TY (a minor) v The Entry Clearance Officer in Sheffield

The appellant is a citizen of Jamaica who was born on 2 August 2001. He remains a minor. His sponsor, CM, is his maternal aunt. She is a British citizen and resident in London. She applied on the appellant’s behalf for entry clearance to enable her nephew to join her in the United Kingdom. The application was refused by the entry clearance officer in Sheffield and, on review, by the entry clearance manager. Those decisions were made respectively on 14 October 2015 and 8 August 2016. The appellant appealed on the ground available to him, namely, that the decision was unlawful as incompatible with s . 6 of the H uman R ights Act 1998 and A rticle 8 of the ECHR.

The appellant’s mother died in March 2010 of renal failure . A copy of a death certificate was provided to the Tribunal. The appellant is currently living with his grandmother in Jamaica. She is now 74 years old. The appellant’s grandmother had suffered a stroke and was partially paralysed on the left side as well as having speech and memory impairment. The judge accepted on the strength of the medical evidence that the appellant grandmother would be unable to carry out a role as a parent to a teenage boy.

T he appellant’s father can no longer be traced but took no active part in bringing up the appellant. He disappeared in February 2016 and the Jamaican police suspected that they had discovered part of his body but were unable to identify it positively as the father. The sponsor’s mother and father (the appellant’s maternal grandparents) had been separated for more than 35 years and the sponsor financially supported (and continues to support) both the appellant’s grandmother and the appellant.

The appellant has four siblings in Jamaica. All of them are adult and have left home. There are two older sisters. The appellant’s two brothers , aged 26 and 24 respectively , have never been considered as suitable to look after the appellant during his minority. His two sisters have shown no willingness to do so.

In 2011, s hortly after the dea th of the appellant’s mother, Ms C M commenced adoption proceedings in Jamaica. Jamaica was one of several countries named in the Adoption (Designation of Overseas Adoptions) Order 1973 (‘the designated list’) as they related to adoptions made from 1 February 1973 to 2 January 2014. Such adoptions were recognised in the United Kingdom . On 3 January 2014, the designated list was revoked and replaced by the Adoption (Recognition of Overseas Adoptions) Order 2013 and the 2013 Scottish R egulations. Jamaica was omitted from the list of countries whose adoptions , since January 2014, were recognised in the United Kingdom . Only the c ountries so listed were known as ‘overseas adoptions’.

Th e appellant submitted a Jamaican adoption certificate dated 16 December 2014 as part of her application. By then, this adoption certificate had ceased to be recognised by the authorities in the United Kingdom .

The appellant’s appeal came before First-tier Tribunal Judge S. Taylor on 12 June 2017. The determination was promulgated on 27 June 2017. The First-tier Tribunal J udge found that the appellant could not meet the requirements of the R ules for entry clearance. Having not met them, t he refusal of entry clearance was not an interference with the appellant’s family life sufficient to engage Article 8. He rejected the appellant’s appeal.

Not all foreign adoptions are recognised, that is, have legal effect in the United Kingdom. Sections 66 and 67 of the Adoption and Chi ldren Act 2002 and sections 39 and 40 of the Adoption and Children (Scotland) Act 2007 define the adoptions treated in law as having legal effect in England, Wales and Scotland (termed in the Adoption and Children Act as ‘ Chapter 4 adoptions’ ). These include certain intercountry adoptions:

Where an adoption carried out in accordance with the law and customs of a foreign country is not so recognised, there is a prohibition in bringing the child into the UK except where the Immigration Rules make other provision.

The prohibition is found in s. 83 of the Adoption and Children Act:

In Scotland the prohibition is found in s. 58 of the Adoption and Children (Scotland) Act 2007 and in Northern Ireland by NI SI 144 regs 3 and 4.

