Children Adoptions and Inter Play Between The Immigration Rules and EU law: Exclusion of Children From The UK, Denial of EEA Family Permit Where The Adoption Is Not Recognised Under UK Law

If an adoption order  is not recognised as valid in the United Kingdom, on the basis of current caselaw,  obtaining an adoption order outside the UK with a view for a settled  or EEA national sponsor to   apply for entry clearance for the adopted child under either the Immigration  Rules  or EEA law  means that the defect will be fatal to the application. Where such an application fails,  it also  seems simply  not   enough  to argue  family life arguments  or the  bests of the child in the alternative.

The Court of Appeal in MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department [2008] EWCA Civ 38 considered  the  issue of adoption   having regard  to the Immigration Rules and Article 8 of the ECHR.

Recently, the Court of Appeal  in SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109 (04 November 2015) has had regards to adoption  in the context  of EEA law, the immigration rules and Article 8 of the ECHR.

None of the two decisions   give hope for success where there are defects in the  underlying adoption,   if not   recognised in the United Kingdom.

RELEVANT NATIONAL LEGISTATION- THE IMMIGRATION RULES

There are four different avenues under the Immigration Rules   via  which a child abroad who is stated either to have been adopted abroad, whether de facto, or to be intended to be adopted in the UK  can proceed in order to enter the UK.

  • PARAGRAPH 309A – DEFACTO ADOPTION :

For the purposes of adoption under paragraphs 310-316C of the Immigration Rules, a de facto adoption shall be regarded as having taken place if:

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) and must have cared for the child.

During their time abroad, the adoptive parent or parents  must have:

  • 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
  • have assumed the role of the child’s parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.

PARAGRAPH 309B- INTER COUNTRY -ADOPTIONS

Paragraph 309B of the Immigration Rules  states that inter-country adoptions which are not a de facto adoption under paragraph 309A are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. As such all prospective adopters must be assessed as suitable to adopt by a competent authority in the UK, and obtain a Certificate of Eligibility from the Department for Education, before travelling abroad to identify a child for adoption. This Certificate of Eligibility must be provided with all entry clearance adoption applications under paragraphs 310-316F.

  • PARAGRAPH 310- ADOPTION IN ACCORDANCE WITH A DECISION TAKEN BY THE COMPETENT ADMINSTRATIVE 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 :

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 or being admitted for settlement in the United Kingdom are that he is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances;

    • both parents are present and settled in the United Kingdom; or
    • both parents are being admitted on the same occasion for settlement; or
    • one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
    • one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
    • one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
    • one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement 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; or
    • in the case of a de facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purposes of settlement; and -is under the age of 18; and
    • – is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
    • can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and – 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
    • -is the subject of a de facto adoption; and
    • was adopted at a time when: -either or both adoptive parents were settled in the United Kingdom; and
    • -both adoptive parents were resident together abroad; or
    • has the same rights and obligations as any other child of the adoptive parent’s or parents’ family; and
    • 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; and
    • has lost or broken his ties with his family of origin; and
    • was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and
    • holds a valid United Kingdom entry clearance for entry in this capacity; and
    • does not fall for refusal under the general grounds for refusal.
  • PARAGRAPH 316A: ADOPTION IN THE UK BY PROSPECTIVE PARENTS IN ACCORDANCE WITH THE LAW RELATING TO ADOPTION IN THE UNITED KINGDOM:

The requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted (which, for the avoidance of doubt, does not include a de facto adoption) in the United Kingdom are that he is seeking limited leave to enter to accompany or join a person or persons who wish to adopt him in the United Kingdom (the “prospective parent(s)”), in one of the following circumstances:

