There was a client whose application was refused by British Embassy in Manila, Philippines because the Entry Clearance Officer (ECO) saw that a child applying for a visa to join mother in the UK still sees his dad in the Philippines.

Another case, at a divorce case proceedings, a Judge asked on the letter to the petitioner: “May I see the communications on Facebook.”

Nang dahil sa Facebook, na refuse ang bata dahil nagkikita pa sila ng tatay nya…

Let’s go back at the interview of the child in June 2014:

ECO: When did you last see your dad?

Child: I have never seen my dad since I was born.

ECO: Has your dad call you last Christmas?

Child: Yes. He called to greet me: “Merry Christmas.”

ECO: Did he take you for a Jollibee?

Child: Yes. We went to the mall.

The application was refused soon after because it is obvious that the child has been ‘coached’ by the mother not to tell the truth.

Upon receiving the Notice of Decision from the British Embassy, it says: “On your Facebook account, we confirmed that you and your father has been seeing regularly and it is obvious that he is involved in your upbringing. You stated that you have never seen your father ever since you were born but this is not correct as the photographs show on your Facebook page. On the balance of probabilities, I am refusing your application because I do not believe that your mother is exercising sole responsibility in your upbringing.”

All wise lawyers know what sole responsibility is. What does sole responsibility mean?

The leading case of TD (Paragraph 297(i) (e): “sole responsibility”) Yemen [2006] UKAIT 00049 sets out useful parameters for the tribunal. The term is not to be interpreted literally (TD). With one parent being in the UK it is obvious that de facto responsibility for feeding, clothing and sending the child to school must be shared with others; see also Emmanuel v SSHD [1972] Imm AR 69. The tribunal must consider the facts of each case and ask itself if the sponsoring parent has ‘continuing control and direction’ over the child’s life and ‘is making the important decisions in the child’s life’ (TD). A tribunal will take into account a range of practical matters in determining who exercises control and direction. Examples include financial support (and proof of the same); the child’s schooling arrangements; health and medical provisions; the number of times the sponsor has visited the child and the length of separation, to name but a few. Financial support alone is not sufficient to establish sole responsibility, however absence of the same could be fatal.

On this particular case, it is important for the sponsor (also known as petitioner) must be the major decision maker towards the life of the child particularly health, education and religion. There are documentary evidence to prove these and good lawyers know how this crucial point on ‘sole responsibility’ is being addressed.

In Ramos v IAT [1989] Imm AR 148, a mother claimed that she had sole responsibility for her daughter who was living with her grandmother in the Philippines. The child’s father had no contact with the child. The Court of Appeal queried the lack of contact between mother and child and upheld the finding that responsibility was shared between the mother, grandmother and potentially other adults living with the child. It found that a carer assisting the child with daily tasks like bathing and getting to school do not extinguish sole responsibility, however taking bigger decisions might suggest shared responsibility.

The concept of ‘sole responsibility’ was defined as being one of control, decision-making and obligation towards the child which must lie exclusively with one parent.

In Sloley v ECO, Kingston [1973] Imm AR 54 the tribunal relied on correspondence between the child’s mother in the UK and the grandmother still caring for the child in Jamaica, to find that the mother did have sole responsibility because her letters were directing care of the child and approving holidays. The court appeared to be assessing who alone was making significant decisions in the child’s life. Today, letters directing a grandmother abroad may be viewed with some suspicion where all other conversations appear to take place over Skype, but the tribunal will still look to practical matters such as contact and correspondence to determine who is exercising ‘control and direction’.

The material contained in this article is intended to provide a general guide to the subject matter. Readers should not act on the basis of the information without taking professional advice.