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Cite as: [2006] UKAIT 68, [2006] UKAIT 00068

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    SK ("Adoption" not recognised in UK) India [2006] UKAIT 00068

    ASYLUM AND IMMIGRATION TRIBUNAL

    Date of hearing: 15 February 2006

    Date Determination notified: 01 September 2006

    Before

    Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
    Designated Immigration Judge O'Malley
    Immigration Judge Cox

    Between

    SK APPELLANT
    and  
    The Entry Clearance Officer, New Delhi RESPONDENT

    For the Appellant: Mr M Gill QC, instructed by Heer Manak Solicitors

    For the Respondent: Mr L Petryszyn, Home Office Presenting Officer

    DETERMINATION AND REASONS

    The restrictions on the notion of adoption (paragraphs 6 and 310(vi)(a) and de facto adoption (paragraphs 309A and 310(vi)(b)) are not shown to be contrary to Article 8, disproportionate or irrational. The Immigration Rules taken as a whole appear to be an appropriate response to the varying status of children who seek admission to join sponsors who are not their natural parents. Any different solution would have to deal with the difficulty of the admission of a person who would not be regarded as the child of the parents for any purposes of the general law. A country such as the United Kingdom that attributes specific effects to adoption is entitled to require formalities acceptable to it before adoption is recognised as having those effects.

    Introduction

  1. The appellant is a citizen of India, born on 7 March 1993. She appealed to an Adjudicator against the decision of the respondent dated 17 October 2003 to refuse her entry clearance with a view to settlement as the adopted child of the sponsors. The Adjudicator dismissed her appeal. She applied for and was granted permission to appeal to the Immigration Appeal Tribunal. Following the coming into force of the appeals provisions of the 2004 Act, the grant of permission takes effect for an order for reconsideration by this Tribunal.
  2. The sponsors are husband and wife and are both settled in the United Kingdom. The appellant is the child of the brother of the female sponsor. She is one of four siblings. Following discussions between the sponsors and her parents an adoption was arranged. On one of the sponsors' several visits to India, there was a legal process, followed by a religious ceremony. Thereafter, an application was made for the appellant's admission on the basis that she had become, by adoption, the child of the sponsors.
  3. The appeal against the refusal of that application was on the grounds that the appellant was entitled to admission under the Immigration Rules as correctly interpreted, alternatively that her exclusion would breach Article 8. The Adjudicator dismissed the appeal on both alternative grounds. In considering Article 8, he applied the law which he believed to be binding on him: he did not consider independently whether the exclusion of the appellant from the United Kingdom would be a proportionate interference with whatever rights she had established would be the subject of interference by her exclusion. Before us, it was acknowledged that that process was erroneous in law: as the Court of Appeal has explained in Huang [2005] EWCA Civ 105, the Adjudicator's task was to decide independently whether her Article 8 rights would be breached. Both parties submitted, and we agreed, that the Adjudicator's decision contained a material error of law and that we should proceed now to decide whether the appeal should be allowed or dismissed.
  4. The Grounds of Appeal, as expanded in Mr Gill QC's skeleton and in his submissions before us, may be summarised as follows. They assert that the adoption was properly carried out in India and that there is no lawful or rational or proportionate or non-discriminatory basis for excluding an Indian adoption from recognition as an adoption in English law; that in the alternative the appellant was to be regarded as a party to a de facto adoption as set out in paragraph 309A of HC 395 on its true construction; that the appellant met all the other requirements of paragraph 310; that her exclusion would be disproportionate either as discriminatory against Indian adoptees or as failing to promote the interests of parents and children in conducting family life together.
  5. We do not mean in so summarising to belittle either the richness or the complexity of the submissions Mr Gill made both in writing and orally. As we pointed out at the hearing, however, the concentration on one or two Immigration Rules to the exclusion of others, and the concentration on one aspect of adoption to the exclusion of others, runs the risk of causing one to lose sight of the full picture. In order to see how the relevant Immigration Rules work we shall need to say something in general about adoption and to look rather more broadly at the way the Immigration Rules provide for the admission of children who are not the natural children of their sponsors. First, though, we must set out the facts in a little more detail. The Adjudicator heard oral evidence from the sponsors. His findings of fact were largely in accordance with that evidence, although there were one or two matters on which he noted discrepancies. We also heard oral evidence from the sponsors. We see no reason to doubt its credibility.
  6. The facts