    • both prospective parents are present and settled in the United Kingdom; or
    • both prospective parents are being admitted for settlement on the same occasion that the child is seeking admission; or
    • one prospective parent is present and settled in the United Kingdom and the other is being admitted for settlement on the same occasion that the child is seeking admission; or
    • one prospective parent is present and settled in the United Kingdom and the other is being given limited leave to enter or remain in the United Kingdom with a view to settlement on the same occasion that the child is seeking admission, or has previously been given such leave; or
    • one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement, which is also on the same occasion that the child is seeking admission; or
    • one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and has had sole responsibility for the child’s upbringing; or
    • one prospective parent is present and settled in the United Kingdom or is being admitted for settlement on the same occasion that the child is seeking admission, and there are serious and compelling family or other considerations which would make the child’s exclusion undesirable, and suitable arrangements have been made for the child’s care; and
    • is under the age of 18; and
    • is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
    • can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and
    • will have the same rights and obligations as any other child of the marriage or civil partnership; and
    • is being adopted due to the inability of the original parent(s) or current carer(s) (or those looking after him immediately prior to him being physically transferred to his prospective parent or parents) to care for him, and there has been a genuine transfer of parental responsibility to the prospective parent or parents; and
    • has lost or broken or intends to lose or break his ties with his family of origin; and
    • will be adopted in the United Kingdom by his prospective parent or parents in accordance with the law relating to adoption in the United Kingdom, but the proposed adoption is not one of convenience arranged to facilitate his admission to the United Kingdom.
  • PARAGRAPH 316D- LEAVE TO ENTER AND ADOPTION UNDER THE HAGUE CONVENTON:

The requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted in the United Kingdom under the Hague Convention are that he:

  • is seeking limited leave to enter to accompany one or two people each of whom are habitually resident in the United Kingdom and who wish to adopt him under the Hague Convention (“the prospective parents”);
  • is the subject of an agreement made under Article 17(c) of the Hague Convention; and
  • has been entrusted to the prospective parents by the competent administrative authority of the country from which he is coming to the United Kingdom for adoption under the Hague Convention; and
  • is under the age of 18; and
  • can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and
  • holds a valid United Kingdom entry clearance for entry in this capacity.

RELEVANT EEA LAW

Articles 2 and 3 Directive 2004/38/EC, (the Citizenship Directive) respectively provide :

“2(2) ‘family member’ means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership…

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)…

3(2) Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence…;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”

 Paragraph 7 of the 2006 EEA Regulation provides:

“… [F]or the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner…”

Paragraph 8 of the 2006 EEA Regulation provides:

“(1) In these Regulations ‘extended family member’ means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

(a) the person is residing in a country other than the United Kingdom in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household…”

Paragraph 12 of the EEA Regulations 2006 provides (in essence) for the issue of an EEA family permit to persons who qualify under the Regulations.

SOME RELEVANT POLICY GUIDANCE:

Entry Clearance Guidance “EEA family permit: EUN02 “ published on 13 November 2013 currently provides:

“EUN2.13 Can adopted children qualify for an EEA family permit?

The UK currently recognises adoptions that have taken place legally in the majority of EEA Member States (as they are either included on the designated list or because they are Hague Convention states). Switzerland is also on the designated list of recognised countries.

The exceptions to this are Hungary, which has signed the Hague Convention but not yet acceded to or ratified it and Liechtenstein (because it is not on the designated list, nor has it signed the Hague convention). In some (very rare) circumstances adoption orders made in Convention countries may not automatically be recognised in the UK. This is because only adoptions made as ‘convention’ adoptions are recognised (based on Article 17(c) agreements). In general, however, a child legally adopted in one of the recognised Member States should qualify for an EEA family permit provided that they meet the relevant criteria.

If the UK does not recognise a country’s adoption orders an EEA national would need to re-adopt the child in the UK (or in any country whose adoption orders are recognised by the UK) in order for the relationship to gain legal recognition in the UK. This would apply if, for example, an EU national adopted a child in a country not on the designated adoption list”. https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02#eun213-can-adopted-children-qualify-for-an-eea-family-permit

A further Entry Clearance Guidance “Children: SET07 Published 14 November 2013”, provides

18.3 SET7.18.3 Types of adoption and who decides the application

The ECO should decide into which of the following categories the application falls and, therefore, who deals with the application:

