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Children get successfully sponsored

Our client was the brother-in-law and Sponsor for 3 minor children living abroad. The eldest of the 3 children suffers from both mental and physical disabilities.

The children’s mother passed away days after giving birth to the youngest of the children in 2011 and were thereafter raised by their father. However, their father also passed away unexpectantly in September 2014. Consequently, they were raised by their eldest sister and the Sponsor abroad.

The eldest sister became pregnant in October 2014 and the Sponsor initially returned to the United Kingdom in order to seek employment (as his employment contract had reached its term) in order to continue to financially support the family. The eldest sister entered the United Kingdom in February 2017.

An application for the 3 children to join the Sponsor and their eldest sister in the United Kingdom was submitted under Paragraph 297 of the Immigration Rules and in particular on the basis of-

One parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which makes exclusions of the child undesirable and suitable arrangements have been made for the child’s care

However, this application was refused by the Entry Clearance Officer (‘ECO’) on 15 January 2019. The ECO relied on the following reasons in order to justify the refusal-

  1. That the children could continue to live alone without the Sponsor and their eldest sister and therefore there did not exist any serious and compelling circumstances.
  2. The eldest sister was not a British national and therefore was not eligible to be a Sponsor for the children’s application under Paragraph 297 of the Immigration Rules.

Reiss Edwards represented the children (through the Sponsor) in their appeal. The Grounds of Appeal sought to plead the following-

  1. That the children’s brother-in-law was entitled to be the Sponsor as he fell within the definition of a ‘relative’. The Immigration Rules at Paragraph 6, did not seek to provide a legal definition to the term Relative and as a consequence it was pleaded that an ordinary meaning should be applied. It therefore followed that Paragraph 297 of the Immigration Rules was in fact the correct legal provisions to be applied to the children’s application.
  2. The family remained a unit notwithstanding the fact that the Sponsor and their eldest sister had moved to the United Kingdom.
  3. That the children’s circumstances, made no better by the eldest child’s physical and mental disabilities were in fact sufficient to amount to serious and compelling circumstances.

Supporting documents including inter alia: detailed statements from the Sponsor and their eldest sister, evidence of the ongoing support provided between the Sponsor/their eldest sister and the children and witness evidence was adduced to evidence the submissions made.

Outcome

The matter proceeded to the First-Tier Tribunal (Immigration and Asylum Chamber) (‘FTT’) and was heard by Judge of the FTT Black on 23 August 2019. The children’s appeal was duly allowed by way of a Determination promulgated on 11 September 2019.

The preliminary issue to this appeal was whether or not the Sponsor, as a brother-in-law fell within the definition of a ‘Relative’ and therefore entitled to be a Sponsor in the first instance.

The Judge accepted Reiss Edwards’ submission that no legal definition was provided for the term Relative. The Judge therefore accepted that a brother-in-law did fall within the ordinary definition of a relative for the purpose of an application made under paragraph 297 of the Immigration Rules.

Thereafter, it was accepted that the family unit remained intact and had not been dissolved simply by virtue of the Sponsor and the eldest sister relocating to the United Kingdom. It was further accepted that the children were living alone but under the guidance of the Sponsor and their eldest sister. These reasons along with the fact that the eldest child’s disability meant that the circumstances were compelling and undesirable.

Achievements

There are a number of findings in this appeal, that Reiss Edwards is proud of-

  1. The appeal confirmed that the definition of the term Relative should not be construed as being the same as a ‘Family Member’ which is defined by the Immigration Rules.
  2. Physical separation is not an indication that an independent family unit has been established. This is important as the Home Office/ECO tends to prefer to maintain the status quo in relation to applications involving children.

With the help of our Immigration solicitors, the children have since been granted settlement visas and are now preparing to relocate to the United Kingdom where they can be reunited with their de facto parents and enjoy the stability and care that all children deserve.

 

 

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