  7. The male sponsor was born in 1942, the female sponsor in 1953. They married in March 1985 and are both present and settled in the United Kingdom. They were unable to conceive any children. The problem is the female sponsor's and appears to be hereditary: all of her sisters suffer similarly. Extensive fertility treatment failed, and by 1999 (by which time the female sponsor was 47) they had accepted that they were going to have no children of their own.
  8. The female sponsor's brother and his wife have four children. The appellant is the youngest of them. The link between the sponsors and the appellant has always been very close: the sponsors attribute this to the fact that the appellant was born at exactly the time that they were undergoing fertility treatment. It is not absolutely clear when it was that it was decided that the sponsors would adopt the appellant as their child. In her statement the female sponsor suggested that that decision dated right back to the appellant's birth, and that the appellant had always known the sponsors as her mother and father. We do not think that can be quite right, despite the close link to which we have referred, because the sponsors had not yet completely given up hope of having children of their own. But they were visiting India regularly and were keeping quite close contact with the appellant's parents and her family. It looks as though it was in 1999 that the families agreed that the appellant should become the sponsors' child. In early 2003 the families agreed that the adoption arrangement should be formalised in India.
  9. As we have said, there was a legal process and a religious ceremony. There is evidence before us that the legal process amounts to a valid adoption under the relevant Indian statute, the Hindu Adoption and Maintenance Act 1956 (which, despite its title, applies also to those of the Sikh religion). We are content to assume that, so far as Indian law is concerned, the appellant is the child of the sponsors.
  10. Very soon after the adoption ceremony the sponsors had to return to the United Kingdom, because the male sponsor's brother was terminally ill. The sponsors made arrangements for the appellant to be looked after by a guardian. She was not left with her natural parents. The sponsors have subsequently made a number of visits to India to be with the appellant. The sponsors have been responsible for the financial support of the appellant for some time. There is no real doubt that they have been solely responsible for her support since the adoption. We have no doubt that, if the appellant were admitted to the United Kingdom, there would be adequate maintenance and accommodation available to her through the sponsors.
  11. On the evidence before him, the Adjudicator declined to find that the appellant was adopted due to the inability of her original parents to care for her, that that had been a genuine transfer of parental responsibility to the adopted parents, and that she had lost or broken her ties with her family of origin. His findings on all those issues are the subject of complaint in the Grounds of Appeal. For reasons which will become apparent, we do not need to make findings on these issues. We will, however, record that on the evidence before us we would have found in the appellant's favour on the second and third of those issues but not the first: although the appellant's parents' means are no doubt modest, the adoption arose from choice, not strictly speaking from their "inability" to care for the appellant.
  12. "Adoption" in the Immigration Rules

  13. The Immigration Rules considered by the Adjudicator are those contained in paragraphs 310 and 317 of HC 395. Those were the paragraphs to which his attention was directed by the respondent's Explanatory Statement: but there can be no doubt that the reference to paragraphs 317 was an error by both. Paragraph 317 applies only to adults. The relevant paragraph is 297, which applies to those under 18 years old. Nothing turns on this, as the wording on which the decision turns (which we set out below) is the same. Both paragraph 310 and paragraph 297 present in limine a difficulty for the appellant, which difficulty was the principal subject of submissions before us.
  14. Paragraph 310 is headed
  15. "Requirements for Indefinite to enter the United Kingdom as the adopted child of a parents or parents present and settled or being admitted for settlement in the United Kingdom".

    One of the requirements is that the child:

    "(vi)(a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident being a country whose adoption orders are recognised by the United Kingdom; or
    (b) is the subject of a de facto adoption."

    "De facto" adoption is defined for the purposes of the Immigration Rules in paragraph 309A, to which we shall return in due course.

  16. Paragraph 297 is headed
  17. "Requirements for indefinite leave to enter in the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom".

