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Cite as: [2005] EWCA Civ 89, [2005] INLR 564

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Neutral Citation Number: [2005] EWCA Civ 89


Royal Courts of Justice
London, WC2
20th January 2005

B e f o r e :



RADHIKA SHARMA Appellant/Appellant


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MR R DE MELLO (instructed by MESSRS HARBANS SINGH & CO, BIRMINGHAM B21 9QL) appeared on behalf of the Appellant
MR A HUNTER (instructed by TREASURY SOLICITORS) appeared on behalf of the Respondent



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  1. LORD JUSTICE PILL: The appellant, Radhika Sharma, is an 8-year- old Indian citizen. She appeals against a determination of the Immigration Appeal Tribunal promulgated on 18th August 2004, dismissing her appeal from the determination of an adjudicator promulgated on 18th June 2003. The adjudicator had dismissed, on immigration and human rights grounds, the appellant's appeal against a refusal of the Entry Clearance Officer in New Delhi on 28th March 2002 to allow her entry clearance to the United Kingdom, for the purpose of settlement with her adoptive parents here. Her sponsor is her adoptive mother, Mrs Santosh Rani Sharma.
  2. This is a case in which the promulgated decisions of the adjudicator and the Immigration Appeal Tribunal are both carefully drafted, if I may say so, and comprehensive. I find it appropriate to cite considerable portions of the contents of those determinations in this judgment.
  3. The adjudicator considered the application under paragraph 310(ix) of the Immigration Rules HC 395, as amended, and under Article 8 of the European Convention on Human Rights (ECHR).
  4. The sponsor gave evidence before the adjudicator, who summarised the appellant's case as follows (paragraphs 6 to 8 of the adjudicator's decision, pages 54-56 of the bundle):
  5. "6. The circumstances leading to the present application and appeal are set out in some detail in the Sponsor's witness statement to be found in the Appellant's bundle and which she adopted at hearing. The general background is that the Sponsor's husband came to the UK in 1990 whilst the Sponsor and her three male children remained in India living with the husband's parents. The Sponsor and her three sons joined her husband in the UK in May 1998, having obtained entry clearance for settlement, and they were granted indefinite leave to remain in June 1999. The sponsor's husband works as a production operator and the Sponsor works part-time as a creche worker. Her husband owns their three bedroom property subject to a mortgage. The sponsors's mother-in-law died in June 1999 but father-in-law still lives in the home village.
    7. The Sponsor's husband has two brothers and two sisters, all married and all living in India apart from one brother who lives in the UK with his family. The Sponsor herself has four brothers and three sisters, all married and all living in India with their respective families.
    8. The Sponsor's husband's younger brother, Raj Kumar Sharma, is married to Kanchan Rani Sharma and lives with his family at Village Dlwall in the district of Jalandhar. They had two children, a daughter aged about 15 now and a son now aged 13. When that son was about 3 years old he suffered an accident with a motorcycle and broke his hip and leg. He has never fully recovered from that and is handicapped. To quote from the Sponsor's statement: 'After this incident the parents were trying for a male child. On 24th July 1996 Kanchan Sharma my sister-in-law gave birth to a baby girl. Immediately after her birth the mother rejected the child as she was hoping for a baby boy. Both the parents were very upset and distressed with the thought that they would not be able to provide the good standard of living and good education to the three children, one being handicapped and the others being daughters. They were thinking she is a burden and they can't financially cope with it. Because still in India people think daughters to be a burden as the parents not only have to bear the expense of their upbringing but also marry them as well. People are generally frightened about the dowry system. After the second day of the birth of the child I went to see the family and found out how the parents felt about their daughter. I tried to console and assured them to financially help them as when required. They did not have any impact on my sister-in-law and she completely rejected the child and even refused to feed it. On the other hand, I did not have a daughter which I and my husband always wanted. That is why we tried for a third child after the birth of a second son but it was a boy again. So on the same day I 'phoned my husband and explained the whole situation and expressed my desire to adopt the daughter. My husband was fully agreed with me and suggested me to take away the child immediately and complete the adoption formalities later on.'"
  6. Reliance was placed by the appellant on paragraph 310 of HC 395. That provides in so far as is material:
  7. "The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled in the United Kingdom are that he...(ix) was adopted due to the inability of the original parent(s) or current carer(s) to care for him, and there has been a genuine transfer of parental responsibility to the adoptive parents."
  8. For presents purposes it is not necessary to set out the other requirements, although I shall mention one of them in relation to a point raised by Mr De Mello, on behalf of the appellant, which arises if his appeal were to succeed.
  9. In making his findings at paragraph 14, the adjudicator referred to the natural parents, (page 57 of the bundle):
  10. "They chose to have another child in the hope that it would be a boy. They took a 50/50 chance on that and when their gamble did not pay off the mother immediately rejected the girl child, refusing to feed it or even look at it. It is entirely apparent that had the child turned out to be a boy the natural parents, dispute their alleged poverty, would have kept it and supported it financially. As it was, the natural parents were offered the financial support of the extended family including the Sponsor so as to allay any concerns they might have had about the 'cost' of a daughter but they were not interested in that. My first finding therefore is that the appellant was not adopted due to the inability of the original parents to care for her but rather because of their unwillingness to do so. That in itself means that the Appellant does not qualify for entry clearance under paragraph 310 of HC 395."
  11. When dealing with paragraph 297 of HC 395, upon which an issue does not arise, for reasons I will mention later, the adjudicator stated that there were "serious difficulties in the way of accepting the Sponsor as a reliable witness."
  12. Paragraph 16 of the adjudicator's decision (page 57):

