The appeal went before the First Tier Tribunal at Hatton Cross on the 7^th June 2024. In short, the appellant entered the UK as a visitor and filed an application for indefinite leave to remain, as one of the parents was in the UK and settled. 

Honourable Judge Quinn presided over the legal matter and both the appellant & sponsor attended to give evidence. The Home Office presented the legal matter and disputed the appeal on paragraph 298 of the immigration rules, including Article 8 ECHR claim. Further grounds were set out to state that the appellant could not meet the threshold of “very significant obstacles”. 

The Hon Immigration Judge considered the evidences, and observed both the issue in hand, including the test to meet the sole parental responsibility. The legal issues on the sole parental responsibility can be found here https://www.gov.uk/parental-rights-responsibilities/apply-for-parental-responsibility. 

In considering the evidences, the Hon Immigration Judge looked at the Home Office defence on the best interest of the child. It was put forward by ICS Legal to the Judge about the country reports and other expert evidences, to demonstrate that the sponsor, does hold sole parental responsibility. It was not possible to demonstrate exclusive sole rights, but that the sponsor held what can meet the legal test of “sole parental responsibility”. 

Notably, the Home Office argument sat on the fact that the appellant entered the UK as a visitor and that an application for entry clearance should be applied. It was pleasing to hear given the appellant’s integration in the UK, found the Judge in favour of the appellant and made the following statement:

“It was true that the Appellant could return to Malawi and make an application to remain in the UK from Malawi but in my view that would not serve any useful purpose. In my view it was more likely than not that his application would be granted and it would put the Appellant through a very difficult and unpleasant time in Malawi while his application was considered. It would be disproportionate toexpect the Appellant to do that.”

Given the legal complexity of the sole parental responsibility, the Hon Immigration Judge found that the appellant application if applied outside of the UK, is less likely to succeed and the matter is likely re-appear before the First Tier Tribunal. 

The evidences put forward by the appellant and the sponsor was a key element of the appeal. 

“The Appellant's Sponsor was behaving very responsibly by maintaining him and by maintaining his other children. In my view there was a strong bond between the Appellant and his father that could only be damaged if the Appellant was to be returned to Malawi.”

The appellant appeal was allowed both under the immigration rules and Article 8 ECHR. Paragraph 298 of the immigration rules plays a crucial part to a dependent child applying to remain with one of their settled parents.