  • Children adopted in the UK or overseas in a country whose adoption orders are recognised – the Designated List (This refers to the list of countries that are named on the Adoption – Designation of Overseas Adoptions – Order 1973. The UK automatically recognises an adoption made in any of the countries named on the Designated List).The Designated List(the list is currently being reviewed by the Department for Education, under the provisions of the Adoption and Children Act 2002. Further information on the progress of the review will appear on the Department for Education website).For decision at Post under Rules paragraphs 310 – 314
  • Children who have been adopted in a Hague Convention country For more information on the Hague Convention:What is the Hague Convention?List of countries who have brought the Hague Convention into force.The ECO should note that the UK will not recognise all adoptions, be they domestic or inter-country, made in these contracting states. Only adoptions made and certified between two contracting States under the terms of the Hague Convention will be recognised as legally valid. The ECO must also note that the list of countries is subject to change as additional countries sign up and ratify or accede to the Convention or there are other changes. It is therefore important to visit the Hague Convention website to obtain the most up to date list.When looking at the lists on the Hague website, the most important column to note is that showing ‘EIF’ (Entry into Force). If there is no date in this column, the country will not be eligible to make Adoption Orders under the terms of the Convention. (At the time of writing, the Republic of Ireland and the Russian Federation are on the list but have not yet brought the Convention into force and so cannot make Hague Convention Adoption Orders.)For decision at Post under Rules paragraphs 310 – 314
  • Children coming for adoption in the UK, including where a child has been adopted overseas but in a country whose orders are not recognised For consideration under the Rules paragraph 316A. Mandatory referral to the Departments responsible for adoption in England, Scotland, Wales and Northern Ireland (see SET7.21 for referral requirements).
  • Where an adoption is considered, de facto, to have already occurred For decisions under the Rules paragraph 309A and the relevant sub-paragraphs of Rules paragraph 310

https://www.gov.uk/government/publications/children-set07/children-set07#set717-what-is-the-position-for-children-of-polygamous-marriages

The Guidance further contains useful clarifications as regards the following;

  • 18 How do adopted children qualify for settlement?
  • 1 SET7.18.2 Home Office Adoption leaflet8.1 Adoption is a complex subject.
  • 18.3 Types of adoption and who decides the application
  • 18.4 The effect of overseas adoptions in UK law
  • SET SET7.19.2 What documentation is required for an Entrustment Order7.19 Entrustment orders- also contains a link to latest list of Hague Convention signatory and acceeded countries.
  • 19.3 What are the immigration requirements for an Entrustment Order under the Hague Convention?
  • 19.4 What does ‘habitually resident’ mean?
  • 20 Interim adoption orders
  • 21 How children adopted in designated countries qualify- SET7.21.1 What documentation is required?
  • 22 What happens for children coming for adoption?
  • SET SET7.22.3 Documents to be produced7.22.2 Entry clearance for children nearing the age limit for adoption
  • 22.4 Criteria
  • SET 7.22.5 Deferral requirements for children coming for adoption
  • 22.6 Interviews
  • 23.1 What is a ‘de facto’ adoption?
  • 23.2 Circumstances in which a de facto adoption may arise
  • 23.3 How is the existence of a de facto adoption established?
  • 23.4 Requirements for EITHER limited leave to enter with a view to settlement OR indefinite leave to enter where a de-facto adoption has taken place
  • 23.5 Refusal

RELEVANT CASELAW

  • MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department [2008] EWCA Civ 38 And The Immigration Rules:

The appellant was a girl who was born on 10 May 1994,  aged 13  at the time of the hearing.  She was  a citizen of India and had  always resided there. She wished  to come to live in the U.K to live with  Mr and Mrs D, who  were  of Indian ethnicity but were settled in England.  The child was adopted in India in circumstances which made  the adoption valid under Indian law, however the adoption was  not recognised as valid in England and Wales.

The Court set out the four different avenues for entry to the U.K provided by the Rules in respect of a child adopted or intended to be adopted , however, it was  conceded on the Appellants ‘s behalf that none of those four avenues  were  open to her. The argument on the appeal was  reduced to one, namely that, irrespective of the Rules, it was an infringement of the appellant’s rights under Article 8 of  ECHR  for the entry clearance officer  to refuse to grant entry clearance to her.

By way of background, in June 2002,  the appellant’s father, who had been married to her mother, died; and by then her mother was in poor health. At around that time,  Mr D assumed responsibility for payment of the appellant’s school fees, as a weekly boarder, and of medical expenses referable to her mother. On 2 September 2002 there was a formal ceremony in India in which the appellant’s mother agreed to her adoption by Mr D. Her mother symbolically placed her in Mr D’s lap in the presence of witnesses. On 31 July 2003 the Adoption Deed was executed in India. It purported to confirm Mr D’s adoption of the appellant and recited that on 2 September 2002, before a gathering of friends and relations, he had taken her as his adoptive daughter. Mrs D was a party to the deed and assented to it. The appellant’s mother was also a party to the deed dated 31 July 2003 and applied her fingerprint to it. On 1 August 2003, the deed was duly registered in the District Court, Ludhiana, Punjab, being the court local to the home of Mr and Mrs D in India. The deed dated 31 July 2003, as registered in the local court, fulfilled all the legal requirements set out in The Hindu Adoptions and Maintenance Act 1956, with the result that, according to Indian law, the appellant, at least with effect from 1 August 2003, was no longer the child of her biological mother but was the adopted child of Mr and Mrs D. In January 2004 Mr D applied, as the appellant’s sponsor, for her to be given entry clearance to the U.K. as an adopted child. On 4 April 2004, the appellant’s biological mother  died. Furthermore, in September 2005, there had been proceedings before the Guardian Judge in Ludhiana. The proceedings had resulted in an order dated 19 September 2005. It  was,  an order appointing Mrs D to be the legal guardian of the appellant.

The Court of Appeal referred to paragraph 310 of the Immigration Rules. This required  that the child should have been adopted in accordance with a decision taken by the competent authority or court in the foreign country, “being a country whose adoption orders are recognised by the United Kingdom”.  The Court noted that it was these words which were stated to  preclude the appellant from proceeding down this first avenue. The countries whose adoption orders were  recognised by the United Kingdom for this purpose  were those designated in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973 (S.I. 1973/19), which continued  to have effect as if made under s.87 Adoption and Children Act 2002. India had not been designated as such a country under the order.

The Court then referred to paragraph  309A of the  Immigration Rules and concluded  that the appellant  did not qualify as the subject of a de facto adoption as Mr and Mrs D could  not establish that they lived together in India for 18 months prior to January 2004 and that they lived there together with, and cared for, the appellant for the 12 months immediately preceding January 2004.

The Court then proceeded to consider paragraph  316A  of the immigration rules. This required that the child will be adopted in the U.K. by his prospective parents “in accordance with the law relating to adoption in the United Kingdom”. Having referred to the  other relevant  statutory  in relation to paragraph 316A,  the  Court  stated that their  effect is that if Mr and Mrs D, being British residents, wished to bring the appellant, being habitually resident abroad, into the U.K  for the purpose of adopting her (other than under the Hague Convention ), they were  required, on pain of otherwise committing a criminal offence, to apply in writing to their local authority for an assessment of their suitability to adopt her.  There required  a series of steps to be taken following the application for assessment of suitability, including   that the assessment should prove positive, such to be certified by the Secretary of State. The  Court considered that close to the heart of the  appeal  was  the fact that Mr and Mrs D had  not applied to Coventry City Council for an assessment of their suitability to adopt the appellant. They stated  that they had no interest in securing an adoption order in England and that the lengthy timescale referable to such a process was  inapt to the needs of the appellant to come swiftly to live with them in the UK.

