicitors, represented the appellant.[3]The background to this case is as follows. The sponsor is the appellant's mother (Mrs Ankama). The appellant was born in 1983. Her mother left Ghana in 1986. In 1995 the sponsor was granted indefinite leave to remain in the United Kingdom. She visited the appellant in 1998 in Ghana for some five months.[4]The appellant was accompanied by her father to the interview with the Entry Clearance Officer. She told the Entry Clearance Officer that she lived with her grandmother who was quite old. If she had a problem she would talk to her grandmother about it. She had started at boarding school in 1999 and stated that she, the appellant, chose this particular boarding school. She confirmed that her father had brought her to the interview. She had three aunts in Ghana - she could not stay with them because they were all married. The appellant's father, who was in turn interviewed, when asked why his daughter could not live with him said:
"Initially I was not working. She feels more comfortable staying with grandmother than me. Now I am working."
Asked how often he saw his daughter, her father replied "almost every holiday. She comes to me before she goes to grandmother." When asked who paid for school fees, the appellant's father said, "I do and grandmother pays household things. I give her money sometimes when she is at school."[5]Asked whether he would like his daughter to live with him, he said:
"Yes. But she feels comfortable with the mother."
The Entry Clearance Officer gave the following reasons for refusing the appellant's application under paragraph 297 of HC 395:
"1. The appellant was a 17-year-old girl wishing to settle with her mother in the UK. Her mother had first gone to the UK in 1986 when the appellant was 3-years-old. The appellant provided her original birth certificate (Appendix B) and I was satisfied that they were related as claimed. The sponsor had been granted ILR in February 1995. I noted that the sponsor was in full-time employment, had sufficient savings and was living with her husband in adequate accommodation in the UK (Appendix C). 2. However, I found the following points to be of interest in considering whether the sponsor had had sole responsibility for the appellant and whether there were any serious or compelling considerations to take into account. · The appellant had been 3-years-old when her mother left Ghana for the UK. She had not applied to join her mother in the UK until 3 months before her 18th birthday. Her mother was granted ILR in 1995 (Appendix D) but did not return to see her daughter until 1998. The appellant claimed that her mother had spent 5-6 months in Ghana at that time but as there was no full copy of her passport I could not be satisfied that this was the case. The sponsor had not returned to see her daughter since 1998. In any case, the fact remained that out of almost 18 years of her daughter's life, the sponsor had only taken care of her for 3½ years of it. · When the sponsor went to the UK she left her daughter with her mother, the appellant's grandmother. The appellant now said her grandmother was too old to look after her but did not mention if she was in ill-health. However, I was not satisfied that 3 months before her 18th birthday her grandmother was suddenly too old to take care of her. · There was no evidence of any contact between the appellant and the sponsor. No cards, letters, itemised phone bills or remittances. The appellant said that her mother only started writing to her when she was around 12 years old. She said she spoke to her on the telephone before she was 12 but it was evident that the amount of time the sponsor had had contact with her daughter was outweighed by the amount of time she had not been in contact with her. The appellant said her mother called her from her home so itemised telephone bills should have been submitted. The appellant said that her mother paid her school fees but there was no evidence of any remittances sent from the sponsor. This was further called into question when the appellant's father, in his interview, said that he paid for all the child's school fees, not her mother. The appellant's father also said that the grandmother paid for the appellant's day-to-day living expenses. He also gave her extra money sometimes when she was at school. It was evident that the mother had no financial responsibility for her daughter at all and did not pay towards her upkeep. · The sponsor had also paid very little part in the emotional upbringing of her daughter. The appellant had chosen her own schools and if she had a problem she talked to her grandmother. The appellant also visited her father at almost every school holiday before going to her grandmother. Taking all of the above factors into consideration I was not satisfied that the sponsor had had sole responsibility for her daughter. · I then considered whether there were serious and compelling family or other considerations which would make exclusion from the UK undesirable but I could not find any. The appellant was living with her grandmother who had been capable of looking after her for the majority of her life. She had her father in Ghana whom she saw on a regular basis and who supported her financially. She also had three Aunties on her mother's side of the family. The appellant had managed to live without her mother's guidance for almost all of her life. Now that she was a young woman it was not credible that she professed to need to join her mother after such a length of time without her. I then reviewed the application as a whole and accordingly refused the application in accordance with paragraph 197 of HC395."
