We were instructed in early 2010 by a British national whose fiancée and fiancée’s son had been refused entry clearance to join our client in the UK. The British Embassy has refused his fiancée’s application on the grounds of her previous Immigration history, namely that she overstayed her visa, and due to the lack of documentation submitted to demonstrate that the couple were in a genuine relationship. The child’s application was refused on the grounds that the Embassy was not satisfied our client’s fiancée, his mother, had sole responsibility of her son.
An appeal was lodged against the decision and heard in the First Tier Tribunal in April 2010. The Immigration Judge allowed our client’s fiancée’s appeal however, dismissed the appeal in relation to her son. The Judge concluded that our client’s mother did not have sole responsibility over her son, namely that she was responsible for the day-to-day decisions regarding his upbringing and provided financial support.
We advised our client to appeal against the decision based on an error of law. It was clear from the Immigration Judge’s reasons that he had failed to consider all of the evidence before him; failed to provide reasons for his rejection of the oral and documentary evidence, and failed to consider Article 8 (right to private and family life). The Upper Tier Tribunal accepted the application to appeal against the decision and a reconsideration hearing took place today. We were very pleased to learn that the Senior Immigration Judge accepted our argument and the appeal was allowed on the day in our client’s favour. The result means that our client, his wife (whom he had married after her successful appeal) and her son will be able to live in the UK together as a family unit.
Sole responsibility can be very difficult to prove in entry clearance applications. If a non-EEA national wants to bring their child to the UK to join her/him and their British spouse, documents must be submitted to demonstrate that they make the important decisions in the upbringing of the child. This is particularly the case where the other parent is still alive; it is simply not enough to prove that you are parent of the child and the other parent has consented to the child residing in the UK. Due to the complexity of applications of this nature, many applications are refused and end up in the Tribunal to argue before an Immigration Judge. As with any appeal, thorough preparation for a reconsideration hearing is absolutely key to a successful outcome.