AA (Somalia) v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Toulson,Lady Justice Arden |
| Judgment Date | 01 May 2012 |
| Neutral Citation | [2012] EWCA Civ 563 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 2012 |
| Docket Number | Case No: C5/2011/2102 |
[2012] EWCA Civ 563
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Toulson
and
Lord Justice Davis
Case No: C5/2011/2102
Mr Manjit Gill QC and Mr S. Chelvan (instructed by South West Law) for the Appellant
Mr Jonathan Hall (instructed by Treasury Solicitors) for the Respondent
Hearing date : 2 April 2012
Introduction
This appeal from a determination of the Upper Tribunal promulgated on 23 rd May 2011 raises an issue of interpretation of paragraph 352D of the Immigration Rules (HC 395). The issue involves consideration of the interaction (if any) between paragraph 352D, paragraph 6 and paragraph 309A of the Immigration Rules in determining the entitlement to entry clearance of a child seeking entry into the United Kingdom as a de facto adopted child of a sponsor who has previously been granted asylum as a refugee.
A further issue is whether the respondent was precluded, by a policy alleged to be contained in a letter dated 6 th August 2007, from refusing to treat the appellant as entitled to entry clearance.
The appellant AA was represented on the appeal by Mr Manjit Gill QC and Mr S. Chelvan. The respondent was represented by Mr Jonathan Hall.
The background facts
The facts as found by Immigration Judge Hall in the First-tier Tribunal were to this effect.
AA was born in Somalia on 21 st August 1994. She had six sisters and one brother. One of her sisters was Ms A who was born in Mogadishu on 1 st October 1979. She married a man called Mohamed on 10 th January 2001.
Sadly, the family was torn apart by events in Somalia. The father of AA and of Ms A, and one of the sisters, had been killed in the mid 1990s. In 2002 Ms A came home to find that her husband (Mohamed) and her daughter Fadima and her step-daughter Amaani had been abducted. She could not locate them. Ms A eventually left Somalia and came to the United Kingdom in October 2002. Subsequently she was granted indefinite leave to remain, on compassionate circumstances grounds.
Her husband, Mohamed, had in the meantime escaped from his abductors and had gone to live elsewhere in Mogadishu. As for AA, it was said that she had herself become separated at around that time from her mother and other siblings during the fighting. She was in due course put in touch with Mohamed by neighbours and at around the end of 2002 went to live with him and Fadima and Amaani. Mohamed left Somalia in October 2007 and arrived in the United Kingdom in November 2007. He was reunited with Ms A. He was granted asylum on 21 st July 2008. The three girls – AA, Fadima and Amaani – were left with a maternal aunt in Mogadishu.
At the end of 2008 the three girls went to live with neighbours. Thereafter, in order to escape the fighting, they travelled to Addis Ababa and were initially cared for by a former neighbour. Contact with Ms A and Mohamed was renewed in March 2009. Applications for entry into the UK thereafter were made on behalf of the three girls. Entry clearance was granted to Fadima and Amaani, who travelled to the United Kingdom on 22 nd January 2010. But entry clearance in respect of AA was refused by decision dated 5 th October 2009 and she remained in Addis Ababa. Most recently she has been living there with a carer, as we were told.
The appeal from the decision of the Entry Clearance Officer eventually was the subject of a substantive hearing in the First-tier Tribunal on 3 rd September 2010. Ms A gave evidence. Mohamed also gave evidence, in accordance with a short witness statement, to the effect that from 2002 until he left Somalia in 2007 AA had come to live with him on a permanent basis. He was responsible for her (as well as Fadima and Amaani) and he came to look upon her as his own daughter. It was ultimately not disputed at the hearing that AA had lived with Mohamed as a family member in that period.
There was expert evidence before the Tribunal in the form of written statements from Dr Virginia Luling (whose principal field of study was South Somalia) and from Dr Shah, a senior lecturer in law at Queen Mary College, University of London and a specialist in Islamic law. Neither statement was challenged by the Home Office Presenting Officer and the respondent put in no expert evidence of his own. The expert evidence was adduced on behalf of AA with a view to establishing that AA primarily was the de facto adopted child of Mohamed (as well, of course, as being his sister-in-law through marriage).
Dr Luling, in the course of her report, stated that there was no concept of formal adoption, in the western sense, under Sharia Islamic law because of the fundamental principle of blood lineage. Children can be part of a family unit in all senses but will never share the lineage. As she put it: "Thus the people who assume the care of a child are its legal guardians rather than adoptive parents in the European sense. The relationship can rather be considered a transfer of responsibility…." She said that in Somalia many households contain children of different parentage, particularly in modern times with so much family disruption and loss of life. She said that raising orphan children is highly recommended in Islam.
In the course of his report, Dr Shah confirmed that there was no adoption as such in Islamic law but said that there was a system "akin" to it. He referred to a legal institution known as Kafala whereby an individual may become a protégé (as he put it) and be part of the household of an adult. He said that the system only falls short of full adoption in that the individual can have no right of inheritance under Islamic law by reason of the primacy given to blood lineage. There was no formal state mechanism giving effect to Kafala but the operative law was essentially a fusion of Somalian customary law and Islamic law. He said that force of circumstances prevailing in Somalia make it "all the more likely that the members of a kin group rely on informal mechanisms to adjust their family lives". He further stated his view that improvised mechanisms may extend to adoption "even though it may be frowned upon from the perspective of the religious law of Islam".
It was common ground before us first that AA's relationship with Mohamed fell within the concept of Kafala and second that AA had not been adopted by means of any legal process recognised by the United Kingdom as adoption.
The proceedings below
In the First-tier Tribunal, Immigration Judge Hall by his determination promulgated on the 8 th September 2010 summarised the factual background and assessed the evidence. Having done so, he concluded that AA was the child of a parent who had been granted asylum in the United Kingdom. He considered that AA was clearly a family member of the family unit of Mohamed and that the expert evidence indicated 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". In the alternative, the Immigration Judge in any event concluded that refusal of entry was, in the circumstances, in breach of Article 8 of the Convention; and so allowed the appeal on that ground also.
In the Upper Tribunal, on the respondent's appeal against those conclusions, Senior Immigration Judge Grubb took a different view on the first ground. On the appeal it was argued on behalf of AA that Mohamed was to be regarded as the (adoptive) parent of AA. Senior Immigration Judge Grubb noted the concession of (different) counsel then appearing for AA that Mohamed did not meet the requirements of being a de facto adoptive parent under paragraph 309A of the Immigration Rules. The argument nevertheless was, in the light of the expert evidence, that Mohamed was AA's "parent" for the purposes of paragraph 352D. The Senior Immigration Judge rejected that. He took the view that a transfer of parental responsibility was not enough in itself; that it was far from clear on the evidence that a relationship (Kafala) variously described by the experts as "akin to adoption" or "guardianship" connoted recognition in Islamic law of the relationship of parent and child; and that authority was also against the argument. He thus concluded that the Immigration Judge had erred in his interpretation of the phrase "child of a parent" as used in paragraph 352D. However, the Senior Immigration Judge upheld the determination of the First-tier Tribunal on the Article 8 ground. The appeal was therefore dismissed.
Given that the appellant succeeded on the Article 8 ground (and the respondent has not sought further to challenge the findings and conclusion reached) it may be queried what the purpose of this further appeal is. This was a matter raised by Sir Stephen Sedley in considering the grant of permission to appeal. 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 5 year period: whereas grant of leave to remain under Article 8 is discretionary and not necessarily so linked to the sponsor's position. Permission to appeal thus was...
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