Singh v Entry Clearance Officer, New Delhi

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Mr Justice Munby,Lord Justice Chadwick
Judgment Date30 July 2004
Neutral Citation[2004] EWCA Civ 1075
Docket NumberCase No: C4/2004/0176
CourtCourt of Appeal (Civil Division)
Date30 July 2004

[2004] EWCA Civ 1075

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE

IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Chadwick

Lord Justice Dyson and

Mr Justice Munby

Case No: C4/2004/0176

Between:
Singh
Appellant
and
Entry Clearance Officer New Delhi
Respondent

Mr Nicholas Blake QC and Ms Stephanie Harrison (instructed by TRP Solicitors) for the Appellant

Mr Neil Garnham QC and Mr Tim Eicke (instructed by The Treasury Solicitor) for the Respondent

Lord Justice Dyson

Introduction

1

The central issue raised by this appeal is whether "family life" within the meaning of article 8(1) of the European Convention on Human Rights ("ECHR") has been established between the appellant, a 6 year old Indian boy, and his adoptive parents who are settled in the UK. The adoption is valid according to the law of India, but is not recognised by the UK. The issue arises in the context of the refusal of the appellant's application for entry clearance to join his adoptive parents (to whom I shall refer as "the sponsors") in this country. It is said on behalf of the appellant that the refusal violated his article 8 rights. Although there is a substantial body of Strasbourg jurisprudence as to the meaning of "family life", no decision of our domestic courts has been cited to us in which the issue has been discussed.

The facts

2

The appellant was born in India on 9 October 1996 and is an Indian citizen, as are his natural parents. At all material times they have lived in India. Pavitter Singh was born in India and is a British citizen. He and the appellant's natural father are cousins. Paramjit Kaur was also born in India. She is an Indian citizen and has indefinite leave to remain here. The sponsors were married in the UK in 1977. Their daughter Parvinder Kaur was born on 20 August 1978. In 1981, they opened a clothing manufacturing business in the UK. This business, in which they both work, flourishes to this day. From 1985, they underwent fertility treatment in an attempt to have a second child, but they were unsuccessful. Eventually, the couple considered adoption. In accordance with their social, cultural and religious customs, they looked to adopt within the family. The family are Sikhs. The appellant has three natural siblings. His natural parents and the sponsors agreed that the appellant should be adopted by the sponsors. The sponsors travelled to India on 27 December 1996, and on 29 December a religious ceremony took place as a result of which the appellant was adopted according to the religious laws and practices of the Sikh faith.

3

Following the religious ceremony, on 8 January 1997 a deed of adoption was executed by the natural parents and the sponsors. They declared and agreed that the natural parents "have given their child Pawandeep Singh in the lap of the adoptive parents who are adopting the child" (para 1) . Para 2(iii) provided that:

"Since the date of adoption the adoptive child has ceased to be the son of natural parents and has become the adopted son of the adoptive parents and ceases to claim any right of inheritance over the estate of his natural parents and will be treated as legal heir of his adoptive parents."

4

The deed was duly registered before Sub Registrar Jalandhar under the Hindu Adoption and Maintenance Act. By a decision of the Indian civil court dated 12 June 1997, this was recognised as a "legal and genuine document". It is common ground that according to Indian law the adoption formally transferred parental rights from the natural parents to the sponsors.

5

On 3 January 1997, the appellant applied to the British High Commission for entry clearance to join his adoptive parents in the UK for settlement. This application was refused by the entry clearance officer on 11 March 1997. An appeal was dismissed by the Adjudicator on the grounds that the appellant did not satisfy paras 310 or 297 of HC 395. The appeal failed not only because the Indian adoption was not recognised by the UK, so that the sponsors were not "adoptive parents" within the meaning of para 6 of HC 395, but also because he had not been adopted due to the inability of the natural parents to care for him (para 310 (viii)), and he had not lost or broken his ties with his family of origin (para 310(ix)) with whom he was still living (these paragraph numbers have since been changed) . The appeal was rejected under para 297 because, although he was seeking entry to join a relative and it was accepted that suitable arrangements had been made in the UK for his care, the Adjudicator found that there were not "serious and compelling family or other considerations which make exclusion of the child undesirable". An appeal to the Immigration Appeal Tribunal was dismissed on 1 February 1999. Permission to appeal to this court was refused by the Tribunal, and on a renewed application by Buxton LJ on 2 December 1999. It was submitted to Buxton LJ that HC 395 para 310(viii) was contrary to the ECHR. In refusing permission to appeal on this point, he said that he did not think that it was arguable that para 310(viii) fell foul of article 8 of the ECHR. I shall have to return to the decision of Buxton LJ later in this judgment.

