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Sole Responsibility and Right to Family Life

In November 2022, our Vikas Sharma appeared before the First-tier Tribunal. Under Paragraph 297 of the immigration rules, the appellant applied for indefinite leave to enter, and the appeal was against the refusal of this application. According to his application, his father, who lives in the UK, controlled and directed his upbringing. In this case, the applicant was living with his mother in his home country, so only in exceptional circumstances could his father have taken sole responsibility. A refusal was issued because the entry clearance officer did not agree that the father in the UK had sole responsibility for the applicant while he resided with his mother in India. The mother of the applicant has been taking English exams since at least 2017 to meet the language requirement of the partner route under Appendix FM. However, she has failed at least ten times. Considering he was about to turn 18 years old; he wasn't eligible to make an application as her mother's dependent under Appendix FM. Hence, he had made an application under Paragraph 297 of the immigration rules before he turned 18 years of age. In the months following the refusal of his application, his mother was diagnosed with dementia. As his appeal was awaiting a hearing before the First-tier Tribunal, the mother was granted an exemption from the English language requirement and her application was approved under Appendix FM. As the applicant was living with his mother in his home country, the First-tier Tribunal judge did not agree with the argument that the applicant's sole responsibility lay with his father. However, the judge accepted that there would be a disproportionate interference with the right to family life and allowed the appeal. Vikas’s argument that the applicant’s father was controlling and directing his upbringing because his mother had dementia was not accepted by the judge because the mother’s dementia was diagnosed after his application was refused. Vikas had relied upon TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049. Nevertheless, the judge accepted the argument that the refusal breached the right to family life granted under article 8 of the ECHR as the applicant and his mother had lived all their lives together and recent turning over 18 did not make the applicant independent of his mother. The appeal was allowed on the 19th of December 2022.