By virtue of s.83(2) of the Adoption and Children Act where it is intended the child is to be adopted under a Hague Convention adoption, the prohibition contained within s. 83(1) is expressly excluded . However, the prohibition does apply to all ‘external adoptions’ – defined as an adoption other than a Convention adoption of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is an adoption within the meaning of ACA Chapter 4 (that is a recognised or ‘overseas adoption’) or a full adoption (within the meaning of section 88(3) – that is an adoption by virtue of which the child is treated in law as not being the child of any person other than the adopter(s).)

The Act envisages its provisions being implemented by Regulations which may require a person intending to bring, or to cause another to bring, a child into the United Kingdom (a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and (b) to give the adoption agency any information it may require for the purpose of the assessment.

The Regulations may require prescribed conditions to be met. The principal condition with which we are concerned is the condition to produce a certification from the Secretary of State from the Department for Education ( DfE ) or, in Scotland , from the Scottish Ministers.

It is a striking feature of the scheme created by these provisions that an individual who does not comply with the requirements to engage an adoption agency for a suitability assessment or with conditions imposed under sub-s. (5) commits a criminal offence punishable summarily or on indictment.

It is important to note at this stage that the Home Office in its capacity to regulate the entry of non-nationals in to the UK is not yet involved.

The current version of paragraph 309B – which HC 667 states applies to all applications made on or after 24 November 2016 - is in these terms:

The version of 309B applying to paragraphs 310 or 316A entry applications prior to 24 November2016 - and thus to the appellant T Y - is in these terms:

The exceptions to the prohibition are found in the Immigration Rules which make provision for adopted and adoptive children entering for settlement with their settled parents or entering with temporary leave to await the outcome of an adoption order by a British court or a partner parent’s qualification for settlement. These provisions are found in the Immigration Rules , paras 309A -316F. The Rules make provision for the entry and stay of children adopted via Hague Convention and ‘overseas adoptions’ as well as for those termed ‘ de facto’ adoptions. De facto adoptions take effect for immigration law purposes but are not adoptions under United Kingdom family law and the de facto parents will not have parental responsibility for the children under family law on entry and will need to obtain a family order to have such parental responsibility rights and responsibilities.

The Immigration Rules, Part 8, Family Members, contain the Home Office provisions that reflect the statutory framework set out in the Adoption and Children Act. Paragraphs 297 to 316F concern children.

The more familiar provisions are found in paragraph 297 which, in general, permit a person settled in the UK to seek entry clearance or leave to remain to their minor, dependent child if both parents are settled or being settled in the United Kingdom or where one parent, settled or being settled, has sole responsibility for the child. The provisions are designed to avoid recourse to public funds in both forms. However, paragraph 297 is not limited to parents and their children but also permits a relative to apply for a child to join them in the UK within the terms of paragraph 297 (i) (f):

It hardly needs be said that the ‘ serious and compelling family or other considerations’ presents a high threshold for those parents or relatives who seek to meet the requirements of paragraph 297. For our purposes, we are, of course, considering the situation of a relative. The purpose of making reference to paragraph 297 is because it was through the mechanism of this provision that the First-tier Tribunal Judge came to determine the appeal and to dismiss it .

In contrast, the provisions relating to adoptions which are not otherwise recognised in the United Kingdom is through the operation of paragraph 316A:

As will have become immediately apparent, the paragraph 297 threshold (‘ serious and compelling family or other considerations which make exclusion of the child undesirable ’ ) is lacking and there is, instead, the alternative requirements of the appellant /sponsor establishing (a) the inability of the current carer to care for him, (b) the genuine transfer of parental responsibility to the prospective parent or parents (c) the breaking of ties with his family of origin and (d) the prospective adoption in the United Kingdom in accordance with the law relating to adoption in the United Kingdom, (an adoption of convenience being excluded).

The Entry Clearance Officer refused entry clearance to the a ppellant on the grounds that

there was no evidence to connect the a ppellant as the son of the deceased DM ;

there was no evidence to show that the a ppellant’s grandmother was unable to provide for his care ;

t here wa s no evidence to show that the a ppellant’s father consented to his adoption.

