R v Immigration Appeal Tribunal ex parte Tohur Ali
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE WOOLF |
| Judgment Date | 18 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1218-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1307 |
| Date | 18 December 1987 |
[1987] EWCA Civ J1218-3
Lord Justice May
Lord Justice Balcombe
and
Lord Justice Woolf
87/1307
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr.Justice Hodgson
Royal Courts of Justice
MR. M.KENT (instructed by The Treasury Solicitor) appeared on behalf of the Appellant Respondent.
MR. A.RIZA (instructed by The Manchester Law Centre) appeared on behalf of the Respondent Applicant.
This is an appeal from a decision of Hodgson J. of 19th December 1986 quashing a decision of the Immigration Appeal Tribunal of 2nd April 1985, and remitting the case to the tribunal for further consideration in the light of the learned judge's judgment. The appeal tribunal had in their turn dismissed an appeal by an applicant, the respondent to the instant appeal, from a decision of an adjudicator of 10th April 1984 which in its turn dismissed an appeal from the refusal of an entry clearance officer of 29th August 1983 to grant the respondent's application for entry clearance to settle in the United Kingdom as the dependent adopted son of the sponsor, Hushar Ulla. By this appeal the Immigration Appeal Tribunal seeks to have the decision of the learned judge set aside and its own decision of 2nd April 1985 reinstated.
The immigration rule upon which the original application for entry clearance was based is rule 50 of H.C. 169. So far as relevant this reads:-
"…children under 18, provided that they are unmarried, are to be admitted for settlement:
(f) if one parent or a relative other than a parent is settled…in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable-for example, where the other parent is physically or mentally incapable of looking after the child—and suitable arrangements have been made for the child's care.
In this paragraph 'parent'…includes an adoptive parent, but only where there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child, and the adoption is not one of convenience to facilitate the child's admission".
The respondent was born in Bangladesh on 2nd February 1969. The sponsor was born on 18th March 1955. He and the respondent are related: the sponsor's father was the nephew of the respondent's real father. In 1970 the sponsor arrived with his parents for settlement in the United Kingdom. He returned to Bangladesh for the first time in 1975 and his evidence to the adjudicator in these proceedings was that at that time the respondent's mother had disappeared and that his father had become a beggar and was dying. In her Determination and Reasons the adjudicator said:
"The father, when dying and being distressed for the future of his children, extracted a promise from the sponsor that the latter would look after the appellant and on the death of the father the appellant was taken into the sponsor's family home. At the time the sponsor says he regarded it as a bit of a joke since he himself was only 20 years of age, was about to marry and regarded himself as being too young to become a father. It seems to have been a spur of the moment decision, probably taken to console a man about to die. The appellant was thus taken into the sponsor's family home which in fact was the sponsor's father's home and he was looked after by the sponsor and his parents. Since the sponsor's father was the head of that household and that the sponsor was a young single man who in a somewhat lighthearted way brought the boy into that household it is more probable that the responsibility for the appellant was a joint family one rather than the responsibility of the sponsor and more akin to the fostering of a child rather than an adoption de facto by the sponsor".
The adjudicator then quoted from the appeal tribunal's decision in Sunah Bi (1984) TH/108424/83 as follows:
"While it is unclear to what extent English law will require the foreign adoption recognised by or indeed an order made in the domicile of all the parties, it is clear that without any legally recognisable adoptive process there is no basis for recognising such an 'adoption'. Further, to base considerations of entry to the United Kingdom on a de facto adoption seems to us to pose an almost insuperable task for entry clearance officers. A de facto equivalent of the legal concept of 'adoption' is difficult to envisage when the legal concept by definition confers rights and duties which the 'de facto' situation would not.
We do not see the Immigration Rules as based on the maintenance of a 'family unit' de facto but as normally requiring a family relationship according to the personal law of the parties".
In the light of that decision the adjudicator said that she could not accept counsel's submission on the [respondent's] behalf for the reason that the lex loci did not recognise adoption. She went on to say that in any event the facts before her did not on the balance of probabilities show a de facto adoption by this sponsor but a situation more akin to fostering of this boy by a joint family. This last echoed the finding of fact in the entry certificate officer's explanatory statement that he had not been satisfied that the respondent had been legally adopted by the sponsor or that there had been a genuine transfer of parental responsibility.
The matter then went before the Immigration Appeal Tribunal. In their Determination and Reasons they set out the facts and previous history of this application. They were referred to a decision of Woolf J. (as he then was) in the Divisional Court of 23rd July 1984 in R. v. The Secretary of State for the Home Department, Ex parte Narinder Kaur. The learned judge's judgment in that case contained this passage:-
"…There is no doubt that under the immigration rules which were in force at the relevant time, there is provision for adoptive children to obtain settlement in this country, and it is conceded—in my view rightly—by Mr. Moses on behalf of the Home Secretary that even though there has been no legal form of adoption procedure, it is possible for a parent to adopt a child and for that child to be treated as the adoptive child of the parents".
This dictum was, of course, much in point in the circumstances of the instant case. Nevertheless it was submitted to the Immigration Appeal Tribunal chat it was obiter because the question before the learned judge on that occasion had been whether the material applicant was or was not an illegal entrant. The question whether or not he would have been admissible as an adoptive child, although one aspect for consideration, would not have been conclusive of the application. The immigration Appeal Tribunal therefore considered that they were entitled to regard the passage from the judgment which I have just quoted as obiter.
"We therefore come to the conclusion that we can properly consider that we are not bound by the judgment in the case of Narinder Kaur—a conclusion we reach with relief in view of the near-impossibility (referred to in Sunah Bi) of determining whether, in the context of extended families as is usual on the Indian sub-continent, there has in fact been a de facto adoption in any given case.
Furthermore we consider that the adjudicator's finding of fact that what had happened did not amount in any event to a de facto adoption was adequately supported by the evidence before her.
For both these reasons, therefore, this appeal is dismissed".
In his judgment presently appealed against Hodgson J., after stating the facts, referred to the decision in Sunah Bi and to the immigration Appeal Tribunal's treatment of it and of the dictum of Woolf J. in the case of Narinder Kaur. He then posed the fundamental question which arises on this appeal, namely whether the adjective "adoptive" in rule 50 necessarily connotes a relationship resulting from a "legally recognisable adoptive process".
The learned judge then reminded himself of the words of Lord Roskill in Alexander v. The Immigration Appeal Tribunal [1982] 2 A.E.R. 766 at 770:-
"These rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed".
He referred to the fact that in Islamic law there is no "legally recognisable adoptive process", nor does the word "adopt" in its ordinary dictionary meaning denote any such process. Indeed until 1926 there was no legally recognisable adoptive process known to English law.
In these circumstances the learned judge concluded that in its natural meaning and in the context of rule 50 itself, which deals with the children of parents, stepparents, parents of illegitimate children and relatives other than parents and is concerned with child dependency, he should construe "adoptive" in its wide sense. He was not prepared to limit it to cases where there had been some "legally recognisable adoptive process".
He then proceeded to consider the wording of various parts of the Act to which I shall have to return later and such authority as there is on this point, to most of which I have already referred. Having done this he reiterated the conclusion to which he had come earlier and held that even though there may have been no legally recognisable adoptive process, there can and will be a de facto adoption sufficient for the purposes of rule 50 where there has been a permanent assumption by the adoptor of all parental duties towards the adopted person. It was this situation of permanency, he...
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