    It is thus not specifically concerned with relatives by adoption. But the relationships in paragraph 297 are governed by the general definitions at the beginning of the Rules, amongst which we find the following in paragraph 6

    "'a parent' includes
    (d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where the child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules (except that an adopted child or child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303)"

  18. The problem in either case is that, although the evidence is that the legal process in India did amount to a decision taken by the competent administrative authority there, India is not a country whose adoption orders are recognised by the United Kingdom. The relevant legislation is the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19), as variously amended. The order contains a list of Commonwealth countries including Sri Lanka, and a list of non-Commonwealth countries including China (for adoptions on or after 5 April 1993), but the lists do not include India, Pakistan or Bangladesh.
  19. It follows that although an Indian adoption may be effective in India, it does not create the relationship of parent and child for the general purposes of the Immigration Rules, nor does it enable the subject of the adoption to obtain entry clearance under paragraph 310. The appellant cannot therefore meet the requirements of either paragraph 310 or paragraph 317: she is not to be regarded as the daughter or the adoptive daughter of the sponsors.
  20. It is this result which is challenged by her representatives. It is said, first of all, that there is no proper basis for excluding some countries from the lists of designated countries in the Order. For cultural reasons an Indian adoption may be different from an adoption in some other countries, but that is no reason for excluding Indian adoptees from admission to the United Kingdom. The Order itself is discriminatory; and its inclusion by reference into the Immigration Rules makes the Immigration Rules discriminatory too.
  21. Secondly, it is said that the apparent strictness of the provisions to which we have been making reference is breached by paragraph 309A, which allows de facto adoptions in such circumstances. Mr Gill submits that, correctly interpreted, paragraph 309A covers the present circumstances.
  22. Thirdly, it is said that the relationship between the parents and child in an Indian adoption is in any event to be regarded under Article 8 as a family relationship which itself gives rise to rights under that Article and that to exclude the appellant from the United Kingdom is a breach of those rights.
  23. Discussion

  24. It appears to us that the principal difficulty with Mr Gill's arguments is, as we have indicated above, that they fail to deal with the whole picture. The rules relating to adoption cannot be governed by considerations of immigration law. Indeed, the rules of adoption are no more part of immigration law than the rules of nature relating to the generation of children are part of immigration law. They are merely part of the background to the law of status.
  25. Adoption involves a change of status. From the earliest times such changes have been subject to legal regulations, because they are of more than private importance. In Roman law adrogatio or the adoption of a person sui juris was subject to regulation at the highest level, precisely because the effective extinguishment of one family by its adoption into another was a matter of public interest. In English law adoption is a pure creation of statute, the earliest such statute being as recent as 1926.
  26. Adoption appears to be regulated everywhere. The greater the effects of the adoption, the more likely the regulation is to be intense. In English law, as in many other countries, the legal consequences of adoption are very substantial, affecting status, marriage, succession and social security benefits. Any country asked to attribute legal consequences to a private arrangement is entitled to enquire into the process of their acquisition, simply because the arrangement is not a natural, but purely a legal process.
  27. There is no jus gentium or natural law right to adopt or be adopted, and no jus gentium or natural law right to have the rights which in a particular state accrue from adoption. There can be no "human right" to enjoy in any particular state the consequences of adoption, unless the adoption is one recognised as such in that state.
  28. Mr Gill's argument that the Immigration Rules and other provisions relating to immigration law should be read as if they permitted an Indian adoption to be recognised as an adoption for immigration purposes would not necessarily do applicants any favours, precisely because adoption is not a matter of immigration law and has effects which go well beyond immigration law. As the title of the Adoption (Designation of Overseas Adoptions) Order 1973 indicates, it is not legislation about immigration: it is legislation about adoption. If Mr Gill's arguments were to be accepted, and the appellant were to be granted a visa as the adopted child of the sponsors, she would have her visa, and would no doubt be granted admission: but that would not be sufficient to make her the adopted child of the sponsors. On arrival she would not be treated as their child, because India is not a designated country. Although she had obtained her visa, she would be the sponsors' child for no other purposes unless and until they adopted her in a form recognised in English law. The Immigration Rules cannot properly be segregated from the general law for the purpose of attack on their rules on adoption: on the contrary, the Immigration Rules are, so far as we can see, constructed in such a way as to be consistent with the rest of English and United Kingdom law on the effects of overseas adoptions. They need to be coherent, because otherwise the person might be treated as a child of the family for immigration law purposes but not otherwise; or vice versa. Mr Gill asserts that there is no rational basis for treating India differently from the countries that are on the list of designated countries: he provided no arguments in support of that assertion. As we understand it, the position in India, Pakistan and Bangladesh is that adoption is regarded as a private arrangement between families, with no public effects or need for public scrutiny. In the absence of evidence we can take no firm view on the issue, but we incline to the view that, if that is so, it would be a proper reason for exclusion from designation.
  29. It follows from what we have said above that nobody is entitled to say that an adoption is entitled to worldwide recognition in each individual state simply because it is an adoption recognised by the laws of some other state or the customs of some other culture. As the effects of adoption vary from state to state, there is nothing surprising, or wrong, or disproportionate, or irrational in saying that the legal requirements for adoption in the state in which the adoption is asserted must be met before the adoption will be recognised there. Nobody is entitled to say "I have adopted (or been adopted) according to my rules; therefore you are obliged to recognise the adoption as entirely valid under your rules". Unless an Indian adoption can be found to be subject to the same requirements and the same intentions, and to have the same effects as an adoption in the United Kingdom, there would appear to be no reason why it should be treated as though it were a United Kingdom adoption. And if it is not to be treated in general as a United Kingdom adoption, there is no reason why it should be treated as a United Kingdom adoption for the purposes of the Immigration Rules. The truth of the matter is that adoption means different things in different countries. The fact that the same word is used does not mean that the effects are, or ought to be, the same.
  30. Paragraph 316A, to which Mr Gill did not refer us, but on which we sought submission at the hearing, is the complement to paragraph 310. It is headed
  31. "Requirements for limited leave to enter the United Kingdom with a view to settlement as a child for adoption".