6

On 17 July 2000, the appellant and the sponsors made an application to the ECtHR. The basis of the application was that the refusal of the appellant's application to join the sponsors in the UK for the purpose of settlement involved a breach of articles 8 and 12 read on their own and together with article 14, and that in breach of article 1 and 13 the applicants had been denied an effective remedy in the UK jurisdiction. On 3 September 2002, the ECtHR ruled that the application was admissible in respect of articles 8,13 and 14.

7

The Human Rights Act 1998 came into force on 2 October 2000. This inspired a further application for entry clearance on 19 October 2000. The application was refused by the entry clearance officer on 15 February 2001. The appellant appealed to the Adjudicator, who on 14 November 2001 allowed the appeal on the basis that the refusal of entry clearance was in breach of articles 8 and 14 of the ECHR. The entry clearance officer appealed to the Immigration Appeal Tribunal ("the Tribunal"), who by a decision promulgated on 3 December 2003 allowed his appeal. The appellant now appeals with the permission of Tuckey LJ. In order to explain and resolve the issues that arise on this appeal, it is necessary to examine parts of the decisions of the Adjudicator and the Tribunal in some detail. I should say at the outset that neither party challenges any of the primary findings of fact made by the Adjudicator.

The Adjudicator

8

Having set out the history which I have already summarised, the Adjudicator made the following findings:

"10. I find that the Appellant was adopted when a baby by the Sponsors. An immediate application for him to join his adoptive parents in the UK failed, therefore, of necessity, the Appellant remained in the household of his natural parents in India. Then and now he lived in this household with his natural parents, whom he calls uncle and aunt, his three natural siblings (there is a difference in emphasis in the evidence as to how he regards them) and his grandmother, whom he calls "grandmother", because everyone else in the household calls her that. The first Sponsor told me that the Appellant regarded his siblings as his brothers and sister although his wife told me the Appellant regarded his siblings as cousins. Both Sponsors stressed that the Appellant has been brought up to regard them as his real parents – he does not know as yet that he was adopted.

11. The Sponsors travel to India regularly, at least once if not twice a year, in order to see the Appellant. (I was provided with copies of their passports but many of the stamps are difficult to read. A schedule of their visits would have been helpful but I accept in any event that they are regular) . The UK Sponsors run a successful clothing business in the UK which supports their whole family and they are unable to leave it for prolonged periods. When in India, the appellant spends all his time with the Sponsors, including sleeping in their room. They are generally present on his birthday (I saw photographs of his birthday parties) and they have always supported him financially and made decisions about his upbringing. For example, he recently started at boarding school as a result of a decision made by and paid for by the adoptive parents (I saw documentary evidence and photographs of the school) .

12. The Sponsors and the appellant communicate frequently by telephone. The Sponsor's married daughter told me that she and the Appellant regard each other as brother and sister.

13. The Appellant is still very young, a small child of 5 but as he gets older he wonders why he cannot live with his parents (because of course he regards the adoptive parents as his real parents), at their home in the UK. He has been told that he will join them and cannot understand why he remains separate from them. The continued separation causes distress for all parties."

9

At para 15 she said:

"15. With regard to the Reasons for Refusal under paragraph 310, I find that this is a genuine adoption and I am not satisfied that it is one of convenience to facilitate entry to the UK. I also find that there has been a genuine transfer of parental responsibility, notwithstanding that the family in India still take day to day responsibility for the Appellant when not at school – because I find that the adoptive parents not only support the Appellant financially but make all major decisions...

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