United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-001671
	First-tier Tribunal No: HU/02008/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

and

UPPER TRIBUNAL JUDGE MANDALIA

 

Between

 

MK

(ANONYMITY DIRECTION MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

 

Representation

For the Appellant: Ms Smeaton, instructed by SJK Solicitors

For the Respondent: Ms E Blackburn Senior Home Office Presenting Officer

 

 

Heard at Edinburgh on 28 November 2024

Decision and Reasons

As the appellant is a child, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Introduction

1.             The appellant was born on 1 September 2018 and is a national of Uganda. On 23 June 2022, an application was made on his behalf for entry clearance to the UK with a view to settlement as an adopted child.

2.             The application was refused by the respondent for reasons set out in a decision dated 23 November 2022. The appellant's appeal against that decision was dismissed by First-tier Tribunal ("FtT") Judge Doyle ("the judge") for reasons set out in a decision promulgated on 30 November 2023.

The Decision of the FtT

3.             The judge said at paragraph [7] that the question in this appeal is whether the refusal breaches the appellant's right to respect for private and family life under Article 8 ECHR. The appellant's claim is summarised at paragraph [8] of the decision.

"The Appellant says that he meets the requirements of paragraph 309A of the immigration rules. The appellant's parents adopted him in Uganda. The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013 prevents that adoption from being recognised in UK law, but the appellant says that he is the child of a de facto adoption. The appellant says that the respondent's decision has unjustifiably harsh consequences because it separates him from his parents, who are in the UK. The appellant says that the respondent's decision breaches the right to respect for family life."

4.             The judge set out his findings of fact at paragraph [10] of the decision and we do not repeat them in this decision. It is sufficient to note that the judge accepted the appellant's mother died within three days of delivering the appellant and that the identity of the appellant's father is not known. He found that on 15 February 2019 the Chief Magistrates Court of the Republic of Uganda recognised the adoptive mother as the mother of the appellant and declared that her partner, the adoptive father, was in loco parentis to the appellant. At paragraph [11] of the decision the judge noted the claim made on behalf of the appellant that there has been a de facto adoption. He referred to paragraph 309A of the immigration rules and at paragraphs [14] to [16] the judge set out his reasons for the conclusion that a de facto adoption has not taken place:

"14. In September 2018, the appellant went to live with the sponsor's wife. The sponsor's wife left the appellant in Uganda on 14 December 2020.

15. From the evidence presented, it is not clear whether or not the sponsor has ever lived with the appellant in Uganda. In his own witness statement, the sponsor simply says that he came to the UK in 2006. On 12 May 2021, the sponsor was granted indefinite leave to remain in the UK under appendix EU. He must, therefore, have been living in the UK between the spring of 2017 and May 2021. That evidence indicates that the sponsor has never lived with the appellant because the appellant was born in Uganda in 2018.

16 . The evidence indicates that the appellant's adoptive parents did not live together for 18 months abroad, nor did they live with the appellant for 12 months immediately preceding the application."

5.             At paragraph [18], the judge recorded that he was asked to find that paragraph 309B of the immigration rules is irrational and breaches Article 8. The judge went on to refer to the decision of the Court of Appeal in R (AK & Others) v Entry Clearance Officer (Islamabad) & Anor [2021] EWCA Civ 1038 but said there has been no judicial finding that either paragraphs 309A or 309B of the immigration rules are irrational.

6.             The judge went on to address the Article 8 claim outside the immigration rules at paragraphs [22] to [37] of the decision. He accepted family life exists and said that a "temporary, informal, foster care arrangement has been entered into for the appellant." The judge noted at paragraph [25] that "The appellant is a five-year-old child. His interests and welfare are a primary consideration." The judge referred to the evidence of the appellant's adoptive parents that they have known since 2020 that the Ugandan adoption order is not recognised in the UK and that his adoptive mother had nevertheless left the appellant in Uganda and come to live in the UK. The judge noted their evidence that they have "recently instructed solicitors to petition either for adoption in the UK or for UK judicial recognition of the Ugandan adoption order. The judge said, at paragraphs [28] to [35]:

"28. There is no reliable evidence that the arrangements for the appellant in Uganda are unsatisfactory. The appellant is adequately maintained and accommodated and has access to education, healthcare. He has regular visits from his adoptive mother.

29. Separation must be unpleasant for the appellant's adoptive parents, but the weight of evidence indicates that the sponsor has never lived with the appellant. The same evidence tells me that the sponsor's wife fulfils the role of mother to the appellant but chose to do so from Scotland (with all the inconvenience that that must bring) three years ago.