The Court then considered paragraph 3016D and referred to the UK’s ratification in June 2003 of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption dated 29 May 1993. Paragraph 316D of the Rules provides for such a child to be granted limited leave to enter the U.K. with a view to settlement as a child for adoption in the U.K under the Convention.   The Court stated that its  first object, declared in Article 1, is “to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child”. Other articles of the Convention  were stated to create a system for cooperation between  two relevant  states and, in particular, for elaborate enquiries to be made  and for the information thus collected to be exchanged between the two states,  first in State B as to the suitability of the proposed adopters and then in State A as to the suitability of the child for adoption and the collection of all necessary consents. The Court observed that it was  interesting to note that, just as the U.K  ratified the Convention and brought it into force in June 2003, India did likewise in October 2003. The adoption of the appellant in India, however, was effected on 31 July and/or 1 August 2003; it did not purport to be made, and could not have been made, under the Convention. Equally Mr and Mrs D had  shown no inclination since October 2003 to procure an adoption under the Convention, even were it possible to do so. The Court of Appeal was however informed   by  both counsel in the appeal , that, under Indian law, there might now be no facility for a Convention adoption in that an adoption valid under that law already exists.

  • SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109 and the Immigration Rules and EU Law:

The Court was of the view that  the case concerned the interpretation of Articles 2 and 3 of Directive 2004/38/EC (the Citizenship Directive).  It was also  noted that Paragraphs 7 and 8 of the  2006 EEA Regulations gave  effect to Articles 2 and 3 of the Directive respectively.

The respondent was a child, Algerian national,  born on 27 June 2010. She had applied  for an entry clearance to come to the United Kingdom as a family member of an EEA national exercising free movement rights. The EEA nationals  were known as Mr and Mrs M,  both French, of Algerian origin, and  had  been living in the UK for many years.  Mr M had a permanent right of residence in the UK..  In 2009 the couple both travelled to Algeria in order to undergo assessment for their suitability to be legal guardians under the kafalah system, the Islamic alternative to adoption.

Mr and Mrs M obtained the necessary approval and in June 2010 they were told that the Appellant had been born and abandoned by her birth mother at hospital. Mr and Mrs M applied to be her legal guardians and after the three month period stipulated by Algerian law (in which birth parents are able to reclaim their child) she was handed over to Mr and Mrs M. On the 28th September 2010 they attended court in order to sign the necessary papers, and on the 22nd March 2011 a Legal Custody Deed was issued by the Algerian Courts. In October 2011, having lived with his wife and daughter for just over a year in Algeria, Mr M returned to the UK to resume his full time occupation as a chef. Attempts to bring the Appellant to the UK as a visitor failed.

In May 2012 an application was made on her behalf for a family permit conferring a right of entry as the family member of Mr M. The entry clearance  officer refused the respondent’s application for entry clearance, stating that they were  not satisfied that  the child’s  adoption  was  legally recognised in the UK and therefore not satisfied that under UK law  she was   related as claimed or that the national of whom she  claimed  to be a family member was  a qualified person. It was also concluded that the respondent  child was not a “family member” within paragraph 7 of the Regulations. The entry clearance officer  also observed that no application for inter-country adoption had been made nor had a “Certificate of Eligibility to Adopt” been issued by the Department for Children, Schools and Families, so that the respondent child  was not eligible for entry clearance under paragraph 310 of the Immigration Rules.

On appeal from the Entry Clearance Officer’s decision, the First Tier Tribunal   held  that the respondent did not qualify for an EEA family permit as a family member, extended family member or adopted child of an EEA national. The Tribunal  proceeded to consider whether refusal of the permit would involve a violation of the respondent’s right to respect for family life guaranteed by Article 8 of the European Convention on Human Rights. The First Tier Tribunal considered among other matters that there was nothing to prevent the sponsor complying with the authorities in the UK and obtaining a certificate of eligibility to adopt or obtaining approval from a UK adoption agency as to his suitability.  The Immigration Judge also found  that any interference with Article 8 was  proportionate and lawful and  the appeal was dismissed. On further appeal to it, the Upper Tribunal agreed that the respondent was not a “family member” within the meaning of Regulation 7 of the EEA Regulations. They stated among other matters that  Regulation 7(1)(b) provides that a person shall be treated as the family member of another person if she is a ‘direct descendant’ of his. They did  not find this provision to assist the Appellant. It was noted that it was  agreed that she had not been adopted and it could not  be shown that she was  a direct descendant in any other capacity.