[6]The Adjudicator had evidence from the sponsor and he concluded his determination as follows:
"7. Findings 7.1 I have had the opportunity of hearing evidence from the sponsor. I find her a genuine person and a reliable witness. I accept that what she told me is the truth. 7.2 I will now deal with the concerns of the respondent as laid down in pages 5 & 6 of her letter to the ICD of the 30.10.01. The ECO was not satisfied that the sponsor had spent 5-6 months in Ghana in 1998. I have seen a copy of the sponsor's passport from which it is clear that she spent 5½ months in Ghana in 1998. 7.3 I accept the evidence of the OWUSU Memorial Clinic that the appellant's grandmother is no longer well enough to take care of her granddaughter. I also note the grandmother is 71. 7.4 I accept that the sponsor and the appellant have kept in touch over the years and I have seen proof of this. 7.5 I do not agree that "the mother had no financial responsibility for her daughter at all and did not pay for her upkeep."
I find that the mother was responsible for the school fees and other expenses and I have seen the evidence of the money she has sent to the appellant's grandmother. 7.6 I accept the evidence of the sponsor about her daughter's relationship with her father. I note that the visits of her father did not extend beyond a night at the end of each school term. 7.7 In terms of 'sole responsibility' I find that the appellant's mother has had sole financial responsibility for her daughter. I find that she has sent money to her mother, Mrs Oforiwaa, for her daughter's upkeep since she arrived in the UK. I find that she has paid for her daughter's schooling. I am not swayed by the appellant's answer that she chose the school'. It is clear from Mrs Nakama's evidence that she wanted her daughter to go to a girl's boarding school and she was closely involved in the choice of school. 7.8 Clearly, the overall responsibility has been shared with the sponsor's mother. I now consider whether there are serious and compelling family considerations which would make exclusion from the UK undesirable. I find that there are. The appellant's relationship with her father is clearly limited. She sees him at the end of each school term for a night. The real relationship to consider is that with her grandmother. I find that the grandmother is not in good health and is now unable to look after the appellant. It was suggested by Mr Payne that she could live alone. I find that suggestion to be completely unrealistic in Ghana. The appellant is at an age when she needs the help and advice of her mother, probably more than at any time in her past. I note and accept that her mother wanted her to go to boarding school and she could not afford such a school in the UK. The appellant applied for settlement at the end of her time at boarding school I would have grave concerns for the emotional stability and safety of this appellant if she is no longer able to live with her grandmother. 7.9 On the basis of the evidence before me I find that, on the facts that were available at the date of the decision and on the balance of probabilities, there are serious and compelling family considerations which would make the appellant's exclusion from the UK undesirable. 8. Decision 8.1 The appellant has discharged the burden of proof upon her to the standard required in cases of this nature and I find that the decision of the respondent was not in accordance with the law and the relevant Immigration Rule. 8.2 Her appeal against refusal of a visa with a view to admission to the UK for settlement as the daughter of Mrs Beatrice Ankama is allowed. 9. Human Rights 9.1 I have also considered whether the decision would give rise to a breach of the appellant's European Human Rights under Article 8 of the European Convention on Human Rights (ECHR). 10. Article 8 10.1 Article 8 provides the qualified rights for respect for a private and family life, a person's home and correspondence. The burden of proof is upon the appellant to show that she has a family life and, that there is a reasonable likelihood there is, or would be, an interference with it. The appellant needs to show that it is not reasonable to expect her private life to be conducted elsewhere. 10.2 I find there would be an interference with the appellant's right to carry on her family life if she were not allowed to join her mother in the UK. I find it is not reasonable to expect her family life to be conducted elsewhere as she was only 17 at the time of the application and remains a young and vulnerable woman; her grandmother can no longer look after her and her relationship with her father is limited to a night at the end of each term. That interference is in accordance with the laws in as far as the Immigration Rules are concerned. The legitimate aims of the interference are the cost to the public purse if the appellant has to be supported by public funds. However, placed in the context of this case, I find to the relevant standard that the appellant is not likely to have recourse to public funds as her mother will support her (and the respondent has never disputed the ability of the sponsor to support and accommodate her daughter). I find, therefore, that the interference would not be proportionate to the legitimate aim to be achieved. 