30. The route to success for the reunification of this family is to pursue an adoption which is recognised in the UK so that the appellant can join his adoptive parents and siblings. To do anything else is to cut corners and avoid the background checks made to ensure the safety and welfare of a child in adoptions recognised in the UK.

31. Because the adoption procedure recognised in the UK only commenced one month ago, both the appellant's application and this appeal are premature.

32. Formalisation of adoption before reunification will ensure that the appellant's welfare and best interests are properly served. To take any other course of action is to act in haste and sidestep the background checks designed to ensure and promote a child's welfare and safety, which cannot be in the interests of the child.

33. The appellant is well cared for. He is maintained and accommodated through the efforts of his adoptive parents and their friends in Uganda. Through their efforts he has access to education and healthcare.

34. There are no concerns for the welfare of this child appellant in his current circumstances. The appellant's decision cannot, therefore, be a disproportionate interference with family life creating unjustifiably harsh consequences.

35. I am mindful of Section 55 of the Borders, Citizenship, and Immigration Act 2009. On the facts as I find them to be there, there are neither exceptional nor unduly harsh consequences flowing from the respondent's decision. The respondent's decision is not a disproportionate breach of the right to respect for family life."

The Grounds of Appeal to the Upper Tribunal

7.             The appellant claims that in reaching his decision the judge failed to consider the particular facts of the case and why the appellant could not comply with the rules, vis-à-vis the irrationality of the rules themselves, as suggested by the Court of Appeal in AK & Ors v The Entry Clearance Office (Islamabad) & Anor [2021] EWCA Civ 1038, and by the Supreme Court in AA Somalia v Entry Clearance Officer [2014] 1 WLR 43.

8.             In summary, there are two grounds of appeal.

i)               The adoptive parents were bound by the conditions of their respective visas. The appellant's adoptive father is a Dutch citizen with settled status. His adoptive mother has limited leave to remain in the UK valid to 13 May 2026. The appellant could not satisfy the requirements of the rules because to do so, would have required the adoptive parents to breach the conditions of the leave granted to them. The judge ignored the fact that the inability of the appellant to meet the requirements of the rules is created by the immigration rules for which the respondent is responsible. In failing to consider the actual factual matrix and by ignoring the reasons why the adoptive parents could not comply with the requirements, the judge allowed the respondent to benefit from acting irrationally.

ii)            The separation of the appellant from the family unit was a result of the respondent's decision to refuse the appellant entry clearance. Temporary arrangements were made by the appellant's adoptive mother to ensure his well-being during her absence. The judge failed properly consider the precariousness of the care arrangements. The judge concluded that there was "no evidence of the arrangements being unsatisfactory." That is not the test. The suitability of the arrangements set in place does not relieve the respondent from having to make sure the interference with family life is, first and foremost, proportionate. There is, the appellant claims, no genuine consideration of the terms and impact of section 55 of the Borders, Citizenship, and Immigration Act 2009. The judge ignores the reasonably likely consequences upon the appellant particularly considering the unwillingness of the current carer to continue with the arrangement. The judge erred in failing to engage with the appellant's dependability and vulnerability as a child.

9.             Permission to appeal was granted by Upper Tribunal Judge Sheridan on 28 May 2024. He said:

"This was an appeal under Article 8 ECHR (not a challenge to the lawfulness of para. 309A) and therefore it may well be that the lawfulness of para. 309A is irrelevant. However, as part of the Article 8 ECHR proportionality assessment the judge gave weight to the public interest in immigration controls. Arguably, that public interest would be reduced (or, indeed, might not exist at all) if the Immigration Rule relied on by the respondent is irrational/unlawful."

The Hearing of the Appeal Before Us

10.         On behalf of the appellant Ms Smeaton submits the judge accepted that family life exists, and Article 8 is engaged. She submits the appellant's right to reside with his adoptive parents and siblings is paramount. She accepts the appellant has not been brought up alongside his adoptive parents' children but, she submits, that does not detract from the right that they have to develop their relationship as siblings. Ms Smeaton also accepts that there was no evidence before the FtT of the appellant's adoptive father visiting the appellant. His adoptive father is a Dutch national and Ms Smeaton submits he would require a visit visa to travel to Uganda. That would only allow him to be in Uganda for a period of three months at a time. When pressed, Ms Smeaton accepted there was no evidence before the FtT of that proposition.