It is apparent that e a ch of those challenges has been success fully refuted by the appellant . The birth certificates of the a ppellant’s and his mother, DM , as well as that of the sponsor, CM were before the First-tier Tribunal Judge. A medical report was provided in evidence before the First-tier Tribunal Judge. A letter from Jamaica’s Child Development Agency dated 30 January 2013 confirmed that the father consented to the adoption and the police report dated 12 June 2017 confirmed that the father was missing, efforts to locate him were futile and the investigation into his disappearance is continuing. Ms Cronin noted that as the father was not named on the appellant’s birth certificate, he does not have parental responsibility under English family law. His consent to the English adoption is not , therefore, required.

The documentary evidence before the First-tier Tribunal Judge established the appellant countered each of the Entry Clearance Officer ’s stated reasons for refusal.

CM began the adoption process in 2011 when the appellant was 12 (and , at which time, Jamaica was on the designated list made under the 1973 Adoption Order) ; first in the UK where, after a detailed home study report and adoption agency panel decision, the DfE approved and certified her adoption proposal on 4 March 2014; then in Jamaica where the appellant ’s f ather consented to the adoption on or about 30 January 2013 and , after repeat ed home study investigations , the Spanish Town magistrate’s court made the adoption order on 16 December 2014. According to Jamaican law, CM is the appellant’s parent. In English law she is not his parent as the adoption is not an ‘overseas adoption’ and thus is not recognised. This, as we have pointed out , is the combined effect of the Adoption and Children Act 2002 and the Adoption (Recognition of Overseas Adoptions) Order 2013.

The evidence presented was that his grandmother carer was medically unfit and unable to continue his care; the grandmother’s poor health and disability was confirmed by the Chief M edical O fficer at the SM N Medical centre, Dr Nesbeth who stated that the appellant’s 74 year - old grandmother is ‘a known diabetic and hypertensive ’ ; has had a stroke which has left her ‘partially paralysed’; her speech is slurred, her memory ‘very poor’ and ‘she is not cognizant or coherent enough to care, monitor or supervise a teenage boy’. The doctor state d that the grandmother herself requires a carer - ‘ that she can no longer care for anyone, especially a teenage boy who needs guidance and supervision ’.

CM was the appellant ’s sole carer; she spoke to him each day; checked on his homework; supported him financially and sent him food and clothes. This is the effect of the answers she gave in interview, prior to the refusal, on 26 June 2015. She gave details concerning her immigration history, her and the appellant ’s family circumstances and the appellant ’s schooling . S he talks to him each day about ‘his homework and things like that’; sends money (£100 or £200) each month for the appellant and food and clothing barrels at least twice a year. This evidence was not contested by the Entry Clearance Officer , Entry Clearance Manager or the Presenting Officer or First-tier Tribunal Judge on appeal.

The appellant’s siblings had shown no interest in him and had taken no steps to assume responsibility towards him.

The error in the F irst-tier Tribunal J udge ’ s determination was his failure to apply the effect of the Adoption and Children Act 2002 and the process of re-adoption in the United Kingdom which is permissible pursuant to the A doptions with a Foreign Element Regulations 2005 and paragraph 309B of the I mmigration R ules. It is not altogether surprising that the judge fell into this error and the purpose of this determination is to set out the relevant provisions in order to provide the se provisions with a greater currency. In particular, the F irst-tier Tribunal judge confused the very distinctive roles played by paragraphs 310 and 316A of the Immigration Rules. The sponsor had been vetted and approved as the applicant ’ s adopt er by the accredited adoption agency, the British Association of Adoption and Fostering ( BAAF) , and the Department for E ducation .

The error was compounded by the unfortunate submission made by counsel appearing on behalf of the appellant that the appellant did not meet the requirements of paragraph 316A. Whilst this renders the determination of the First-tier Tribunal J udge readily understandable, it does not render it lawful , since Counsel’s concession cannot obviate the judge’s duty to apply the law correctly, wittingly or unwittingly. The concession does not, of course, bind either Ms Cronin or the Upper Tribunal.