10.3 I have taken into account the case of Mahmood v SSHD (CA, 2001). I agree with Ms Boaitey's submission that this appeal is different from a 'Mahmood' situation. In this case the family exists already and the child does not have a choice. 11. Decision on the Human Rights Appeal 11.1 The appeal is allowed under Article 8 of the ECHR."[7]Mr Ekagha submitted that the sponsor had only visited the appellant for some five and a half months over a 14 year period. During the most formative years the appellant had been looked after by others. They had accomplished their task successfully. The adjudicator had erred in focusing on the sponsor's evidence. No weight had been given to the evidence of the father who had appeared at the interview. He said he had attributed to the school fees.[8]The appellant was of an age when she could take care of herself and did not need her grandmother's help. The father had accompanied the appellant to the interview and it was not right to say that just the mother had had sole responsibility for the appellant.[9]There would be no interference with her family life - her family life was in Ghana. The sponsor had only spent a very limited period of time in Ghana with the appellant since the age of three. If there was any interference such interference was justified in the interests of immigration control.[10]Counsel relied on her skeleton argument. The three aunts in Ghana would not be able to care for the appellant. The appellant's father lived in the city. When the appellant left boarding school she would just stay with her father for one night. It was a stopover on her way to her grandmother's. She was at boarding school and spent her holidays with her grandmother.[11]Asked whether it would not be inappropriate for the appellant to look after her grandmother, if she needed help, Counsel said that there are other children living in the neighbourhood who could look after the grandmother. It would not be right for the appellant to be a carer at the age of 18. She needed an education which her mother was willing to provide.[12]The Entry Clearance Officer was relying on both the sole responsibility and the serious and compelling family consideration points under paragraph 297. It appeared that the Adjudicator had found against the appellant so far as sole responsibility was concerned. Counsel submitted, however, that the Adjudicator had found in favour of the appellant so far as financial responsibility was concerned.[13]After the mother's illness, responsibility had been diluted. It was a compelling situation and every case was different. Reference was made to Ramos [1989] Imm AR 148. It was pointed out to Counsel that there had been no cross appeal from the finding of the Adjudicator that the responsibility had been shared. Although there was a university in Ghana, the appellant could not satisfactorily study there as it was necessary for parents to provide support in the way of food etc.[14]Mr Ekagha submitted that the picture of destitution was not warranted. The appellant had had a good standard of living and her father was at hand. The father said his daughter could live with him. The daughter was of university age. There were no insurmountable obstacles to her mother, who had indefinite leave to remain, visiting her if she so desired.[15]We have carefully considered all the material before us. We find there is force in Mr Ekagha's submission that the Adjudicator focussed unduly on the evidence of the sponsor. We note that there was no evidence of the claimed indisposition of the appellant's grandmother before the Entry Clearance Officer - the appellant said simply that the grandmother was quite old. The appellant's father accompanied the appellant to the interview. That in itself demonstrates that he had not abdicated responsibility for her. On top of that, the appellant used to stay with him on her way to her grandmother from her school. Furthermore, the appellant's father stated that he was happy for the appellant to live with him although she felt comfortable with the sponsor. The appellant's father stated that he paid for the school fees and that her grandmother paid for household things. In addition, he gave her money whilst she was at school.