Upper Tribunal (Immigration and asylum chamber), 2017-11-13, HU/12111/2015
| Jurisdiction | UK Non-devolved |
| Date | 13 November 2017 |
| Published date | 24 November 2017 |
| Hearing Date | 01 September 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/12111/2015 |
Appeal Number: HU/12111/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12111/2015
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE blum
Between
AS
(anonymity direction MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
CONSENT TO WITHDRAWAL
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The Entry Clearance Officer (Respondent), by means of the update/skeleton argument dated 25 September 2017, has decided to withdraw the decision of 30 October 2015 refusing the Appellant’s entry clearance application because, on the totality of the evidence, it is now accepted1 that the Appellant meets the requirements for entry clearance under paragraphs 309A and 310 of the immigration rules (HC 395).
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The Respondent has invited the Upper Tribunal to consider whether it should exercise its discretion and allow for the withdrawal of the Respondent’s case from its own jurisdiction with reference to SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 64 (IAC). In a letter dated 27 September 2017, received by the Upper Tribunal on 28 September 2017, the Appellant’s legal representatives indicated that the Appellant agreed to the Respondent’s withdrawal.
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In directions issued to both parties on 9 October 2017 the Upper Tribunal indicated its preliminary view that there was no need for a further hearing and that the Upper Tribunal would consider whether to exercise its discretion to allow the Respondent to withdraw her case on the basis of the documents provided by the parties, including the Appellant’s representations contained in the letter dated 27 September 2017. Both parties were given until Friday 13 October 2017 to make representations as to whether they agree to this proposed course of action. The Upper Tribunal received a further letter from the Appellant’s representatives, dated 12 October 2017, agreeing to the proposed course of action, and repeating their view, expressed in their earlier letter, that the Respondent’s update/skeleton argument represented a full and accurate rendering of the law and its application regarding the entry of de facto adopted children to the UK. There were no further representations from the Respondent.
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Pursuant to Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and having regard to the documentation before me and the representations of the parties, and in light of the Respondent’s decision to withdraw the underlying decision refusing entry clearance on the basis that the requirements of the immigration rules have been met, I give my consent to the withdraw of the ECO’s case.
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Given the history of this matter and the issues involved, and having regard to TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), I now provide a brief outline of the reasons for my decision.
Factual background
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The Appellant was born in November 2009. NS and RN are his aunt and uncle (RN’s brother is the Appellant’s biological father). NS and RN are also the Appellant’s sponsors in his entry clearance application as his ‘de facto adoptive parents’ as described in paragraph 309A of the immigration rules (HC 395). On 13 August 2015, the Appellant applied for entry clearance under paragraph 310 of the immigration rules as a child who had undergone a ‘de facto’ adoption.
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NS and RN are unable to have children of their own. In 2009 they were informed by RN’s brother that his wife was pregnant with their 2nd child. Because RN’s brother and his wife were struggling financially, and because of her health issues, they offered the Appellant to NS and RN. A guardianship appointment was made in respect of NS and RN on 13 February 2010. An earlier application and subsequent appeal was unsuccessful because neither NS or RN were British citizens (as they were both PBS migrants the application was not made under paragraph 310) and because immigration judge Bennet was not satisfied there had been a genuine transfer of parental responsibility.
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NS and RN naturalised as British citizens in 2013. In November 2013 they returned to Pakistan to undertake the Appellant’s full-time care and live with him. Guardianship and permission to relocate with the Appellant was confirmed by a Pakistani Court on 7 April 2014. On 13 August 2015, the Appellant applied for entry clearance on a de facto adoption basis.
The refusal of entry clearance and the First-tier Tribunal decision
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The Respondent refused the application on the basis, inter alia, that there had not been a de facto adoption, and that there was no Certificate of Eligibility, required in the circumstances described in paragraph 309B of the immigration rules (with reference to the Adoption and Children Act 2002 (ACA 2002) and the Adoptions with a Foreign Element Regulations 2015). The decision (which was a refusal of a human rights claim) was appealed to the First-tier Tribunal but the First-tier Tribunal, in a decision promulgated on 13 June 2017, dismissed the appeal.
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It is not necessary to consider in any detail the First-tier Tribunal’s decision. It was agreed by both representatives at an ‘error of law’ hearing in the Upper Tribunal (permission having been granted by the First-tier Tribunal on 6 July 2017) before myself on 1 September 2017 that the First-tier Tribunal decision was infected by material legal errors (a conclusion with which I expressed complete agreement). In a decision promulgated on 7 September 2017 I gave a brief decision identifying the various material legal errors committed by the First-tier Tribunal judge. The reasoning contained in this judgment is annexed to this decision. Given the relative complexity of issues the matter was adjourned to enable the Respondent’s representative to obtain instructions from the relevant policy department and for further evidence to be gathered in preparation for a de novo hearing before the Upper Tribunal.
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On 25 September 2017, the Upper Tribunal received the Respondent’s update/skeleton argument indicating that she was withdrawing the refusal of entry clearance because, on the totality of the evidence provided post October 2015, the Respondent now accepts that the Appellant meets the requirements of the immigration rules, and setting out broad reasons for this conclusion.
Legal framework
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The principles issues in contention related to the proper interpretation of paragraphs 309A and 309B of the immigration rules. At the date of the Respondent’s decision these rules read:
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.
309B. Inter-country adoptions which are not a de facto adoption under paragraph 309A are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. As such all prospective adopters must be assessed as suitable to adopt by a competent authority in the UK, and obtain a Certificate of Eligibility from the Department for Education, before travelling abroad to identify a child for adoption. This Certificate of Eligibility must be provided with all entry clearance adoption applications under paragraphs 310-316F.
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Section 83 of the Adoptions and Children Act 2002 (ACA 2002), as amended by the Children and Adoption Act 2006, reads,
Restriction on bringing children in
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This section applies where a person who is habitually resident in the British Islands (the “British resident”)
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brings, or causes another to bring, a child who is habitually resident outside the British...
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