The Upper Tribunal stated that the argument on the appellant’s behalf  that all terms under the  2006 Regulations must be given a purposive interpretation,  were agreed with by the Upper Tribunal  but not so as to strain the plain and ordinary meaning of the word beyond recognition. The term ‘direct descendant’ could not  apply to the child who had not been legally adopted.

Although the Upper Tribunal  found that  that the  First Tier Tribunal was right to have rejected any suggestion that the Appellant was a family member under Regulation 7,  they were  not satisfied that adequate consideration was given to whether  the appellant   was  an ‘extended family member’. The Upper Tier Tribunal sought  to re-make the decision to that extent. The Upper Tribunal stated that  the   term must be read to comply with Article 8 ECHR.  The  Tribunal accepted , that the Appellant shared  a family life with Mr and Mrs M.  They considered that it was  difficult to see how, in this instance, the Appellant could  share a family life with Mr and Mrs M but not be considered a ‘relative’.  It  was observed by the Upper Tribunal that may be that there are relationships within the scope of Article 8 whose parties are not ‘relatives’ in the ordinary understanding of the term, however on the facts of the case the Upper Tribunal was  satisfied that the Appellant was  a family member of the sponsors. She had  no other family of whom she was  aware and they, or at least Mrs M, were  the central figures in her life.”

It was the Upper Tribunals treatment of “extended family member”, Regulation 8,  that  provoked the entry clearance officer’s  appeal to the Court of Appeal.  The Court of  Appeal observed that the Upper Tribunal  had in effect accepted,  had certainly not repudiated,  the First Tier’s finding on Article 8, that Article 8 was not violated by refusal of the entry clearance.  That being so, the argument of the entry clearance   officer was  that it was wrong in principle for the Upper Tribunal  to adopt a construction of Regulation 8 of the 2006 Regulations  which, in their view, was required to ensure its conformity with  Article 8 of the ECHR.

It was argued on the Apple ants behalf   that, upon the proper construction of Article 2 of the Directive and Regulation 7, the respondent  child was  on the facts a “family member” of the sponsor; in the alternative, it was argued  that she was  an “other family member” within Article 3 (and therefore an “extended family member” within Regulation 8.

The Court sought  to focus on Article 2 of the Directive. The question  was whether the respondent  child fell  to be treated as a “direct descendant” of the sponsor within Article 2(2)(c). The Court of Appeal   stated  that it was  obvious that  there could be no doubt as to what  was  meant by a natural child, however it was considered  that  adoption, or the creation of analogous relationships, was  subject to different regimes in different States.  The Directive contains  no measure which stipulates what forms of adoption will count for the purposes of the “family member” provisions. There is therefore no rule of European Union law which on its face regulates or prescribes the cases in which a Member State should recognise a foreign adoption (or similar process) relied on to secure entry as a “family member” under Article 2 of the Directive. Accordingly the Member States have made their own arrangements.   The  Court  considered that  it was  beyond contest that the appellant could not  satisfy any of them. The question  was therefore  whether, despite the absence of any EU lexicon to determine what forms of adoption (or analogous relationship) will qualify a child as a “family member” within Article 2, there is some overriding principle of EU law which would nevertheless require that the respondent child  be accepted as such.

The Court of Appeal stated that no such principle has been distinctly identified. It was however observed  that a Member State’s refusal to recognize any form of inter-country adoption would be repugnant to the purposes of the Directive. It  was considered by the Court of   Appeal that the  arrangements made by the UK, and no doubt those of the other Member States, have been arrived at on a principled basis which could not, in  the Court’s  judgment, conceivably be held to violate EU law.

The Court of appeal  made detailed references to the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption, to which all the Member States of the European Union (and many others) are party.   By  reference to the Convention, it was also noted that  signatory states  needed to adhere to  the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his fundamental rights, and to prevent the abduction, the sale of, or traffic in children.