[16]The Adjudicator, in our reading of the determination, found against the appellant on the sole responsibility question. We were reminded of the decision of the Court of Appeal in Ramos which we have cited above. The Court of Appeal stated that the question was a broad question - financial support was not conclusive of sole responsibility. No doubt the Adjudicator had that in mind when he noted the financial support but found that the responsibility was shared and not sole. We agree with the Adjudicator that this case is not a case of sole responsibility. There has, as we have observed, been no cross appeal from that part of the decision.[17]The question under paragraph 297(i)(f) is whether there are serious and compelling family or other considerations which make the appellant's exclusion undesirable.[18]Firstly, we are not satisfied that this is a case where the father is not at hand and can support the appellant if required. After all, he said and we have no reason to doubt, despite the Adjudicator's observations, that he would be happy for the appellant to stay with him. The appellant as we have already mentioned, was accompanied by her father to the interview. Clearly he still takes an interest in her and her welfare. Secondly, the appellant is fast approaching her majority and there is no evidence that she is not in good health. The appellant's mother may have kept in contact but the fact is that she left the appellant at the age of three and did not revisit her until 1998 and then for some five months.[19]We agree with the criticisms made by the Entry Clearance Officer in the grounds of appeal that the Adjudicator's findings concerning the appellant's emotional stability and safety were speculative and not supported by the material before him. As Mr Ekagha submits, the picture of the appellant facing destitution is not a realistic one in the circumstances.[20]Turning to the question of family life, it is apparent from what we have said that the appellant has had a family life with her grandmother and father in Ghana. We accept that there are links between her and her mother. However, we repeat that the appellant was left in Ghana at the age of three and her mother did not revisit her until 1998 - a comparatively short period in the circumstances. As Mr Ekagha observes, the sponsor has indefinite leave to remain and there are no obstacles to her visiting the appellant in Ghana. There are no obstacles, indeed, to the appellant making an application to come to the United Kingdom to study in this country, should she wish to do so. There are university facilities in Ghana according to the background material lodged by the respondent. The University of Ghana enrolled 852 women and 2,226 men in the 1998/1998 academic year. In May 2000 an initiative was launched to establish the country's first all women's university (see paragraph 4.40 of the April 2002 Home Office Country Assessment). Miss Boaitey submits that this would be an unsatisfactory outcome for the appellant as it is necessary to have the support of a family in order to exist at university. However, we find that the appellant has just that. She has her father who can provide support and who has, on his account, supported her in the past.[21]There is also the question of the appellant's links to her grandmother. We asked Counsel whether it was not unreasonable for the appellant to reciprocate to some extent and support her grandmother given that she had been supported by her over a number of years. Counsel said that there were other people in the village who would support her grandmother and that it would not be right for the appellant to have to live in a village - she had her education to consider.[22]Looking at all the material before us in the round, we do not find that the exclusion of the appellant from the United Kingdom would be a disproportionate interference with her family life. We have borne in mind in reaching this decision the European jurisprudence helpfully distilled in paragraph 55 of Mahmood [2001] Imm AR 229 at 249-250.[23]In reaching our decision in this case, we are conscious that we are to some degree interfering with the Adjudicator's findings. This the Tribunal is, for obvious reasons, loathe to do where the Adjudicator has had the opportunity to hear oral evidence. However, in this case we are firmly of the view that the Adjudicator's findings are not sustainable. He focused unduly on the evidence of the sponsor to the exclusion of other material before him.[24]We affirm, however, his findings on sole responsibility. We disagree with his finding that there are serious and compelling family considerations which would make the appellant's exclusion from the UK undesirable. We also disagree with his finding that her exclusion would be contrary to the provisions of Article 8 of the European Convention on Human Rights.[25]For the reasons we have given, the appeal of the Entry Clearance Officer is allowed. G WARR Vice President

Cited in 2 later judgments