A major plank of the submissions made by Ms Cronin is the weight to be attached to the assessment provided by the approved and accredited United Kingdom adoption agency which is the cornerstone of the Secretary of State’s Certificate of Eligibility. The report itself (the BAAF Home Study report) was and remains confidential to the adoption proceedings. It was not , and will not , be made available to the Tribunal. However, its positive conclusion resulted in the DfE’s Certificate of Eligibility. More importantly, as the report is directed towards an assessment of the suitability of the sponsor to adopt the appellant, weight has to be given to the inference that the proposed adopter is suitable. This will be a factor in the consideration of whether adoption is in the child’s best interests.

It is for this reason that the process of checks and requirements merits consideration. We have set out the relevant provisions in the Adoptions with a Foreign Element Regulations 2005/392, as an annex to this determination. It is only necessary to provide a brief summary of their contents. Pursuant to reg. 4, prior to the child’s entry into the United Kingdom, the prospective adopter must , before visiting the child in her country of origin, notify the adoption agency of the details of the child to be adopted; visit the child; provide the adoption agency with any information and reports received from the relevant country of origin, both before and after, the visit; have discussions with the adoption agency and must accompany the child on entering the United Kingdom. It is easy to see why these steps are deemed necessary. These are requirements imposed upon the prospective adopter.

There are also requirements imposed upon the adoption agency , including the writing of the report. These are found in the Adoption Agencies Regulations 2005/389 (as amended) which are also reproduced in the Appendix. The agency must also obtain a written report from a registered medical practitioner about the health of the prospective adopter, obtain written reports of each of the statutory interviews with persons nominated by the prospective adopter to provide personal references, contact the local authority for information about the prospective adopter which may be relevant to his suitability and, if the agency considers it necessary, obtain personal references from the prospective adopter’s former spouse, civil partner or partner.

The agency’s writ ten plan, written in consultation with the prospective adopter, must map out the procedure for assessing the prospective adopter’s suitability. The detailed contents of the report are set out in reg. 30. This material is then conveyed to the adoption panel whose function is to make a recommendation to the agency as to whether the prospective adopter is suitable to adopt a child. In considering what recommendation to make, the adoption panel may request additional relevant information from the adoption agency and obtain legal advice. Before making any recommendation, the adoption panel must invite the prospective adopter to attend a meeting of the panel. There is scope for the prospective adopter to apply to the Secretary of State for a review by an independent review panel.

Once this procedure has been followed, and the adoption agency has received the panel’s recommendation that a prospective adopter is suitable, the material is then sent to the Secretary of State including the record of the proceedings of the adoption panel, its recommendation and the reasons for its recommendation and, where there h as been a review, the relevant material generated by that review.

There are also provisions within the regulations imposing a requirement to provide counselling, information and suitable preparation for the adoption. The preparation includes the provision of information to the prospective adopter about a range of material considerations and skills which are necessary for an adoptive parent.

In Scotland, the Adoption Recognition of Overseas Adoptions (Scotland) Regulations 2013 and the Adoption and Children (Scotland) Act 2007 provide that , if approved by the adoption agency , the application and supporting documents are passed to the Scottish government’s Intercountry Adoption (ICA) team which checks that the material complies with the relevant United Kingdom , Scottish and adoptee ’ s home country legislation. The application will then be sent to an independent social worker to ensure that the ‘Home Study’ assessment has been carried out properly. Once the application is deemed complete and all supporting documents are in place, the ICA team, acting on behalf of Scottish ministers, attaches a Certificate of Eligibility to the prospective adopters.

This summary of the detailed regulations imposed upon the prospective adopters, the accredited adoption agency, the adoption panel and those involved in preparing the case for the Certificate of Eligibility demonstrate the nature and scope of the enquiries made and the decision-making process of the adoption agency. The Certificate of Eligibility must be seen as the definitive outcome of that process which exceeds the ability of either the Home Office or the Immigration and Asylum Tribunal to form its own judgement upon the matters which are the subject matter of the report from the adoption agency and the Certificate of Eligibility.