Reference was also made to United Nations Convention on the Rights of the Child (UNCRC) to which, all the EU Member States are party. This provides among other issues that signatory States  ensure that the best interests of the child shall be the paramount consideration and that they shall ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary.

It was however noted by the Court of Appeal  that the UNCRC and the Hague Convention are unincorporated international treaties. They therefore form no part of UK  domestic law, but that  it was  beyond argument that  the UK’s  municipal arrangements for the recognition of inter-country adoptions are intended to reflect and give effect to these obligations owed by the United Kingdom on the international plane.

The Court of Appeal also  referred to the case of MN (India) [2008] EWCA Civ 38.

The Court of Appeal stated that Article 3(5) of the Treaty on European Union commits the EU to contribute to “the protection of human rights, in particular the rights of the child”.  The “rights of the child” are also protected under Article 24 of the Charter of Fundamental Rights. The Commission has issued a “Communication to the European Parliament and the Council on guidance for better transposition and application of [the Citizenship Directive]”.  The Court  however stated that the  document is not, a source of law but that  it is worth noting that after stating that family membership in the direct line “extends to adoptive relationships”, paragraph 2.1.2 proceeds thus: “In implementing the Directive, Member States must always act in the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

The Court of Appeal  considered that given these materials,  the Court of Appeal accepted the Secretary of State’s submission,  that the European legislature cannot have intended that Member States should be required to recognize (for the purpose of the Directive) overseas adoptions as a matter of course, irrespective of the quality, in terms of the child’s interests, of the procedures followed in any particular State. More than this: such a state of affairs would be likely to put Member States in breach of their obligations under the international instruments to which the Court had referred. The Court greatly doubted  whether the terms of the European Communities Act 1972 would have effect to give any such rule the least legal validity in the United Kingdom. There was , however, plainly no such rule.

The result, in the Court of Appeal’s judgment,  was  that the European legislator had  left it to Member States to decide on the terms upon which adopted children will be recognized as “direct descendants” within the meaning of Article 2 of the Directive, and had  done so in the expectation that the international obligations relating to the welfare of children, which all the Member States have undertaken will be respected. The United Kingdom’s rules regarding inter-country adoptions were found by the Court of Appeal to be  a reasonable and proportionate means of giving effect to those arrangements. They were  not remotely inconsistent with any prescription of EU law.

The Court of Appeal therefore concluded that the Respondent child was  not a “family member” within the meaning of Article 2 of the Directive and Regulation 7 of the 2006 Regulations.

ARTICLE 8 ARGUMENTS IN THE ALTERNATIVE

Adoption orders   made abroad may  not be  recognised  in the UK,   however there  may be a need to consider in the alternative  whether the appellant child  satisfies  requirements  other than the immigration rules.

  • MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department [2008] EWCA Civ 38 And Article 8 of the ECHR;

The crux of the argument on  the Appellant’s behalf was  that the evidence before the immigration judge clearly showed that it would be in the best interests of the appellant, and indeed that at the time of the entry clearance officer’s  refusal it had been in her best interests, to come to live with Mr and Mrs D in  UK; that the immigration judge failed to place that feature into the balance; and that, had she done so, she could have concluded only that the interference with the appellant’s family life reflected in the entry clearance officer’s refusal was disproportionate and thus unjustified.

The Court was unable to accept the appellants argument’s. On the Court’s  view, there was good evidence that Mr and Mrs D were well serving the interests of the appellant in India.

The Court considered that  there was no independent evidence that it would conduce to the welfare of the appellant for the present arrangements beneficial to her to be ended and for her to make a new life in the home of Mr and Mrs D in the UK.  No professional appraisal of the home of Mr and Mrs D or, more importantly, of their personalities, relationship and background history, had been undertaken. The appellant herself had not been interviewed; she had not given evidence to the immigration judge; her views had not been collected; her relationship with Mr and Mrs D had not been appraised by any independent observation of her with them; and their proposals for her life, including education, in Coventry and for the maintenance of her ties with India had not been spelt out, let alone subjected to independent scrutiny. In effect none of the professional checks which under UK  law are regarded as elementary to an analysis of whether a child’s interests are served by living as an adopted child in the home of others had been undertaken. Nor are such checks regarded as necessary only in the jurisdictions of the U.K. There lay  the relevance of the Convention. It demonstrated  that elaborate professional enquiries are regarded at an international level as necessary.it was further noted by the Court  that , India itself now subscribed  to the Convention: its subscription suggested  its recognition that, while adoptions within India may still validly take place in the absence of such enquiries, inter-country adoptions at any rate require them to be undertaken.