    "As already stated, the burden of proof in immigration appeals lies upon the Appellant (in this case effectively through her Sponsor) to the standard of a balance of probabilities. Thus, the credibility and reliability of the Sponsor's evidence has to be considered. For all her attempts at explanation, I find that there are serious difficulties in the way of accepting the Sponsor as a reliable witness. The first and most obvious point is that when she was interviewed in or about February 1998 in connection with her own application for entry clearance for herself and her three sons to settle in the UK not only did she did not disclose the Appellant as her adoptive daughter (notwithstanding that the formal adoption had taken place over a year earlier) but also she showed the Appellant as living with her natural parents on the family tree she was asked to complete. Her evidence now is that at the time the Appellant was living with her along with her parents-in-law. She seeks to explain this now by saying that the overriding concern was to get her three sons into the country there was pressure to do this because the eldest son was approaching his eighteenth birthday. She says that she had taken advice about this. If she had, she would have known that it was the age at the date of application that mattered and they therefore had no need to worry on that score. Thus, her explanation lacks credibility and I reject it. The corollary is that there was no intention to bring the Appellant to UK as part of the family unit at that time and the question then arises - if not, why not? After all, if the Sponsor was not going to reveal the adoption at that time nor the fact that the Appellant was even living in her household in India, she must surely have realised that this would count against her on any subsequent application to bring the Appellant here as her adoptive daughter. On analysis therefore I am taken to the conclusion that the intention at that time was that the Appellant should remain in India and be brought up within the extended family there and that the adoption itself was one of convenience (no doubt tinged with a degree of mercy for the baby Appellant rejected by her natural parents) rather than one which represented a genuine, as opposed to a purely formal, transfer of parental responsibility to the Sponsor and her husband. In other words, the Sponsor was content to go off to the UK with her three natural children and join her husband, leaving the Appellant in the hands of her parents-in-law and in the bosom of her own Indian culture."

    In the latter part of that paragraph, in my judgment it is clear that the adjudicator was dealing with the second limb of 310(ix), whether there has been a "genuine transfer of parental responsibility to the adoptive parents".

