![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SK ("Adoption" not recognised in UK) India [2006] UKAIT 00068 (01 September 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00068.html Cite as: [2006] UKAIT 68, [2006] UKAIT 00068 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
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
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
The facts
"Adoption" in the Immigration Rules
"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.
"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)"
Discussion
"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.
"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.
"De facto" adoption
"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.
Singh v Entry Clearance Officer New Delhi
"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.
Paragraph 297(i)(f) and Article 8
"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.
Conclusion
C M G OCKELTON
DEPUTY PRESIDENT
Date: