Nmaju & Ors v Entry Clearance Officer

Under rule 297(i)(e) of the Immigration Rules (HC 395), “sole responsibility” is a broad, fact-sensitive question. Legal responsibility is relevant but not conclusive. The court must examine what has actually been done for the child, by whom, and under whose direction and control.

Time is relevant only as part of the overall factual assessment. The Rules impose no minimum period during which sole responsibility must have been exercised. A tribunal cannot reject an otherwise established claim solely because the parent assumed sole responsibility only shortly before the application or decision.

Three children appealed from decisions refusing them entry clearance for settlement. Their mother was settled in the United Kingdom. The Immigration Appeal Tribunal accepted that she had sole responsibility for their upbringing during the period immediately preceding the refusal, but held that approximately two and a half months was insufficient.

The appeal concerned the proper construction of rule 297(i)(e) of the Immigration Rules (HC 395), particularly whether the Rules required sole responsibility to have been exercised for a minimum or substantial period.

1. Appeal allowed. The Immigration Appeal Tribunal had found that the mother had sole responsibility for the children’s upbringing, but treated the short duration of that responsibility as independently disqualifying. That approach was an error of law.
2. The phrase “sole responsibility” requires a broad assessment of the total factual pattern. Legal responsibility under the relevant legal system is relevant but not conclusive. The decision-maker must consider what has actually been done in relation to the child, by whom, and whether it was done under the direction of the settled parent. Day-to-day care by another person does not necessarily prevent the settled parent from having sole responsibility.
3. The Rules contain no express minimum period for which sole responsibility must have been exercised. The period cannot be treated as a conclusive factor in isolation. It may be relevant to whether the parent has genuinely assumed sole responsibility rather than merely responding temporarily to an emergency, but the question remains whether the parent has had sole responsibility for the child’s upbringing.
4. The court approved the general approach in Suzara Ramos v Immigration Appeal Tribunal [1989] Imm AR 148. It regarded R v Immigration Appeal Tribunal ex parte Fojor Uddin and Nur Uddin [1986] Imm AR 203 and R v Immigration Appeal Tribunal ex parte Sajid Mahmood [1988] Imm AR 121 as rightly decided, but deprecated treating the expression “a not insubstantial period” in Uddin as if it were incorporated into the Rules.
5. A declaration was made that the three appellants qualified for admission for settlement. The appeal was allowed with costs, subject to legal aid assessment, and permission to appeal to the House of Lords was granted on the stated undertaking.

• Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal allowed; declaration made that the appellants qualified for admission for settlement.
• Immigration Appeal Tribunal: appeals dismissed after finding that approximately two and a half months of sole responsibility was insufficient.
• Adjudicator: appeals dismissed in February 1998.