  13. At paragraph 18 the adjudicator stated (pages 58-59):
  14. "What has been disclosed by photographic evidence, certificates and oral and written testimony is that the Appellant herself is an apparently happy child, doing well at school (coming first in all her subjects according to the Sponsor) and having happy relationships with her young friends and relatives in India. Her home in India has for considerable time been that of the Sponsor's sister and her family. For all the many witness statements before me which I have studied, the only evidence I have that the Appellant is anxious and enquiring as to when she may join her adoptive parents in the UK is that of the Sponsor herself and I regard her as unreliable. I have not ignored the many photographs before me, some of which show the Appellant in the company of the sponsor and/or her husband during their recent visits to India. However, on their own terms, they do not persuade me that they show anything more than that normal intercourse which might take place between the uncle and the aunt and niece."
  15. The adjudicator also considered the case under Article 8 of the ECHR. That is not a separate ground of application to this Court, although it does arise obliquely. I set it out because it throws light upon the adjudicator's approach to the evidence and his view of the appellant's position. Paragraph 20 (page 59):
  16. "I turn to consideration of the submission under Article 8 of the ECHR. By the fact of the adoption and in light of the evidence before me of a continuation of contact between the Sponsors and the Appellant, although I find that the nature and extent of that contact and whether it extends to regular and continuing financial support open to doubt on the totality of the evidence before me, I think I am bound to accept that there is at least a degree of family life between the Appellant and the Sponsors. However, the Appellant's family life with the Sponsor's husband has always been conducted remotely, apart from his two visits to India, and so it has been, with similar exceptions, in respect of the Sponsor herself since May 1998. Thus the decision appealed against does not interfere with family life as it has been lived hitherto and, on my findings, as it was always intended it should be lived. It therefore does no more than preserve the status quo ante. In the particular circumstances of this case therefore I do not consider that there is an inference with family life. However, if I were to be wrong about that, the decision was, on my findings, in accordance with the law and it pursued the legitimate aim of proper immigration control, necessary in a democratic society for the economic well-being of the country and the preservation of law and order. I also consider that on the particular facts of this case the decision is proportionate to that legitimate aim. I would accept that it would not be easy for the Sponsor and her husband, given their life here and their responsibilities to their natural children, to remove back to India to be with the Appellant full-time. However, there is nothing to stop family life being conducted in the future as it has been in the past and there is nothing of substance before me to suggest that the Appellant is living other than a happy and settled life in India. I do not suppose that she would be doing well at school if that were not so. I also take into account, as I have already commented, that the circumstances leading to this application and appeal were unmeritorious in their origins and that has been compounded by a lack of candour on the part of the Sponsor, certainly when she made her own entry clearance application in 1998 and I believe elsewhere as well. In all the circumstances therefore I find that the decision was proportionate."
  17. The IAT upheld the decision of the adjudicator. They declined to follow a statement in MacDonald's Immigration Law and Practice, 5th edition, paragraph 93, where it is stated:
  18. "Incapability includes not just actual inability, but also unwillingness to care."

    That single sentence is supported by way of authority by the case of Kausar 3 IAS 2000 (No 15) (pages 34-35), mentioned in a footnote. It was summarised by the Tribunal:

    "MacDonald cites a decision Asima Kausar 00/TH/1572. Mr De Mello referred to that authority in his skeleton argument but did not have it to hand for the hearing. We were able to retrieve a copy of the decision of a Tribunal chaired by His Honour Judge Lakin, sitting with two lay members and promulgated on 26 June 2000. In Kausar, there was a factually complicated situation. The Sponsor's daughter lived in Pakistan and had three children. She was effectively deserted by her husband (the children's father). He had gone illegally to the USA, to try to improve his economic position, but made no attempt, apart from one remittance of 50 to keep in touch with his children. The Sponsor's daughter died (aged 36) only 6 months after the birth of the third child. The father of the children would not come back from the United States and the Sponsor's wife looked after the children in Pakistan for a number of years. The Sponsor himself remained in the United Kingdom because of work commitments. After about three years the Sponsor's wife, who survived on money sent back by the Sponsor was unable to cope and the Sponsor became concerned about the welfare of the children. Their father was prepared to sign a document handing over responsibility for the children. The Sponsor's wife then became seriously ill and came back to the United Kingdom, leaving the children in the care of the Sponsor's brother. The Sponsor's wife then died in the United Kingdom. The Sponsor continued to send money back to maintain the children. The issue in that case, as in this, included the question of a de facto adoption. But in Kausar the Presenting Officer also argued that any transfer of parental responsibility to the Sponsor had not been because of the children's father's inability to care for the children but because he was unwilling to do so. The Appellant in Kausar argued that the Tribunal should not give the word inability a strict literal interpretation, but should adopt a broader more humanitarian preach. He argued that the rules were intended to promote family life and should be interpreted accordingly and that it would be wholly wrong to dismiss the appeal on a technicality of language. The Tribunal appears to have accepted that argument and said:-
    'Viewed in the context of this case, it is perfectly proper to interpret the word in such a way as to include unwillingness in the sense of a self imposed inability. If we are wrong about this, the simple fact is that at the time when his wife died, Tariq was in the USA and had remained in the USA. His absence from Pakistan clearly means that he is unable to care for his children.'
    12. Whether or not that Tribunal was correct in coming to the conclusion it did as to the interpretation of the word inability, it is clear that the factual basis of that appeal was entirely different from this. There, there was an absentee father who could not care for the children whilst he was in America."

    The Tribunal stated at paragraphs 13 to 16 of its decision (page 36):

    "13. In contrast in this appeal, it is quite clear that had the Appellant been male, her parents would have had no difficulty in looking after her at all. It is clear from the evidence that having rejected their daughter they were proposing to try for another son. The rejection was not due to any inability to care but simply a rejection on the basis of the children's gender.
    14. We are not satisfied that the rule was intended to apply to children who were handed over to adoptive parents from choice rather than out of necessity. Sub- paragraph 9 has two apparent parts to it. The first part refers to the inability of the original parents to care for the child, and the second a genuine transfer of parental responsibility. An entirely voluntary handover, by agreement could comply with the second part of the Rule but not the first. Had it been intended that the world inability would include unwillingness then there would be no point in the first requirement in the sub-paragraph. The second requirement alone would have been sufficient to give the Rule its effect.
    15. The passage in MacDonald suggests that 'inability to care should not be interpreted more strictly than in the exclusion undesirable cases'. That in turn refers to 'paragraph 11.79 et seq.' Mr De Mello did not seek to argue that the Appellant should succeed because of such an interpretation. Indeed the evidence does not suggest that the Appellant was living in poor conditions but rather that she is with the Sponsor's sister and is attending school in their village. There is no suggestion that she is suffering any deprivations or living in poor conditions such as to justify an argument that a more humanitarian approach to the definition of inability might be appropriate.
    16. There is a significant difference between inability and unwillingness. It takes a considerable amount of imagination to see the two things as synonymous. An inability is an involuntary situation whereas an unwillingness is voluntary. Even if the decision in Kauser is correct, the situation in that appeal could arguably be described as approaching an inability to care, whereas in this appeal it is not even arguable."

    It was stated at paragraph 19 of the determination that counsel "did not seek to argue that the Appellant could succeed under Article 8 ECHR".

  19. For the appellant, Mr De Mello submits that the word "inability" in paragraph 310(ix) of HC 395 includes "unwillingness". The appellant's natural parents' rejection of her, on the basis of her gender, was sufficient to constitute an inability to care for her within the meaning of the subparagraph. The purpose of the Rule is to provide, it is submitted, a child whose parents cannot or will not care for her with a permanent family, able and willing to care for her. What is critical in interpreting the Rule is the best interests of the child. By reason of section 3 of the Human Rights Act 1998, it is possible to construe the word "inability" to extend to "unwillingness". Unless the rule is construed that way, it is submitted, it is incompatible with Article 8 of the ECHR, which provides for the right to respect for family life. Section 3 of the Act provides, in so far as material:
  20. "(1) So far it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
  21. Mr De Mello refers to the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] 3 WLR 113, and to a passage in the speech of Lord Nicholls, at page 124, paragraph 32:
  22. "From this conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning and hence the effect of primary and secondary legislation."