Nevertheless, paragraph 316A imposes yet further requirements which may not be the same considerations as the adoption agency or the DfE is required to assess. It is, however, very likely that the requirements of the Immigration Rules have been touched upon in the adoption panel’s assessment. For example, sub-paragraph (viii) of paragraph 316A requires that the appellant will be adopted in the United Kingdom in accordance with the law relating to adoption in the United Kingdom which must necessarily include the work of the adoption agency and the DfE . Further, in the same sub-paragraph, an adoption of ‘ convenience arranged to facilitate the child’s admission to the United Kingdom ’ is prohibited. However, it seems unlikely that the assessments made by the agency and the adoption panel will not have considered whether the adoption is genuine and not one of convenience.

Similarly, the requirement in paragraph 316A(vi) that the adoption is due to the inability of the original parent or carer to care for the child and, therefore, a genuine transfer of parental responsibility to the prospective adopter is likely to have featured in the adoption agency’s report on suitability and the Certificate of Eligibility.

We note that the requirement in paragraph 316 A (vii) that the child ‘ has lost or broken or intends to lose or break his ties with his family of origin ’ will be most readily apparent when it is intended that his family of origin cease to have contact with him. However, we would not construe this as requiring a complete cessation of contact. In a case such as this, where the grandmother is incapable of looking after her teenage grandson, it is inconceivable that this should require her to have no further contact. Similarly, whilst the child’s adult siblings are not participating in his up-bringing, we do not regard it as necessary to establish that the ties of kinship must be broken completely before entry clearance will be permitted. The words of paragraph 316A(vii) must therefore be read as envisaging the breaking-off of the existing arrangements for the child’s care. The expression ‘ has lost or broken or intends to lose or break his ties with his family of origin ’ contemplates a fundamental change in the arrangements for the child’s care so as to exclude a situation where the existing arrangements will continue in practice as before but with only a nominal alteration effected by the adoption. However, it must be construed purposively so as not to defeat the aim of the law relating to adoption and the Immigration Rules which contemplate the grant of entry clearance for the purpose of adoption.

The above is consistent with, and derived from, the decision of the Immigration and Asylum Tribunal in VB v Entry Clearance Officer, Ghana [2002] UKIAT 1323, a decision of its then President, Collins J, paras. 13 to 15.

In his determination, the First-tier Tribunal Judge commenced his findings by stating in paragraph 10:

This paragraph displays a misunderstanding of the circumstances in which a child may be admitted to the United Kingdom for the purposes of adoption. It is, of course, true that Jamaica was not and is not a party to the Hague Convention. It is also true that the adoption affected by CM in accordance with Jamaican law is not an ‘overseas adoption’ recognised by the United Kingdom. The fact that such an adoption has taken place, however, does not operate as a bar to the appellant satisfying the requirements of paragraph 316A which was the reason advanced by the judge for stating that the requirements of paragraph 316A were not met.

It is also clear that, as the judge record s in paragraph 11 of the determination , the submissions made by the appellant’s representative that the arrangement with the sponsor amounted to a de facto adoption were also misplaced.

Further, the judge appears to have misunderstood the significance the assessment made by the adoption agency. In paragraph 8 of the determination, the judge records :

We consider that this suggests the First-tier Tribunal considered the accredited UK adoption agency’s function was to provide evidence in support of the Jamaican adoption. The Judge did not, therefore, engage with the process under which the adoption agencies report was directed towards the UK government through the medium of the DfE certifying CM as eligible to adopt the appellant.

For the reasons we have stated, whilst it is understandable why the First-tier Tribunal Judge was confused as to the relevance of the adoption agency’s report and the Certificate of Eligibility since these matters were not brought to her attention, this does not operate to prevent the determination being legally flawed. Inevitably, once the requirements of the Immigration Rules had not, according to the First-tier Tribunal, been met, the Article 8 claim was bound to fail.

