AA (Somalia) v Entry Clearance Officer [SC]
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Hughes,Lord Wilson,Lady Hale,Lord Reed |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] UKSC 81 |
| Date | 18 December 2013 |
| Court | Supreme Court |
[2013] UKSC 81
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Manjit Gill QC
S Chelvan
(Instructed by South West Law)
Respondent
James Eadie QC
Jonathan Hall
(Instructed by Treasury Solicitors)
Heard on 21 November 2013
Lord Carnwath (WITH WHOM Lady Hale, Lord Wilson, Lord Reed AND Lord Hughes AGREE)
Para 352D of the Immigration Rules provides for the grant of leave to enter to the child of a parent who has been admitted to the UK as a refugee. The issue in this case is whether the Para extends, or should be treated as extending, to a child for whom a family member has taken parental responsibility under the Islamic procedure known as "Kafala" (described in the agreed statement of issues as "a process of legal guardianship akin to adoption").
The facts are fully set out in the judgment of Davis LJ in the Court of Appeal. The following is a sufficient summary for present purposes.
i) AA was born in Somalia on 21 August 1994. Her family was "torn apart" by events in Somalia. Her father was killed in the mid 1990s.
ii) An elder sister, Ms A, married Mohamed on 10 January 2001. In 2002 she came home to find that he, her daughter Fadima, and her step-daughter Amaani had been abducted. She eventually left Somalia and came to the United Kingdom in October 2002. She was later granted indefinite leave to remain, on compassionate grounds. Her husband had in the meantime escaped from his abductors and had gone to live elsewhere in Mogadishu.
iii) AA became separated from her mother and other siblings during the fighting. Around the end of 2002 she went to live with Mohamed, Fadima and Amaani and was accepted as a family member.
iv) In October 2007 Mohamed left Somalia, and came to the United Kingdom in November 2007, where he was reunited with Ms A. He was granted asylum on 21 July 2008. The three girls – AA, Fadima and Amaani – were left with a maternal aunt in Mogadishu.
v) At the end of 2008 the three girls went to live with neighbours. Contact with Ms A and Mohamed was renewed in March 2009. Applications for entry into the UK were made for all three girls. Entry clearance was granted to Fadima and Amaani, who came to the United Kingdom on 22 January 2010. (I shall refer to them for convenience, and without legal implications, as AA's "adoptive siblings.") It was refused for AA, who remained in Addis Ababa pending her appeal.
vi) Her appeal was heard in the First-tier Tribunal on 3 September 2010. Expert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala, a person may become a "protégé and part of the household of an adult"; and that this "only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law" (FTT para 21).
vii) The tribunal allowed the appeal both under para 352D and article 8 of the European Convention on Human Rights, the former on the basis that AA
"falls into a specific category of persons who have been taken into guardianship or the care of others under a transfer of responsibility such that Islamic law would recognise the legal status of the appellant in relation to [Ms A and Mohamed] as their child for all purposes and in the circumstances in which the appellant was an orphan." (para 31)
viii) On 23 May 2011, the Upper Tribunal (Judge Grubb) allowed the Secretary of State's appeal in respect of para 352D, but confirmed the tribunal's decision under article 8. On 14 May 2012 AA was given entry clearance and she arrived in this country on 4 June 2012.
The Court of Appeal accepted that notwithstanding the grant of entry clearance under article 8, the appeal was not academic.
"The answer provided is that if entry is permitted under the Immigration Rules the entitlement of AA to remain thereafter will in effect align with the sponsor's entitlement, whereby indefinite leave to remain can be expected to be granted after the expiry of the five—year period: whereas grant of leave to remain under article 8 is discretionary and not necessarily so linked to the sponsor's position."
In this court, Mr Gill has provided further details of the differences, legal and practical, between clearance under the rules and discretionary leave to remain (DLR) under article 8. For example, under policies current at the time a person admitted under article 8 would take longer to reach the point of claiming indefinite leave to remain (ILR) than a person admitted under the rules. Mr Gill submits that DLR status is not easily understood by employers, educational institutions and others with whom the holder will need to have dealings in ordinary life. He pointed to other practical disadvantages, such as in relation to travel documents. Some of his points were contentious. However, it was not in dispute as I understand it that AA's status, following admission under article 8, might be materially less advantageous than that of someone (such as her adoptive siblings) admitted under Para 352D.
The critical provision is Para 352D, in Part 11 of the Immigration Rules which relates to asylum:
"352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant:
(i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and
(ii) is under the age of 18, and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum;…"
The principal issue which arises in AA's case is whether her relationship with her brother-in-law Mohamed can be regarded as that of "the child of a parent" (under (i)). For that it is necessary to turn to the interpretation provision, Para 6, which defines "parent" as follows:
"'a parent' includes:
(a) the stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership;
(b) the stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership and;
(c) the father as well as the mother of an illegitimate child where he is proved to be the father;
(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 a child is the subject of a de facto adoption in accordance with the requirements of Para 309A of these Rules (except that an adopted child or a 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 Paras 297–303);
(e) in the case of a child born in the United Kingdom who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parent(s)' inability to care for the child."
Thus an "adoptive parent" under a "de facto adoption" is included, but subject to the requirements of Para 309A. This is underlined in turn by the definition of "adoption":
"'adoption' unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of Para 309A of these Rules, and 'adopted' and 'adoptive parent' should be construed accordingly."
Para 309A is in Part 8 of the Immigration Rules relating to Family Members (in the particular group relating to children). Its present form dates from 2003. It provides so far as relevant:
"309A For the purposes of adoption under Paras 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-Para (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-Para; 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 the child's parents, since the beginning of the 18-month period, so...
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