    That principle, it is conceded, on behalf of the Secretary of State, applies to the Immigration Rules.

  23. Mr De Mello submits that to make the rule Convention compliant, inability must be construed so as to include an unwillingness.
  24. For the respondent, Mr Hunter submits that, as a matter of language, the word "inability" does not include "unwillingness". Counsel refers to the general guidance relating to adoption cases issued by IND (Immigration Nationality Directorate) at paragraph 9.4:
  25. "In line with internationally recognised objectives concerning inter-country adoption, the inability to care for the child must be one of necessity and not one of choice."

    Further, it is submitted, the construction for which the appellant contends would render the expression "inability to care" redundant, because all likely cases of adoption would be covered without the need for that expression in the Rule. "Inability" has no meaning, it is submitted, if it includes "unwillingness".

  26. Mr Hunter submits that, even if the broader construction were to be correct, the appellant's case fails on the second limb of subparagraph (ix). The adjudicator considered the evidence and found as a fact that there was no genuine transfer of parental responsibility. No appeal was made to the IAT against that finding. It has not been suggested that the finding was, on the evidence irrational.
  27. Mr Hunter accepts of course the duty upon the Secretary of State to comply with the Human Rights Act. In a case where to refuse entry would be a breach of Article 8, permission to enter must be given.
  28. Rule 2 of the Immigration Rules provides:
  29. "Immigration officers, entry clearance officers and all staff at the Home Office Immigration and Nationality Directorate will carry out their duties without regard to the race, colour or religion of the person seeking to enter or remain in the United Kingdom and in compliance with the provisions of the Human Rights Act 1998."

    The duty of public authorities under section 6 of the Act is also relevant.

