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The Meaning of ‘Sole Responsibility’ - Is TD (Yemen) Still Fit For Purpose?

The Requirement to prove ‘sole responsibility’ on the part of a Sponsor in the UK for a child applying to enter the UK appears in Part 8 of the Rules (where the parent is present and settled) and under Appendix FM (where the parent has limited leave as a partner or parent).

The leading authority on the meaning of sole responsibility is TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049. In this case, heard over 10 years ago, the Upper Tribunal were considering an older version of the rules, but the content of the Rules is materially the same as now appears in both Part 8 and Appendix FM. The rule is interpreted very strictly; the test is “whether the parent has continuing control and direction over the child’s upbringing, including making all the important decisions in the child’s life”. It is also noted by the Tribunal that, “where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have “sole responsibility””.

At paragraph 48, Upper Tribunal Judge Grubb (sitting with judged Ockelton and Baker) provided an explanation of the policy considerations underlying the requirement of ‘sole responsibility’ as follows:

“Paragraph 297(i)(e) has the potential to split up a family and separate a child from one of its parents abroad who is involved in its life. It is only the requirement of “sole responsibility” which acts as a control mechanism. It would, in our view, usually run counter to the policy of family unity to admit a child for settlement where the parent abroad is caring for the child and involved in its upbringing, unless the requirements of paragraph 297(i)(f) are met. This must be borne in mind when interpreting and applying, the test of “sole responsibility. The requirements of that latter sub-paragraph are onerous requiring “serious and compelling family or other considerations which make exclusion of the child undesirable”. Hence, the family will be split up only because the parent abroad has no involvement for the child’s upbringing… or, where there is involvement, because all the circumstances (Including the child’s interests) require such a result.”

This is the only explanation of the policy considerations. Notably, it does not address at all a situation where the person who potentially shares responsibility is not the other parent but another relative of the child. This is of significance, because much of the determination is addressed to considering cases where responsibility is potentially shared with someone who is not a parent.

The effect of the very strict requirement of ‘sole responsibility’ can have a variety of consequences which are unlikely to be in the best interest of the child.

One example, is that the child must remain in the care of a grandparent or aunt where a parent in the UK is willing and able to look after her here. This is at odds with the general presumption (often repeated by the Upper tribunal) that it is in the best interests of a child to be with his/her parents.

Another example is where a family comprising of one or two British parents with non-British children decide that one British parent will return to the UK with a child while the other parent continues to live abroad (perhaps looking after a sick relative, or for better employment opportunities). The wishes of both parents (considering the child’s best interests) that the child travel with a British parent to the UK may be frustrated by the ‘sole responsibility’ rule.

Perhaps more commonly, this issue will arise in circumstances where a divorced parent re-marries a British national and wishes to travel to the UK as a partner under Appendix FM. If this parent has allowed the child to have a relationship with his/her other parent and has included him in decision making in respect of the child, the parents will be considered to have shared responsibility and the child may be refused entry clearance on this basis.

A very similar scenario is frequently considered by the Family Court in the context of applications by one parent to leave the UK with a child, rather than to enter the UK with a child. One might imagine that, in view of the symmetry of this cases, the considerations relevant to the decision in the Immigration Tribunal and Family Court would be very similar.

In both cases the ‘best interests of the child’ are a central consideration. By virtue of section 1 of the Children Act, the best interests of the child are a paramount consideration in the Family Court context. In the Immigration context, although Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom the ‘spirit of the statutory guidance should be applied (T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC)). The Guidance referred to is “Every Child Matters, Change for Children”.

Theoretically, in both cases, the wishes and feelings of the child are an important consideration but, while the Family Court has mechanisms for discovering the wishes and feelings of a child in family proceedings, through a trained CAFCASS officer, there is no equivalent mechanism to which entry clearance officers or Immigration Judges can have recourse.

The Court of Appeal in Payne v Payne [2001] 1 FLR 1052 provided guidance as to factors to be considered in the Family Law context where one parent is the primary carer of the child (it has since been repeatedly emphasised by the Court of Appeal that this is only guidance and that the only principal enunciated in Payne is that the welfare of the child is paramount). Thorpe LJ set out key factors at paragraph 40. These include the motivations of both the parent proposing to leave the UK and those of the parent resisting removal; whether the parent proposing removal has made practical proposals both well researched and investigated; the detriment to the child and his future relationship with the parent left behind, if the application were granted; the extent to which that detriment would be offset by extension of the child’s relationships with the maternal family and homeland; and the impact on the parent making the application either as a single parent, or as a newly married person in case of a refusal.

The interpretation by the Upper Tribunal of the Immigration Rules tend to indicate that if the child has contact with his other parent, the parent seeking to bring him to the UK must not have ‘sole responsibility’ and that the application should therefore be refused. There is no scope for considering whether the parent seeking to bring the child to the UK would promote contact with the other parent by telephone, Skype and frequent visits, for example. There is no consideration as to whether the nature of the relationship the child has with the other parent will be altered at all by moving to the UK much less what the extent of any detriment would be.

The Immigration Rules do not consider whether any such detriment would be offset by strengthening familial relationships in the UK with British family members. No consideration is given to the potential benefit to a child of being brought up by a parent and stepparent in the UK.

Finally, the Immigration Rules do not consider the impact on the parent who wishes to come to the UK of being prevented from doing so with his/her child. The Rules may frequently give rise to a situation where a parent is placed into the very unfortunate position of having to choose between remaining in the country of residence of her child and coming to the UK with a new partner. Importantly, the Rules fail to recognise that the stress this may place on a parent will adversely impact the child. A parent who has been a single parent in her home country but will have the benefit of support of a new partner in the UK may well be able to provide better care for the child if permitted to move to the UK with the child. The child may also then have the benefit of being brought up in a stable family unit which may not be an option in the child’s country of residence.

The very harsh impact of the ‘sole responsibility’ test is potentially mitigated somewhat by the alternative option to show ‘serious and compelling family or other considerations which make the exclusion of the child undesirable…” It was held in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88(IAC) that the assessment of whether this test is met will inevitably involve an assessment of what the child’s welfare and best interests require.

However, it is arguable that ‘serious and compelling’ imposes an unduly high threshold and that beginning with a consideration as to whether the test of ‘sole responsibility’ is met is fundamentally incompatible with promoting the best interests of the child. It is arguable that the considerations applicable in an application to the Family Court to remove a child from the UK are just as relevant to an application for leave to enter the UK with/to join a parent under Part 8 or Appendix FM.

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