Buydov v Entry Clearance Officer, Moscow

Under paragraph 301(1)(b) of the Immigration Rules, sole responsibility for a child’s upbringing is a broad question of fact. In a two-parent case, the usual starting point is that both parents have responsibility, but this is not a legal presumption or an exceptionality test. The primary carer or home-provider does not necessarily have sole responsibility, and the other parent need not have wholly abdicated responsibility. Legal responsibility, actual conduct, direction and control, contact, and financial or educational involvement may all be relevant. Immigration guidance cannot replace the objective construction of the Rules. The appeal was dismissed because the Upper Tribunal had applied the correct approach to the facts.

The appellant, a Russian national who was under 18 when he applied, sought entry clearance under paragraph 301(1)(b) of the Immigration Rules to join his mother, who had limited leave to remain with a view to settlement. His parents were divorced. An agreement gave the mother guardianship and wording indicating sole responsibility, but the father retained contact, maintenance obligations, an interest in education and some practical responsibility.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal re-determined it on the accepted factual findings and also dismissed it, concluding that the father retained some responsibility. The second appeal alleged that the Upper Tribunal had required parental abdication, failed to apply published guidance and failed to interpret sole responsibility correctly. The central issue was whether those matters disclosed an error of law.

Appeal dismissed. Lord Justice Hughes gave the leading judgment. Mr Justice David Richards and Lord Justice Ward agreed.

1. Factual enquiry. Paragraph 301(1)(b) requires a broad assessment of whether the sponsoring parent has had sole responsibility for the child’s upbringing. The enquiry concerns the total pattern of responsibility. Relevant matters may include what has actually been done, by whom, whether it was done under the sponsoring parent’s direction, legal responsibility, contact and involvement in important decisions. Legal responsibility is relevant but not conclusive. This approach was established in Ramos v Immigration Appeal Tribunal [1989] Imm AR 148, Nmaju v Entry Clearance Officer [2001] INLR 26 and Cenir v Entry clearance Officer [2003] EWCA Civ 572.
2. Two-parent cases. The distinction identified in TD [2006] UKIAT 00049 between one-parent and two-parent cases was valid, but it did not create a presumption of law or an independent test of exceptionality. In a two-parent case, both parents will usually begin as having responsibility. A primary carer or home-provider does not therefore necessarily have sole responsibility, and the other parent need not have wholly abdicated responsibility. The father’s continuing interest in the appellant’s education, consultation with the mother, maintenance and willingness to provide a home entitled the Upper Tribunal to uphold the finding that the mother lacked sole responsibility.
3. Published guidance. The Immigration Directorate Instructions could not alter the meaning of the Rules. Under paragraph 1(3) of Schedule 2 to the Immigration Act 1971, they had to remain consistent with the Rules. Following Mahad v Entry Clearance Officer [2009] UKSC 16, the Rules had to be construed objectively from their wording, rather than from policy or the Instructions. The Instructions were also internally inconsistent. A residence order could be evidence of sole responsibility but was not conclusive, and a requirement that the sponsoring parent retain care and control was inconsistent with the established cases.
4. Appellate restraint. The Upper Tribunal did not need to provide a general exegesis of sole responsibility. It had to direct itself according to the established law and apply that law to the facts. It did so, and its conclusion was not perverse. No error of law was shown, so the second appeal was dismissed.

• Court of Appeal (Civil Division) — In [2012] EWCA Civ 1739, the second appeal was dismissed.
• Upper Tribunal (Asylum and Immigration Chamber) — Re-determined the appeal using the First-tier Tribunal’s accepted findings, supplemented by limited additional material, and dismissed it.
• First-tier Tribunal — Dismissed the appellant’s challenge to the refusal of entry clearance, finding that the mother had not had sole responsibility.