    The limited leave obtained under that paragraph can mature into indefinite leave to remain under paragraph 311 in due course. The purpose of paragraph 316A is in part to make provision for claimants coming from countries whose adoptions are not recognised in the United Kingdom. Paragraph 316A enables such individuals to be brought to the United Kingdom with a view to being adopted according to United Kingdom law. The requirements are more onerous than those of paragraph 310 appear to be on their face: but there is no reason at all to suppose that the requirements for securing an adoption in a country whose adoptions are recognised by the United Kingdom are in substance more onerous than those for securing an adoption in the United Kingdom. Paragraph 316A was introduced on 2 October 2000, no doubt in the light of the coming into force of the Human Rights Act 1998 on that day; but it has subsequently been amended in order to comply with The Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, to which both the United Kingdom and India are parties.

  32. If the effect of the Immigration Rules' incorporation of the Adoption (Designation of Overseas Adoptions) Order had been that a person from a country not designated in that Order had no access to adoption recognised in the United Kingdom (because an adoption in his own country would not have effect as such for any United Kingdom purpose) that would be a serious matter. As Mr Gill reminded us, in Re J [1998] INLR 424, the Immigration Rules were described as "hopeless" in that they offered nothing to the claimants, who in that case were from Pakistan. The Immigration Rules have, however, been amended a number of times since the decision in Re J. One of the amendments is the introduction of paragraph 316A. It may well be that paragraph 310 taken on its own would offer the appellant nothing: but there is no reason to take it on its own. The Immigration Rules must be seen as a whole.
  33. Similar consideration to those in Re J were the subject of the judgment of Hodgson J in R v AIT ex parte Tohur Ali [1987] Imm AR 189, Hodgson J had to consider whether an unreported Tribunal decision, Sunah Bi (3132), was correctly decided. In Sunah Bi the Tribunal had held that "without any legally recognisable adoptive process" individuals claiming to have a relationship by adoption could not fall within those requirements of the Immigration Rules (then HC 169) relating to parents and children. In holding that Sunah Bi was not correctly decided, the learned Judge said this at p193:
  34. "I also bear in mind the fact that in Islamic law there is no 'legally recognisable adoption process' . If, therefore, the Sunah Bi construction is correct, a huge number of would be immigrants would be excluded from the provisions in Rule 50 relating to adoption."

    He went on to hold that paragraph 50 needed to be interpreted in a wider sense than the Tribunal had allowed in Sunah Bi.

  35. It is probably fair to say that Hodgson J's statement about Islamic law, adopted as it was from one single introductory (albeit authoritative) source, was a little sweeping. The Hanafis interpret the Koranic prohibition as meaning that no adopted child has the duties of a natural child or inheritance rights from its adoptive parents, but allow adoption subject to those restrictions. The Malikites allow inheritance rights to be created by adoption, and it is said that some tribes of Southern Palestine allow what might be regarded as "true" adoption. Be that as it may the interpretation adopted by Hodgson J is not open to us. The present formulation of the Immigration Rules makes it clear that adoption is to bear a specific legal meaning for the purposes of the Rules. As we have shown above, the position of those who have not yet been adopted in accordance with that definition is ameliorated by paragraph 316A.
  36. We appreciate that the Rules as they now are make no provision for those individuals who for whatever reason, whether religion, culture or choice, are not to be made the subject of an adoption in which they take all the rights of a natural child. But we would take the view that it is clearly in accordance with public policy to treat those who are not to have the rights of a natural child under the heading of "other relatives" rather than that of "children". We heard no evidence relating to Sikh law in this appeal. The evidence from the sponsors did not suggest that in their case there was any religious objection to a full adoption: they simply preferred to rely, if they could, on the process that had taken place in India.
  37. "De facto" adoption

  38. We turn now to paragraph 309A, which reads as follows:
  39. "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 that child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer or parental responsibility."

