TY (A Minor) v The Entry Clearance Officer in Sheffield
| Jurisdiction | UK Non-devolved |
| Judge | Lord Boyd,Jordan,Jordan UTJ |
| Judgment Date | 12 April 2018 |
| Neutral Citation | [2018] UKUT 197 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 April 2018 |
[2018] UKUT 00197 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE RT. HON. Lord Boyd
UPPER TRIBUNAL JUDGE Jordan
For the appellant: Ms K. Cronin, Counsel, Garden Court Chambers
For the respondent: Mr P. Duffy, Home Office Presenting Officer
TY (Overseas Adoptions — Certificates of Eligibility) Jamaica
In cases where an adoption is not recognised by the law of the United Kingdom:
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(i) The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued.
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(ii) The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it.
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(iii) Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted.
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(iv) The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility.
The appellant is a citizen of Jamaica who was born on 2 August 2001. He remains a minor. His sponsor, CM, is his maternal aunt. She is a British citizen and resident in London. She applied on the appellant's behalf for entry clearance to enable her nephew to join her in the United Kingdom. The application was refused by the entry clearance officer in Sheffield and, on review, by the entry clearance manager. Those decisions were made respectively on 14 October 2015 and 8 August 2016. The appellant appealed on the ground available to him, namely, that the decision was unlawful as incompatible with s.6 of the Human Rights Act 1998 and Article 8 of the ECHR.
The appellant's mother died in March 2010 of renal failure. A copy of a death certificate was provided to the Tribunal. The appellant is currently living with his grandmother in Jamaica. She is now 74 years old. The appellant's grandmother had suffered a stroke and was partially paralysed on the left side as well as having speech and memory impairment. The judge accepted on the strength of the medical evidence that the appellant grandmother would be unable to carry out a role as a parent to a teenage boy.
The appellant's father can no longer be traced but took no active part in bringing up the appellant. He disappeared in February 2016 and the Jamaican police suspected that they had discovered part of his body but were unable to identify it positively as the father. The sponsor's mother and father (the appellant's maternal grandparents) had been separated for more than 35 years and the sponsor financially supported (and continues to support) both the appellant's grandmother and the appellant.
The appellant has four siblings in Jamaica. All of them are adult and have left home. There are two older sisters. The appellant's two brothers, aged 26 and 24 respectively, have never been considered as suitable to look after the appellant during his minority. His two sisters have shown no willingness to do so.
In 2011, shortly after the death of the appellant's mother, Ms CM commenced adoption proceedings in Jamaica. Jamaica was one of several countries named in the Adoption (Designation of Overseas Adoptions) Order 1973 (‘the designated list’) as they related to adoptions made from 1 February 1973 to 2 January 2014. Such adoptions were recognised in the United Kingdom. On 3 January 2014, the designated list was revoked and replaced by the Adoption (Recognition of Overseas Adoptions) Order 2013 and the 2013 Scottish Regulations. Jamaica was omitted from the list of countries whose adoptions, since January 2014, were recognised in the United Kingdom. Only the countries so listed were known as ‘overseas adoptions’.
The appellant submitted a Jamaican adoption certificate dated 16 December 2014 as part of her application. By then, this adoption certificate had ceased to be recognised by the authorities in the United Kingdom.
The appellant's appeal came before First-tier Tribunal Judge S. Taylor on 12 June 2017. The determination was promulgated on 27 June 2017. The First-tier Tribunal Judge found that the appellant could not meet the requirements of the Rules for entry clearance. Having not met them, the refusal of entry clearance was not an interference with the appellant's family life sufficient to engage Article 8. He rejected the appellant's appeal.
Not all foreign adoptions are recognised, that is, have legal effect in the United Kingdom. Sections 66 and 67 of the Adoption and Children Act 2002 and sections 39 and 40 of the Adoption and Children (Scotland) Act 2007 define the adoptions treated in law as having legal effect in England, Wales and Scotland (termed in the Adoption and Children Act as ‘ Chapter 4 adoptions’). These include certain intercountry adoptions:
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(i) An adoption effected under the law of a Hague Convention country outside the British Islands, and certified in pursuance of Article 23(1) of the Convention (a “Hague Convention adoption”). The UK incorporated the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption into domestic law by the operation of the Adoption (Intercountry Aspects) Act 1999 Schedule 1 and Adoptions with a Foreign Element (Scotland) Regulations 2009/SI 182 (Scottish SI).
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(ii) An overseas adoption (as referred to in paragraph 5 above) effected under the law of a country or territory listed in the Schedule to the Adoption (Recognition of Overseas Adoptions) Order 2013 from 3 January 2014 and to the Adoption (Designation of Overseas Adoptions) Order 1973 for adoptions made from 1 February 1973 to 2 January 2014. These state that such adoptions must not be a Hague Convention, customary or common law adoption. This change is the underlying factor in this appellant's appeal.
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(iii) An adoption recognised by the law of England and Wales and effected under the law of any other country. The inherent jurisdiction invoked to recognise foreign adoptions is described in detail by Sir James Munby President in N (A Child), Re [2016] EWHC 3085 (Fam). We only attempt a summary: the adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption; the child must have been legally adopted in accordance with the requirements of the foreign law; the foreign adoption must in substance have the same essential characteristics as an English adoption and there must be no reason in public policy for refusing recognition.
Where an adoption carried out in accordance with the law and customs of a foreign country is not so recognised, there is a prohibition in bringing the child into the UK except where the Immigration Rules make other provision.
The prohibition is found in s. 83 of the Adoption and Children Act:
83 Restriction on bringing children in
(1) This section applies where a person who is habitually resident in the British Islands (the “British resident”)—
(a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or
(b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time.
The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.
In Scotland the prohibition is found in s. 58 of the Adoption and Children (Scotland) Act 2007 and in Northern Ireland by NI SI 144 regs 3 and 4.
By virtue of s.83(2) of the Adoption and Children Act where it is intended the child is to be adopted under a Hague Convention adoption, the prohibition contained within s. 83(1) is expressly excluded. However, the prohibition does apply to all ‘external adoptions’ – defined as an adoption other than a Convention adoption of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is an adoption within the meaning of ACA Chapter 4 (that is a recognised or ‘overseas adoption’) or a full adoption (within the meaning of section 88(3) – that is an adoption by virtue of which the child is treated in law as not being the child of any person other than the adopter(s).)
The Act envisages its provisions being implemented by Regulations which may require a person intending to bring, or to cause another to bring, a child into the United Kingdom (a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and (b) to give the adoption agency any information it may require for the purpose of the assessment.
The Regulations may require prescribed conditions to be met. The principal condition with which we are concerned is the condition to produce a certification from the Secretary of State from the Department for Education (DfE) or, in Scotland, from the Scottish Ministers.
It is a striking feature of the...
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