11.         Ms Smeaton accepts the need for checks and supervision when children are adopted internationally. She submits the appellant would have greater protection when he is in the UK whilst any proceedings are completed to seek judicial recognition of the Adoption Order under the common law. She accepts no proceedings had been issued before the Outer House for recognition of the Adoption Order at the time of the hearing before the FtT. Despite the passage of time, the current position is that solicitors and counsel have been instructed, but no petition has been lodged to the Outer House of the Court of Session. Ms Smeaton submits the appellant has been left in a precarious position and it is clear the current care arrangements cannot continue indefinitely. The appellant's bests interests are served by him being able to enter the UK so that the necessary checks can be completed and the appellant's relationship with his adoptive family can be considered by the local authority.

12.         Ms Smeaton submits the fact there had been an adoption, albeit one not recognised by the United Kingdom, opened the door to the appellant's Article 8 rights. She submits the conclusion reached by the judge that the decision to refuse entry clearance is proportionate "was wrong." The findings of fact indicate that family life was established, and it was a question of when, not if, the appellant should be allowed to come to the UK. The adoptive father cannot go to Uganda and the appellant's adoptive mother would be separated from her other children if she travels to Uganda.

13.         In reply, Ms Blackburn submits the judge was required to consider whether the requirements set out in the immigration rules are met. The key findings are set out at paragraph [10]. At paragraphs [11] and [12], the judge recorded the claim made on behalf of the appellant that the rules were met on the basis that there was in fact a de facto adoption, albeit it was not disputed that the appellant cannot meet the requirements of paragraph 314 of the rules on the alternative basis that the adoption is one that is formally recognised in the United Kingdom. The judge noted at paragraph [18] that he had been asked to find that paragraph 309B of the immigration rules is irrational. The judge referred to the reliance placed by the appellant on the decision of the Court of Appeal in AK & Ors v The Entry Clearance Office (Islamabad) & Anor , and Ms Blackburn submits, the judge gave perfectly adequate reasons for his conclusion that there has not been a judicial finding that either paragraphs 309A or 309B of the rules are irrational.

14.         Ms Blackburn submits the judge went on to address the Article 8 claim outside the rules. He accepted that family life exists and that the appellant is separated from his adoptive parents and siblings in the UK. The judge referred to the current arrangements for the care of the appellant. He noted, at [29], that the appellant's adoptive father has never lived with the appellant. Ms Blackburn submits the judge carried out an assessment based on the facts and findings made, and it was open to the judge to conclude that the respondent's decision to refuse entry clearance is not disproportionate.

Decision

15.         At the relevant time, Paragraphs 310 to 314 of the Immigration Rules sets out the requirements to be met by a child seeking either indefinite leave to enter remain as an adopted child. Those provisions have been replaced by Appendix Adoption with effect from 6 June 2024.

16.         In each case, as far as the adoption itself is concerned, the applicant must demonstrate either: (i) that they were adopted in accordance with a decision taken by the competent administrative authority or court in their country of origin or the country in which they are resident, being a country whose adoption orders are recognized by the United Kingdom; or (ii) they are the subject of a de facto adoption.

17.         To be given legal effect, an overseas adoption needs to fulfil the requirements of the Adoption (Recognition of Overseas Adoptions) Order 2013 (or in Scotland The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013) judicial recognition under the common law. It is common ground between the parties that Uganda is not on the list of designated countries in either of these orders and thus the appellant's adoption is not formally recognised in the United Kingdom.

18.         Before the FtT, the appellant claimed he is the subject of a de facto adoption. To that end, paragraph 309A of the Immigration Rules stated:

" Adopted children

309A. For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:

(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and

(b) during their time abroad, the adoptive parent or parents have:

(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and

(ii) have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility."

 

19.         De facto adoptions therefore require the adoptive parent or parents to have lived abroad for at least 18 months immediately preceding the application for entry clearance; 12 of which ought to have been spent living with the child. On any view it was open to the judge to conclude that the evidence indicates that the appellant's adoptive parents did not live together for 18 months abroad, nor did they live with the appellant for 12 months immediately preceding the application.

20.         There can therefore be no doubt that the requirements of the immigration rules cannot be met by the appellant. The appellant however claims the rules are irrational and Ms Smeaton refers to the decisions of the Court of Appeal in AK and Others and the Supreme Court in AA Somalia.