The Court’s conclusion was  that the availability to the appellant of the avenue provided by paragraph 316A was a relevant consideration for the immigration judge to weigh in her appraisal of proportionality. The degree of weight to be attached to it was a matter for the Immigration Judge  but its relevance was indeed substantial. The welfare of the child was  referred to in  the Immigration Judge’s  decision, both in respect of the care and education of the child in India and by reference to the need for a home study report if it is desired to bring the child to the United Kingdom for adoption purposes. The finding on proportionality was a long way from being perverse. In particular, paragraph 316A  was  a relevant matter, to which the immigration judge was entitled to attach weight, because it provided at least one route to achieving entry to the United Kingdom under the Immigration Rules and was a route available to the appellant. This consisted of making an application for limited leave to enter for the purpose of being adopted. That course required  certain safeguards to be observed, especially, compliance with the legal requirements for an adoption in the United Kingdom. That would include a home study report. That was  an important step intended to ensure that the prospective parents are suitable as parents for the adoption of the child in question. Requiring the appellant to follow that course could  not  in the circumstances of the  case be regarded as inappropriate. It was clearly open to the Immigration Judge to conclude that a refusal of clearance for entry outside the Immigration Rules was proportionate. The Article 8 appeal was dismissed.

  • SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109 and Article 8 of the ECHR:

The Court of Appeal concluded that if  the respondent  was  not a “family member” within the meaning of Article 2 of the Directive, her case could not be saved by appeal to Article 3 and Regulation 8.  In the context of Article 2, the Directive permits the Member States to restrict the forms of adoption which they will recognize by reference to their reasonable apprehension of their international obligations to protect the interests of children. It could not  be supposed that Article 3 then immediately proceeds to undermine or contradict that position by requiring other forms of adoption to be accepted for the purposes of the Directive.

In the Court’s Judgement, the Secretary of State was right to submit that the distinction between “family member” in Article 2(2)(c) and “other family members” in Article 3(2)(a) is not a function of any legal formalities defining the relationship of either group to the EEA national in question, but of the relative proximity of the members of either group to the EEA sponsor. Thus collateral relatives may be included.

The Court stated that the Upper Tribunal considered that the respondent child  must be a “relative” of the sponsor within Regulation 8(2) because she shared a family life with the sponsor and his wife, however that did not reflect, or confront, the structure of Articles 2 and 3 of the Directive. Nor did it give weight to the Directive’s distinct purpose, which is not to promote family life as a self-standing value but,  to strengthen and support “the right of free movement and residence of all Union citizens”.

The Court of Appeal allowed the Entry Clearance Officer’s appeal.

CONCLUSION

The outcome of the  two Court of  Appeal  decisions  appear  at first sight harsh  having regard to the Sponsors who had clearly   formed a substantial relationship with  the affected  children abroad yet were unable to obtain their entry to the UK due to invalidity of the form of adoption of the children. Regardless of the legal intricacies in  the decisions themselves, it is however important to note that as  observed generally  by the Court  of  Appeal  in the case of SM,  there is   no doubt that some adoption regimes may involve abuse of the rights of the children in question.

Whether the application for the adopted child is under EEA Law  or the Immigration Rules, on the basis of the Court of Appeal decisions, it  is important  that prior to  submitting an application for entry clearance,  no matter the  length of the adoption proceedings,   steps be taken  to  ensure compliance with UK  law in relation to that adoption.  Seeking to place  alternative substantial reliance   upon an Article 8 claim   is unfortunately  unlikely to  result in a success outcome having regard to  the reasoning of the Court  of Appeal.

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