Petition Of (first) Emm And (second) Cnm For Judicial Review Of A Refusal By The Secretary Of State For The Home Department To Consider An Application For Leave To Enter As The Child Of A Refugee Pursuant To Immigration Rule 352d
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2016] CSOH 51 |
| Year | 2016 |
| Published date | 01 April 2016 |
| Date | 01 April 2016 |
| Court | Court of Session |
| Docket Number | P790/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 51
P790/15
OPINION OF LORD GLENNIE
In the petition of
(FIRST) EMM and (SECOND) CNM
Petitioner;
for
Judicial Review of a refusal by the Secretary of State for the Home Department to consider an application for leave to enter as the child of a refugee pursuant to Immigration Rule 352D
Petitioner: Bovey QC, Byrne; Drummond Miller LLP
Respondent: Komorowski; Office of the Advocate General
1 April 2016
Introduction
[1] The petitioners are the adopted daughters of F, a person recognised by the Secretary of State as a refugee. They were lawfully adopted by F in the Democratic Republic of Congo (“DRC”) in 2008, some three years before F’s flight from the DRC to the UK in 2011. The DRC is not a signatory to the Hague Adoption Convention.
[2] On 17 February 2014 the petitioners applied on line for entry clearance in order to join F in the UK and remain with him there. That application was confirmed in a letter of 18 February 2014. In that letter, their applications were presented as “applications for family reunion in terms of para 352D of the Immigration Rules”. That paragraph sets out the requirements to be met by a person seeking leave to enter or remain in the UK in order to join or remain with “a parent” who is currently a refugee in the UK granted status as such under the Immigration Rules. They were given appointments to be interviewed at the British Embassy in Kinshasa, DRC. According to the averments in the petition and contemporaneous correspondence from those acting on behalf of the petitioners, when they attended the British embassy on that date they were “turned away” without their application being considered. That description of events (“turned away”) is not accepted, but it is not disputed that their application was rejected without being considered on its merits.
[3] The reason for that is that the Entry Clearance Officer (“ECO”) at the British Embassy in Kinshasa and/or the Secretary of State had formed the view, later expressed in the decision letter of 20 June 2014, that their application was not properly made under para 352D, since that paragraph did not apply to family members who were neither biological children of the refugee nor “adopted children” as defined in that paragraph, that is to say children adopted by procedures recognised by the UK (i.e. adopted in Hague Adoption Convention countries) or adopted de facto in terms of para 309A of the Immigration Rules to which I shall refer.
[4] This matters because in terms of the Immigration and Nationality (Fees) Regulations 2013 (“the Fees Regulations”), made in the exercise of the powers conferred by section 51 of the Immigration, Asylum and Nationality Act 2006, fees are payable in respect of applications in connection with immigration and nationality. Where those Regulations specify a fee which must accompany an application, “the application is not validly made unless it is accompanied by the specified fee”. In terms of para 5.2 of Table 5 in Schedule 2 to the Regulations, no fee is payable in respect of an application made under paras 352A to 352FI of the Immigration Rules. If, as the Secretary of State contends, the application was not properly to be considered as an application under para 352D, then the application is not fee exempt, a fee should have accompanied it and, absent that having happened, the application was not validly made – hence its rejection rather than a refusal on the merits.
[5] I should note that, subsequent to the application being made in February 2014, there was correspondence between those acting on behalf of the petitioners and the ECO in Kinshasa concerning the possibility of a fee waiver being granted. This appears to have been raised by the ECO. It was made clear to the petitioners that the ECO had no discretion to waive such fees, and the matter was referred to the Referred Casework Unit in the UK. In consequence, the formal response on behalf of the Secretary of State to the petitioners’ application (in the letter of 20 June 2014) took the form of a consideration and ultimate refusal of an application or deemed application for waiver of the fees. However, nothing turns on this for the purposes of the present petition. Waiver of the fees having been refused, the application was considered as not validly made and was rejected.
[6] The consequence of the application being rejected without having been considered on its merits, as opposed to being refused, is that there has been no “immigration decision” capable of being appealed under section 82 of the Nationality, Immigration and Asylum Act 2002 (and c.f. section 88A). Had there been an immigration decision capable of being appealed, the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) would have been entitled to consider not only whether the petitioners were entitled to succeed in their claims under para 352D but also whether the refusal of entry was, in all the circumstances, a breach of articles 8 and/or 14 ECHR. Absent a “refusal” of the claim under para 352D, the matter cannot be appealed to a tribunal. The petitioners contend that there is no other paragraph of the Immigration Rules which more closely fits their circumstances; and that, accordingly, if this application is rejected without a decision on its merits, there is no other route open to them to pursue their claim.
[7] The petitioners seek reduction of the decision by the Secretary of State that their application did not fall to be considered under para 352D and/or declarator that their application was made under that paragraph.
The relevant paragraphs of the Immigration Rules
[8] So far as material to the issues arising in this petition, para 352D[1] is in the following terms:
“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 underlying issue in this case is whether the petitioners qualify under sub-para (i) of para 353D as “the child of a parent”, namely F, it being accepted that F is currently a refugee granted status as such under the Immigration Rules in the UK.
[9] The term “a parent”, as used in the expression “the child of a parent” in sub-para (i), is defined in para 6 of the Immigration Rules, so far as material, as follows:
“’a parent’ includes: … (d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of these Rules …”
Para 6 also contains a definition of “adoption” which confirms the reference to para 309A:
“’adoption’ unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of paragraph 309A of these Rules, and ‘adopted’ and ‘adoptive parent’ should be construed accordingly.”
[10] Para 309A deals specifically with de facto adoptions. It provides, so far as material, as follows:
“309A For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:
(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad … for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period mentioned in that sub-paragraph; and
(b) during their time abroad, the adoptive parent or parents have:
(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
(ii) have assumed the role of the child’s parents, since the beginning of the 18-month period, so that there has been a genuine transfer of parental responsibility.”
Application of those Rules to the situation of the petitioners
[11] I did not understand it to be in dispute that, although F’s adoption of the petitioners in 2008 was valid according to the law of the DRC, it does not entitle the petitioners to claim to be regarded as children of F for the purposes of para 352D(i) of the Immigration Rules. This is so for two reasons: first, because the DRC is not party to the Hague Adoption Convention, so an adoption under the law of the DRC is not recognised by the United Kingdom; and, second, because, although the adoption in the DRC could in principle be regarded as a “de facto adoption”, in order to satisfy the requirements of para 352D(i) it must be a de facto adoption in accordance with the requirements of paragraph 309A, sub‑para (b)(i) of which requires the adoptive parent to have lived with the child for the 12 months “immediately preceding” the child’s application for entry clearance, a requirement which is impossible to meet since F has been a refugee in the UK since 2011 while the petitioners were left behind in the DRC when he left. It is unclear whether it is accepted that the petitioners lived with F as a family for at least 18 months, in fact for nearly three years, i.e. from the time of their adoption in 2008 until F sought refugee status in the UK in 2011, but this...
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