21.         In AK and Others, the Court of Appeal commented, without deciding the point, that paragraph 309A appeared to be irrational. We can state the facts before the Court of Appeal in summary. The eleven applicants were nationals of Afghanistan. Their eldest sister came to the United Kingdom and was granted asylum. The eleven applicants sought entry to the United Kingdom on the basis that they had been the subject of a de facto adoption by their sister in Afghanistan. Lewis LJ said:

"56. In the present case, I am very well aware of the circumstances of the applicants and I can see that there is a strong case that aspects of paragraph 309A are unlawful. In particular it is possible to see that there is a case that it is irrational to require that the prospective adoptive parent have lived with the child for the 12 months "immediately preceding the making of an application for entry clearance" (and by parity of reasoning, the fact that the 18 months that the prospective adoptive parent spends living in the relevant country while assuming the care of the child must immediately precede the application for entry clearance).

57. Paragraph 352D of the Immigration Rules provided for a child of a parent who was a refugee to obtain leave to enter if certain conditions were satisfied. Parent, as initially defined, only included children who were adopted pursuant to a decision or order of an authority or court recognised by the United Kingdom. In 2003, however, the Immigration Rules were amended to include children who had been the subject of a de facto adoption by a person. Paragraph 309A defines the circumstances in which a "de facto adoption shall be regarded as having taken place". Imposing a requirement that the 18 months living in the country during which the person assume care of the child and the 12 months living with the child, must be in the period "immediately preceding the making of the application for entry clearance" means that children claiming that they have been the subject of a de facto adoption by a person with refugee status will be unable to satisfy the requirements of paragraph 309A. The prospective adoptive parents who are refugees will necessarily have fled the country, travelled to the United Kingdom, and time will have been spent applying for refugee status in the United Kingdom. They will not have been living in the country concerned, or living with the child, in the period immediately preceding the making of the application for entry clearance by the child.

58. The reason why, without deciding the issue, that aspects of paragraph 309A may be irrational is this. It appears from the material before us that the definition of parent was amended, at least in part, to enable de facto adopted children of refugees to be able to obtain leave to enter to rejoin the de facto adoptive parent. Yet, the amendments introduced to achieve that result include requirements which mean that children who were intended to benefit from the amended rules cannot do so. Those requirements are arguably irrational and that appears from the terms of the amended Immigration Rules themselves.

59. Indeed, the amended rules have been the subject of criticism by the Supreme Court in AA (Somalia) v Entry Clearance Officer [2014] 1 WLR 43 , albeit in the context of an appeal dealing with the interpretation of the Rules rather than their validity. Lord Carnwath, with whom the other members of the Supreme Court agreed, observed at paragraph 13 of his judgment that:

"13. I would accept that the requirements of paragraph 309A(b)(i)(ii) seem ill-adapted to the purposes of paragraph 352D. They assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war-torn Somalia, and indeed for most asylum-seekers. Mr Eadie did not argue otherwise, although he suggested some theoretical scenarios in which the requirements might be achievable. As appears from its introduction the definition seems to have been designed principally to deal with ordinary applications to enter by adopted children, covered by the immediately following paragraphs. It finds its way into paragraph 352D by a somewhat circuitous route, which suggests that careful thought may not have been given to its practical implications. If there were any way in which we could legitimately rewrite the rule to produce a fairer result, I could see a persuasive case for doing so. Unfortunately I do not think this possible."

22.         In our judgement the difficulty for the appellant is threefold. First, contrary to what is said on behalf of the appellant, the judge did consider the appellant's claim that the relevant immigration rules are irrational. The judge said at paragraph [21] of his decision, entirely correctly, there has not been any judicial finding that paragraphs 309A or 309B of the immigration rules are irrational. We do not consider that the replacement of these paragraphs by paragraph AD28.1 in Appendix Adoption is indicative that the provisions were irrational.

23.         Second, the observations made by the Court of Appeal in AK and Others and the Supreme Court in AA (Somalia) are obiter and in any event concerned with the rationality of the rules vis-à-vis family reunion with those granted refugee status. The appellant's adoptive parents are not refugees that fled Uganda and are at risk in Uganda. The appellant's adoptive mother is a national of Uganda and as the judge found in paragraph [10(d)] she arrived in the UK on 14 December 2020 and was granted limited leave to remain. At paragraph [10(f)] the judge found the appellant's adoptive father is a Dutch citizen of Somali origin. At paragraph [10](j)] the judge found that between November 2021 and August 2023, the adoptive mother visited the appellant, in Uganda, seven times and would be returning to Uganda to visit the appellant in December 2023. The adoptive parents would not therefore face the same hurdles in meeting the requirements imposed by the rules for a de facto adoption as someone applying for family reunion with a refugee.