    Mr Gill's argument was that paragraph 309A made a substantial breach in the integrity of a system purporting to restrict the recognition of adoptive relationships to those where the adoption was one recognised in English law. It followed, he submitted, that any further restriction was simply irrational: no restriction could be justified once an exception had been allowed. That was the basis of his submission that, correctly interpreted, paragraph 309A permitted the present appellant to be treated for the purposes of the Immigration Rules as the adopted child of these sponsors.

  40. We are unable to accept that argument. Paragraph 309A provides one specific exception to the restrictions on adoptive relationships. It enables, for the purposes of the Immigration Rules only, an adoptive relationship to be created by the parents and the child living together outside the United Kingdom for a substantial period of time. What it does not do, and cannot in our view be interpreted to do, is to remove all the restrictions carefully imposed by other requirements of the Immigration Rules. Mr Gill partly based his argument on the fact that the phrase used for the relationship engendered by the circumstances in paragraph 309A is "de facto adoption". He referred to the fact that "de facto adoption" is the phrase often used of the relationship recognised under former versions of the Immigration Rules, following the judgment of Hodgson J in Tohur Ali. But the mere use of that phrase cannot be taken to import all the old law about what was a "de facto adoption" for the purposes of the Immigration Rules. Paragraph 309A carefully defines what the present Immigration Rules mean by a "de facto adoption", and there is no reason to give that phrase any other meaning for the purposes of those Rules.
  41. There is no doubt that the child who is the subject of a de facto adoption and is admitted as such forms an exception to the system of admission either as an adopted child or as a child for adoption. No doubt that exception is based on the fact that if the requirements of paragraph 309A have been fulfilled, the relationship between parents and child has been genuinely developed and tested in circumstances which, as far as may be, have been removed from any notion of immigration. What Mr Gill would like us to do is to say that because the Secretary of State is prepared to make an exception for this type of relationship, and calls the relationship "de facto adoption", then any other relationship which Mr Gill or anybody else calls "de facto adoption" should be treated as adoption for the purposes of the Immigration Rules. In our view paragraph 309A cannot bear that interpretation.
  42. Singh v Entry Clearance Officer New Delhi

  43. Of the various authorities cited to us, the one we need to mention in particular is Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075. The facts in that case bore some similarity to those of the present case. The question for the Court of Appeal was, however, not primarily whether the appellant should be admitted to the United Kingdom, but whether the Adjudicator had been entitled to find, as she did, that Article 8 was engaged. In dealing with that question the Court based its observations on the Adjudicator's findings of fact (which were not disputed) and rejected the respondent's submissions that family life within the meaning of Article 8 could not arise from an adoption not valid in English law. In reaching a conclusion about the existence of family life it was right to take into account the fact that this was not a case of child-trafficking, and there was some weight to be attributed to the fact that the adoption was valid in India. The Adjudicator had found that there had been "a genuine transfer of responsibility", substantial links in fact between the appellant and the sponsors, and an emotional tie. The Court held that the Adjudicator's conclusions were open to her.
  44. The limit of the decision in Singh v Entry Clearance Officer New Delhi are crucial to its correct understanding. At paragraph [17], Dyson LJ (who gave the principal judgment) said this:
  45. "Subject to the points raised by the respondent's notice, the sole issue that arises on this appeal is whether family life within the meaning of Article 8(1) of the European Convention exists between the appellant and the sponsors."

    The case has, therefore, nothing to say about whether interference with family life would be proportionate. There is no consideration of the Immigration Rules (including paragraph 309A, which postdates the original decision in Singh's case) as a whole, and no consideration of the consequences of the proposed admission of a child who would be regarded as the child of the sponsors for immigration law purposes but not for other purposes. There is, in addition, no consideration of whether the Entry Clearance Officer's decision in accordance with the Immigration Rules was properly subject to reversal on the ground that the appellant's case was "truly exceptional" within the meaning of the decision of the Court of Appeal in Huang [2005] EWCA Civ 105, which postdates the decision in Singh.