  30. I have referred to the Tribunal's treatment of the case of Kausar. I agree with their approach. That is not to say, as stated by the Tribunal, that the decision in Kausar was wrong on its own facts. The father was in the United States and had been there for some time and was working there. Mr Hunter submits that, in those circumstances, the father could be found to be geographically and financially unable within the meaning of 310(ix). There is a clear factual distinction. The father in that case could not in the circumstances in which he found himself care for the child.
  31. As to the meaning of paragraph 310(ix) of HC 365, I agree with the reasoning and conclusions of the adjudicator and the Tribunal. The word "unable" is defined in the Concise Oxford Dictionary, tenth edition as meaning "lacking the skill, means or opportunity to do something". The natural parents in this case lacked neither the skill, nor the means, nor the opportunity to care for the appellant. They simply did not wish to do so. That was the choice they made.
  32. The Rule covers children whose natural parents are unable to care for them. That does not cover a situation in which natural parents are able to care for the child, if they choose to do so, but, as an exercise of choice, do not want to do so. The concepts of inability and unwillingness are quite distinct. The presumptive adopter may be faced with a situation in which the natural parents are able to care for the child, but are unwilling to do so. That is precisely the situation which arose in this case. I cannot read the first limb of 310(ix) in any other way, through having full regard to the duty of the Court under section 3 of the 1998 Act.
  33. That is not the end of an application, as Mr Hunter conceded, by reason of the duties of the respondent under the 1998 Act. In this case it was held that the adjudicator was entitled to find that there was no breach of Article 8. Where a refusal to enter would involve a breach of Article 8 the obligation to permit entry would arise.
  34. Rule 310 is headed "Requirements for indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom." Having regard to the 1998 Act that is not however an exclusive statement of the circumstances in which leave to enter will be granted. It will be granted if the requirements in the Rule are complied with. It must also be granted if, on the facts, there would otherwise be a breach of the duties of the Secretary of State under the 1998 Act.
  35. I cannot accept Mr De Mello's submission that the Adjudicator's finding on the second limb of 310(ix) can stand only if his decision on inability is correct. Mr De Mello submits that the approach to the second limb is conditional and depends upon the correct approach to the first limb. He submits that the failure to adopt the correct approach on the first limb makes the finding on the second limb unsatisfactory. On my finding, on the first limb, that does not arise, but I find no merit in the point, in circumstances such as the present. I have stated that there is no independent appeal under Article 8, though Article 8 is claimed to be relevant in the way I have described.
  36. Mr De Mello has raised two further points which he accepts arise only if he were to be successful on the first point. The first is an attempt to rely on Rule 297. That deals with natural children. In my judgment, it would fail because of the interpretation section in the Rules (paragraph 6), where it is expressly stated that paragraph 297 - 303 do not apply to an adopted child, or a child who is the subject of a de facto adoption. Mr De Mello would seek to raise the same Human Rights argument in relation to the interpretation of paragraph 6(d) to which I have just referred. If he fails on the first of the interpretative questions in relation to 310, then, in my judgment, he fails on this one too. Moreover, he has the procedural obstacle, which he is unable to overcome: no permission to appeal was given to the IAT on that ground; no application before the IAT was made on that ground and it was only faintly referred to in the skeleton argument prepared for the EAT. There is no permission to appeal to this Court on the ground.
  37. The third point arises from paragraph 17 of the decision of the IAT. The Court has approached the issue on 310(ix), on the basis that it can assume that the other requirements in rule 310 are satisfied. However, having reached a conclusion on 310(ix), the Tribunal stated:
  38. "We did not therefore feel it necessary to resolve the more technical issue as to whether this adoption can be said to have been in accordance with the decision taken by the competent Ministry of authority or court in India."
  39. Mr Hunter accepts that, had the appellant been successful on the question of construction then, upon a remission to the IAT, that issue may have been relevant. I see no need to comment upon it, having regard to the view I take, which I understand my Lords share, that the appellant fails on the construction ground.
  40. For the reasons I have given, I would dismiss this appeal.
  41. LORD JUSTICE MANCE: I agree with my Lord's reasoning and conclusions.
  42. LORD JUSTICE KEENE: I also agree. I would only add a few comments of my own on the relevance of Article 8 of the European Convention on Human Rights. The adjudicator found that the Entry Clearance Officer's decision did not interfere with family life, so as to breach Article 8. No permission to appeal to the IAT was granted on that aspect of the case, and the IAT recorded, as my Lord has pointed out, that counsel for the appellant did not seek to argue that she should succeed under Article 8.
  43. This is important when one comes to how Mr De Mello now seeks to put his case. He seeks to use Article 8 in conjunction with section 3 of the Human Rights Act 1998, so as to achieve a wider meaning of the word "inability" in rule 310(ix) than would conventionally be attached to it. But his argument depends on it being the case that there would be a breach of Convention rights unless his broad interpretation were to be adopted by virtue of section 3.
  44. In my judgment, he fails to demonstrate that. The entry clearance officer is a public authority, under the Human Rights Act (section 6), and obliged to act in a way compatible with Convention rights. He has the ability to do so, without having to adopt the strained meaning of "inability" in Rule 310 because, as Mr Hunter submitted on behalf of the Secretary of State, there is a discretion to grant leave to enter and settle even where the case falls outside the strict wording of the Immigration Rules. There is no need, therefore, to adopt an unusual or strained interpretation of the wording of Rule 310(ix) and one does not get to section 3 of the 1998 Act. The rulings on Article 8, as a freestanding issue, dispose of the matter.
  45. For those reasons, as well as those of my Lord, Pill LJ, I agree that this appeal should be dismissed.
  46. LORD JUSTICE PILL: Are there any applications?
  47. MR DE MELLO: My Lord, there is a legal aid certificate of public funding. May I have the normal...
  48. LORD JUSTICE PILL: You have the appropriate direction, yes.

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