24.         Third, the evidence before the Tribunal, as set out in paragraph [27] of the decision was that both the adoptive parents said in evidence that they have recently instructed solicitors to petition either for adoption in the UK or for UK judicial recognition of the Ugandan adoption order. Neither we, nor it appears the FtT, were provided with any information about the legal or evidential basis upon which a petition is to be presented to the Outer House, but it seems the position remains as it was before the FtT, that that is a course of action being pursued on behalf of the appellant to ensure the adoption is recognised in the United Kingdom.

25.         The adoptive father has indefinite leave to remain and there is nothing to prevent him travelling to and from Uganda. There was no evidence before the FtT that he would not be permitted entry to Uganda for an extended period if the correct application were made. The adoptive mother has been able to travel to and from Uganda regularly. In any event, if, as the adoptive parents claimed in their evidence before the FtT, they intend to petition the Outer House for lawful recognition of the adoption, the question of the adoptive parents spending extended periods of time out of the United Kingdom may not arise. It is unfortunate that despite the passage of time they have taken no meaningful steps to present and pursue a petition to the Outer House in the way they told the FtT they intended to.

26.         In those circumstances it was open to the judge to say at paragraphs [30] to [32] of the decision that the route to success for the reunification of this family is to pursue an adoption which is recognized in the UK. It cannot be said that the conclusion reached by the judge was not a rational one.

27.         It follows that in our judgment, the judge had regard to the case advanced on behalf of the appellant in reaching his decision and there is no merit to the first ground of appeal.

28.         As far as the second ground of appeal is concerned, the appellant claims suitable temporary arrangements were made by the appellant's mother to ensure his well being during her absence. However, the judge failed to consider the precariousness of the care arrangement. It is said that the suitability of the mother's arrangements in respect of the quality of care she has set in place does not relieve the respondent from having to make sure the interference with family life is, first and foremost, proportionate. Finally, the appellant claims there is no genuine consideration of the terms and impact of section 55 of the Borders, Citizenship, and Immigration Act 2009. Before us, Ms Smeaton submits the conclusion reached by the judge that the decision to refuse entry clearance is proportionate "was wrong."

29.         We have reminded ourselves of what was said by the House of Lords in SSHD v AH (Sudan) [2007] UKHL 49[2008] 1 AC 678 and by the Supreme Court in Perry v Raleys Solicitors [2019] UKSC 5; [2020] AC 352. The FtT is a specialist body, tasked with administering a complex area of law in challenging circumstances. It is likely that, in doing so, it will have understood and applied the law correctly. Appellate judges should not rush to find misdirection merely because the judge at first instance might have directed themselves more fully or given their reasons in greater detail. There is a real rationale for the deference which an appellate court will display towards a trial judge's findings of fact, and proper restraint must be exercised before deciding to interfere with such findings. We have borne those principles firmly in mind.

30.         The assessment of an Article 8 claim such as this is always a highly fact sensitive task. The judge found, at [10(k)], that before coming to the UK in December 2020, the appellant's adoptive mother reached an agreement that her friend would look after the appellant in her friend's house in Uganda until the appellant could join his family in the UK. The adoptive parents send money for the appellant's maintenance, accommodation, education, and healthcare to the friend in Uganda.

31.         Although we accept that the judge's analysis of the best interests of the appellant could have been clearer, contrary to what is said by the appellant, the judge had regard to the best interests of the appellant as a primary consideration. The duty under s55 is referred to at paragraph [25] of the decision.

32.         The judge had noted at paragraph [24] that a temporary, informal, foster care arrangement had been entered into for the appellant. The statement from the appellant's adoptive mother that was before the FtT stated, at paragraph [13] that she has managed to convince her friend to continue looking after appellant until his immigration matters are resolved. She states that her friend repeatedly reminds her that looking after the appellant was temporary and not permanent, and there is a limit to how long this can continue. Both adoptive parents refer to the current arrangements for the care provided and it is against that background that the judge said at paragraph [28] of his decision that there is no reliable evidence that the arrangements for the appellant in Uganda are unsatisfactory. The judge noted the appellant is adequately maintained and accommodated and has access to education and as well as regular visits from his adoptive mother.

33.         A fact-sensitive analysis of the evidence was required. The judge identified the core issue in this appeal. We are satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.

34.         It follows that we are satisfied that there is no material error of law in the decision of the FtT and we dismiss the appeal.

Notice of Decision

35.         The appeal to the Upper Tribunal is dismissed.

36.         The decision of First-tier Tribunal Judge Doyle promulgated on 30 November 2023 stands.

V. Mandalia

Upper Tribunal Judge Mandalia

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

23 December 2024