  46. In the present case we have been content to assume that "family life" could have existed between the appellant and the sponsors at the date of the decision. The submissions before us, and our discussion, has been concerned with whether, if "family life" were established, the interference with it would be unlawful as disproportionate. We have decided that it would not be. We have not, as a result, needed to consider the question whether "family life" did exist between the appellant and the sponsor at the date of the decision.
  47. (In case any point should be taken on the tense of "exists" in paragraph [17] of the judgments, it should be noted that in Singh it was common ground that the relevant date was the date of the hearing before the Adjudicator. As a result it was possible (see paragraphs [34], [40] etc) to take into account developments since the date of decision. It is not at all clear that the position taken by both parties was correct in law at the time Singh was decided. So far as the present appeal is concerned, s85(5) is the governing provision: the relevant date is the date of the decision, and there is no distinction between "immigration" and "human rights" arguments for these purposes.)
  48. Paragraph 297(i)(f) and Article 8

  49. During the hearing we observed that it appeared to us that the appellant might have been entitled to admission under paragraph 297(i)(f). Provided that other conditions relating to maintenance and accommodation were met, this paragraph permits the admission of a child under 18 who is not leading an independent life, is unmarried and has not formed an independent family unit, if
  50. "One parent of a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care".

    Like paragraphs 316A and 309A, this paragraph provides a reason for not taking individual immigration rules out of context. As it provides, in certain cases, a route for a child's admission, it needs to be considered before any criticism of the Rules as a whole can properly be mounted.

  51. The Rules contain a restriction on the application of paragraph 297. In paragraph 6, the relevant part of which we have set out above, there is a prohibition on applying paragraph 297 to a child who is adopted or de facto adopted and proposes to live with adoptive parents. That restriction does not apply in the present appeal, because paragraph 297 is of relevance only on the basis that the appellant is not to be regarded as the adopted child of the sponsors. She is the female sponsor's niece, and so a relative within the meaning of paragraph 297. We should add that there is in this case not the slightest suspicion in this case that the arrangements are anything other than proper family arrangements made with the consent of the appellant's parents. This is not a case where considerations of trafficking arise.
  52. Mr Petryszyn submitted that paragraph 297(i)(f) was not applicable in the present case, because the circumstances were not serious and compelling. There is no doubt that any appellant would have considerable difficulty in satisfying this requirement of the Rules. There are, however, a number of factors making the present case unusual. First, there is the sponsors' inability to have children and the attempts they have made over a long period of time to have children of their own. Secondly, there is the evidence that it had for a long time been thought that the appellant would be adopted by the sponsors. Thirdly, there is the long history of visits, developing a relationship between the appellant and the sponsors. Fourthly, there is the sponsors' need to leave India immediately after the purported adoption, because of the grave illness and eventual death of the male sponsor's brother. In order to meet the requirements of paragraph 297(i)(f) it is not necessary that the applicant be destitute abroad, but in the present case there was clear evidence that the appellant's parents live in very modest circumstances indeed.
  53. The Grounds of Appeal and the Grounds for Review do not claim that the appellant should be admitted under paragraph 297, although there is some authority (again to be found in Tohur Ali) that that paragraph ought to have been considered in any event. We prefer to approach the matter by a slightly different route. This appeal and the reconsideration of it have been based from the beginning in part on Article 8 grounds. We take the view that, both at the date of the decision and now, by a very narrow margin, the appellant would meet the requirements of paragraph 297(i)(f). We would therefore regard it as disproportionate and hence a breach of Article 8.2, to refuse her admission.
  54. Conclusion

  55. Having reached the view that this appeal should therefore be allowed, we do not need to consider further Mr Gill's arguments relating to irrationality or discrimination. We find that the appellant does not and cannot meet the requirements of the Rules relating to adopted children, but that she is entitled to admission under Article 8 with reference to paragraph 297. On her admission she will not be regarded as the sponsors' child for any purposes; and it will be for the sponsors to establish from time to time, as may be required by any relevant authority, that suitable arrangements for her welfare remain in place.
  56. For the foregoing reasons this appeal is allowed.
  57. C M G OCKELTON

    DEPUTY PRESIDENT

    Date:


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