Mohamoud (paras 352D and 309A – de facto adoption)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge P R Lane,Senior Immigration Judge Gill |
| Judgment Date | 21 September 2011 |
| Neutral Citation | [2011] UKUT 378 (IAC),[2011] UKUT 409 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 21 September 2011 |
[2011] UKUT 378 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Senior Immigration Judge Gill
For the Appellant: Mr K Alim, of Step Stones Visas
For the Respondent: Ms F Saunders, Senior Home Office Presenting Officer.
Mohamoud (paras 352D and 309A — de facto adoption) Ethiopia
For the purposes of paragraph 352D of the Immigration Rules, an adopted child can include a de facto adoption under paragraph 309A but a parent who is a refugee will normally not be able to meet the residence and care requirements of paragraph 309A.
The background to this appeal is as follows: On 15 February 2010, Master Mohamoud applied for entry clearance together with a Mr. Ali Mohamed Wadour, in order to join Maryan Mohamoud Jimale (the Sponsor), who was granted refugee status in the United Kingdom on 6 September 2007. Mr. Wadour, born on 9 September 1965, applied for entry clearance as the spouse of the Sponsor. Master Mohamoud applied for entry clearance as the child or adopted child or nephew of the Sponsor. Their applications were refused by the Entry Clearance Officer on 5 March 2010. Both appealed.
The two appeals were heard before the Immigration Judge Vaudin d'ImÉcourt, who allowed the appeals. The appeal of Mr. Wadour was allowed under paragraph 352A of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the Immigration Rules). The appeal of Master Mohamoud was allowed under paragraph 352D and on human rights grounds (Article 8 ECHR).
The Entry Clearance Officer did not challenge the Immigration Judge's decision to allow the appeal of Mr. Wadour but he sought permission to challenge his decision to allow the appeal of Master Mohamoud under paragraph 352D and under Article 8. I will hereafter refer to the Respondent as the ECO and Master Mohamoud as Mohamoud.
Ms. Saunders informed me that she did not intend to pursue the challenge to the Immigration Judge's decision to allow Mohamoud's appeal on human rights grounds (Article 8). Mr. Alim did not pursue any appeal under the Immigration Rules based on Mohamoud being the nephew or step-nephew of the Sponsor. Accordingly, the sole issue before me is whether the Immigration Judge materially erred in law in allowing Mohamoud's appeal under paragraph 352D. This turns on the question whether he qualified under paragraph 352D as a “ child” of the Sponsor.
Mohamoud's case, as presented to the Entry Clearance Officer, was that he was the Sponsor's nephew or step-nephew (according to the answers to questions 7.3 and 7.4 of the visa application form) or her adopted child (according to a letter from Pinidiya Solicitors dated 20 January 2009).
Before the Immigration Judge, it was argued on Mohamoud's behalf that he was “at the very least a de facto adopted child of the family” and that his appeal should be allowed under Article 8. However, as I have said above, the Immigration Judge allowed his appeal under paragraph 352D of the Immigration Rules as well as Article 8.
The relevant provisions are paragraphs 309A, 352D and the definition of “ parent” in paragraph 6, which I will now quote:
“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.
“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) ……,
(c) ……,
(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 (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 paragraphs 297-303);
(e) [not relevant].
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 (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-paragraph (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-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.
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 has been granted asylum in the United Kingdom are that the applicant:
(i) is the child of a parent who has been granted asylum in the United Kingdom;”
The Immigration Judge's determination records that the letter from Pinidiya Solicitors states that Mohamoud was adopted by the Sponsor from the time he lost his parents in the civil war as a child and that the Sponsor said in answer to question 5.1 of her screening interview in connection with her asylum claim that she had one child. At question 5.2 of her screening interview, she was asked the question: “ Have you had responsibility for any other children? For examples nieces, nephews etc” and she replied “ No”. At the hearing before the Immigration Judge, the Sponsor said that Mohamoud was her nephew (paragraph 7 of the determination). She said her brother died in 1996 and that she has taken care of Mohamoud since he was one year old and that he regarded her as his mother. She gave evidence of her contact with Mr. Wadour and Mohamoud and of monies remitted to them.
The ECO was not satisfied that Mohamoud was related as claimed to the Sponsor. The Immigration Judge gave his reasons for allowing Mohamoud's appeal at paragraphs 14 to 17, which read:
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“14. With regards to the second appellant I was satisfied that the appellant qualified as a de facto adopted child in that I was satisfied that at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents had 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 material in that sub-paragraph and (b) during their time abroad, the adoptive parent or parents have:
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(i) lived together for a minimum period of eighteen months, of which the twelve months immediately preceding the application for entry clearance must have been spent living together with the child; and
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(ii) have assumed the role of the child's parents, since the beginning of the eighteen month period, so that there has been a genuine transfer of parental responsibility.
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15. I was satisfied that the second appellant had been a member of the first appellant and sponsor's family since he was aged 1. I was satisfied that both his parents were deceased and that he has been brought up by the first appellant and his wife until the sponsor left Kenya in 2005. I was satisfied that he remained a family member of the first appellant's family through this time. I am satisfied that he is under the age of 18 and I am also satisfied that he has not been living an independent life.
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16. Given that I was satisfied that the second appellant was an adopted child of the sponsor and her husband, I am satisfied also that he qualifies for entry clearance under the provisions of paragraph 352D in as much as I do not distinguish between an adopted child and a child for the purpose of paragraph 352D and construe that paragraph as applying equally to an adopted child.
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17. Alternatively, if I am wrong regarding my interpretation of paragraph 352D of the Immigration Rules, I find that for the purpose of Article 8 the second appellant has family life with his adoptive father in Ethiopia and I also find that he was a family member of the sponsor's family prior to her departure and that she has remained caring for that child and that she has continued to have family life with him. I find that to exclude him from entry clearance would breach his rights to respect for his family life with his parents or adoptive parents and would breach the sponsor's right to family life with him and the first appellant's family life with him applying the decision in the case of Beoku-Betts -v- SSHD [2008] UKHL 39. In the alternative, therefore, I would also allow this appeal under Article 8.”
The grounds of application for permission to appeal contend that the Immigration Judge erred in law in finding that Mohamoud was a de facto adopted child under paragraph 309A because (it is contended) the requirement in paragraph 309A(b)(i) could not be met. This, in turn, was because the “ adoptive parent” (the Sponsor) had not been living with Mohamoud for 12 months immediately preceding the application.
At the hearing before me, Mr. Alim reminded me that the Sponsor arrived in the United Kingdom in June 2005, having already entered into a marriage with Mr. Wadour on...
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