When an uncle assumes the role of the parents
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We have assisted an Appellant, a national of Bangladesh, who was born in April 2005 and who appealed the Home Office decision to refuse his child dependent visa application to join his British uncle in the UK under paragraph 297 of the Immigration Rules. The issues for determination by the Court in this appeal were at paragraph 297 “sole responsibility” and whether in the particular circumstances the Appellant’s uncle has sole responsibility for the Appellant. Also the Court had to determine whether there were serious and compelling considerations which make the exclusion of the Appellant undesirable and suitable arrangements have been made for his care in the UK. In the alternative whether there are compelling circumstances such that the refusal of entry clearance amounts to disproportionate interference with the Appellant and his family’s Article 8 rights outside the rules. The Appellant is an 18 year old however he was 17 years old at the time that the application was made for him. His uncle is the father’s eldest brother and a paternal uncle. The uncle was naturalised as a British citizen and lives in the UK. In 2009 the Appellant’s father had an accident and sustained injuries which affected his mobility and reduced his ability to work and earn a living. Since 2009 the Appellant has been supported by his uncle who also made important decisions about his upbringing. The Appellant was estranged from his mother due to her mental health issues and the health of both parents have been deteriorating constantly. The sponsor chose a school for the Appellant and supported him in choosing the subjects; Paid his fees and maintained contact with the school. When he was 17 the uncle made an application for him to join him in the UK. Legal advice and assistance was not obtained in relation to the application. The application was refused because the entry clearance was not satisfied that the uncle had sole responsibility for the Appellant and asserted that financial support can continue to be provided by the uncle from the UK, whilst the Appellant remains in Bangladesh. The entry clearance officer was also not satisfied that there are serious and compelling family and other considerations which makes his exclusion undesirable and that suitable arrangements have been made for his care. We have submitted that the Appellant satisfies the Immigration Rules.
We have been delighted to learn that the appeal has been successful. The immigration judge stated that he has looked at every aspect of the evidence and he found that significant documentary evidence was before him, particularly in detailed witness statements and letters from educational providers in Bangladesh. It was accepted that the sponsor is able to make provisions with respect to accommodation and continuing financial support for the Appellant and that although the Appellant is now an adult the application was made whilst he was still a minor and therefore he is entitled to be considered in those terms as he makes the findings in this appeal. The fact that the Appellant became an adult during the proceedings is of little relevance. The immigration judge accepted that the crux of the appeal is that the Respondent (the Home Office), does not accept that the sponsor has sole responsibility for the Appellant within the terms of sub paragraph 297 of the Immigration Rules. On the very unusual circumstances in this appeal, the judge found that the Home Office namely the Respondent view is incorrect. The immigration judge found that the evidence provided was credible as to the overall account which respected a broken relationship between the Appellant and his birth mother. The sad circumstances relating to the father are also highly relevant in the assessment of fact and it was accepted that his injuries were life changing and that the overall circumstances of the Appellant were adversely affected by the consequences of the father’s accident. He accepted that the sponsor effectively stepped in to assist the family in Bangladesh by taking the Appellant “under his wing” and that the Appellant received support of the sponsor since 2009 and the sponsor has discharged the role of a single parent in caring for the Appellant and in fully assuming responsibility for him. In the unusual circumstances he found that the birth parents stepped aside. The appeal was allowed.