The Queen (on the application of AK and Others) v The Entry Clearance Office (Islamabad)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Males,Lord Justice Moylan |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1038 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2019/2480 |
[2021] EWCA Civ 1038
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MS MARGARET OBI, SITTING AS A JUDGE OF THE HIGH COURT
CO/3044/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Males
and
Lord Justice Lewis
Case No: C4/2019/2480
Tim Buley QC and David Ball (instructed by Duncan Lewis) for the applicants.
Samantha Broadfoot QC and Carine Patry (instructed by Government Legal Department) for the respondents
Hearing date: 1 July 2021
Permission is given for this judgment to be cited in legal proceedings in court.
Approved Judgment
INTRODUCTION
This is an application for permission to appeal against a decision of Ms Obi, sitting as a judge of the High Court (“the judge”), refusing an application to extend time for the bringing of a claim for judicial review.
In summary, the 11 applicants are nationals of Afghanistan. Their eldest sister came to the United Kingdom in March 2012 and was granted asylum in June 2012. The 11 applicants sought entry to the United Kingdom in June 2012 on the basis that they had been the subject of a de facto adoption by their sister in Afghanistan. That application was refused as the applicants did not satisfy the requirements of the relevant Immigration Rules. Ultimately, on 12 December 2017 the 11 applicants were granted discretionary leave to enter the United Kingdom for 33 months. That leave was granted outside the Immigration Rules on the basis that refusal of leave to enter would involve a breach of the right to respect for family life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
On 25 July 2018, the 11 applicants filed a claim for judicial review challenging what was said to be a decision of 26 April 2018, and the continuing unlawful application of the Immigration Rules. At an oral hearing, the judge decided that the effective decision in this case was that of 12 December 2017 so that the claim was brought out of time. She refused to grant the application to extend time for bringing the claim.
The 11 applicants contend that the judge was wrong to refuse to extend time for bringing the claim. They contend that this Court should extend time, grant permission to apply for judicial review and either hear the substantive claim itself or remit the matter to the Administrative Court. The respondent contends that the judge was entitled to reach the decision that she did.
THE LEGAL FRAMEWORK
Paragraph 352D of the Immigration Rules provides that children whose parents have been granted refugee status in the United Kingdom may be granted leave to enter to join or remain with their parents. Paragraph 352D provides
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 currently has refugee status are that the applicant:
(i) is the child of a parent who currently has refugee status granted 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 their habitual residence in order to seek asylum; and
(v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.
Prior to 31 March 2003, “parent” was defined in paragraph 6 of the Immigration Rules to include an adoptive parent but only where the child was adopted in accordance with a decision taken by a competent administrative authority or court in a country whose adoption orders were recognised by the United Kingdom.
On 31 March 2003, changes to the Immigration Rules came into force which amended the definition of “parent” to include the parent of a child who was the subject of a de facto adoption. The amendments provided a definition of de facto adoption. The material provisions of paragraph 6 provide that parent includes:
“(c) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or a court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A…..”
Paragraph 309A of the Immigration Rules provides that:
“ Adopted children
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.”
The definition is convoluted but, essentially, for a de facto adoption to have taken place, the following requirements need to be satisfied. The adoptive parent (or parents):
a) must have lived abroad for a minimum period of 18 months immediately preceding the application by the child for entry clearance;
b) must have been living with the child for a period of 12 months immediately preceding the application by the child for entry clearance;
c) must 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.
The applicants criticise aspects of this definition. In particular, they criticise the requirement that the adoptive parent must have lived with the child in the 12 months immediately preceding the making of an application for entry clearance. They point to the fact that this definition could never be satisfied in the case of a refugee as that person would have fled the country to seek asylum elsewhere. It would inevitably have taken time to be recognised as a refugee in the state to which the person fled and before any application for entry clearance could be made on behalf of the child. That person could not, therefore, have been living with the child in the period “immediately preceding” the making of the application for entry clearance. By parity of reasoning, similar criticisms could be made of the requirement that the adoptive parent must have lived in the country for an 18 month period “immediately preceding the making of the application for entry clearance”.
THE FACTS
There has been no substantive hearing of this claim in the Administrative Court and no judgment identifying the relevant facts. As this is an application for permission to appeal, this Court has had limited evidence provided to it and is not in a position to find facts. The factual description below is taken either from the documents where particular facts are not in dispute or from the findings of fact made by the First-tier Tribunal which considered an appeal by the applicants in 2013. Those factual findings have not been challenged and, indeed, at the most recent hearing in the Upper Tribunal in June 2017, it is recorded that the applicants and respondent were content that the Upper Tribunal should consider the evidential findings made by the First-Tier Tribunal.
The Applicants and their Sister
The 11 applicants are all nationals of Afghanistan. The oldest was born in 1995 and the youngest was born in 2005. Their eldest sister, Ms K, was born in 1981. Ms K worked for US Aid in Afghanistan between August 2008 and November 2008. Ms K and her husband then moved to Germany where Ms K had a scholarship to complete a Master's Degree in Public Policy.
The applicants' father had psychiatric problems which worsened in October 2010. That resulted in the mother leaving the family home. It appears that Ms K returned to Afghanistan at some time in about November 2010. The First-tier Tribunal noted that Ms K had obtained a court order, in about December 2010, by which she was appointed the applicants' legal guardian. Ms K completed her Master's Degree during a number of visits to Germany and cared for the applicants.
At some stage, she began working in Kabul as the Gender Adviser to the High Peace Process. Following threats, however, Ms K was forced to flee Afghanistan and arrived in the United Kingdom in March 2012. She applied for asylum. That claim was accepted in June 2012 and Ms K was, we were told, given leave to remain for 5 years. We were told that in due course she became entitled to apply for indefinite leave to remain, and, ultimately to apply for British citizenship and is now a British...
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