It is, perhaps regrettable that the misunderstanding has gone beyond the First-tier Tribunal. In the Rule 24 response, the Specialist Appeals Team opposed the appellant’s appeal. The response pointed out that the judge was guided by the legal submissions of the appellant’s representative, the judge having been informed that the appellant conceded his case under paragraph 316A. It further alleges that the Judge was bound to accept such a submission and not go behind it. We reject that submission. It is of course for the Judge to apply the law and the concession made as to the law applicable under paragraph 316A was legally flawed. Such a legal flaw as this cannot be remedied by concession.

The response makes a further serious error. The writer states :

In our judgement, the determination was fatally flawed by applying the incorrect - and different - part of the Rules. Paragraph 316A is not ‘ essentially concerned ’ with the same issue at all. It is not concerned with serious and compelling family circumstances making exclusion undesirable.

Based on what we consider to be an unlawful approach adopted by the Secretary of State in the Rule 24 response, it is unsurprising that the respondent adopted the judge’s finding that there was no interference with family life as it would continue on the same basis that it has since its inception.

We are bound to question what the Secretary of State and the First-tier Tribunal considered to be the proper and suitable outcome. It appears to have been contemplated that the child should remain with his partially paralysed grandmother whose inability to look after him was not challenged. Assuming that it was not considered appropriate that the appellant should become feral, the underlying assumption must be that the child should live with one or other of his adult siblings, none of whom had, on the evidence, taken steps to assume any responsibility towards him, two of whom were his elder brothers aged 2 6 and 24 and two of whom were his elder sisters whose circumstances had neither been examined nor the subject of any evidence. We consider that such a dismal outcome should at least have sounded alarm-bells.

Thankfully, Mr Duffy did not take the same view as that adopted in the Rule 24 response. He did not materially challenge the submissions made by Ms Cronin. In these circumstances, we conclude that the First-tier Tribunal made a material error of law and that its determination should be set aside. We re-make the d ecision allowing the appeal of T Y by our finding that the appellant met the requirements of the Immigrati on Rules. We consider that a decision made by the respondent that runs counter to the Immigration Rules in the circumstances of this appeal engages Article 8 and amount s to a breach of it , see for example Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 and Ahmadi & Anor, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 1721 in which the Courts have found family life to exist as between prospective adopters and adoptive children and that the obligation to respect family life requires not only that a State refrains from interfering with existing family life but may also entail s a positive obligation to permit family life to develop.

We conclude:

The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued.

The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it.

Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted.

The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility.

We are satisfied that all of the requirements of paragraph 316A have been met. There has never been an issue as to many of them. Thus, the requirement s of age, dependency and the absence of any recourse to public funds ha ve each been met. We are also satisfied that the evidence fully established CM having sole responsibility because of the grandmother’s inability to provide appropriate care for T Y. The process adopted by CM has been a genuine transfer of responsibility in circumstances where there has been, and is intended that there will be, a fundamental change in the ties with the appellant’s family of origin, notwithstanding the fact that members of his family are not expected to sever their links with him. The legal process adopted by CM has carefully followed the law relating to adoption in the United Kingdom . The adoption is the result of the circumstances in which TY now finds himself in Jamaica and is not an artificial device to facilitate admission. Accordingly, we allow the appeal under Article 8.

If much of the contents of this determination appears to have striking similarities with the contents of Ms Cronin’s written submissions as they appear in her note to the Tribunal, her skeleton argument and her grounds of appeal, this is not coincidental. We are indebted to the assistance she has provided in guiding the Tribunal through adoption law in the United Kingdom .

The Judge made an error on a point of law and we re-make the decision in the following terms:

the app ellant satisfies the requirements of the Immigration Rules;

accordingly, the appeal is allowed on human rights grounds .