Upper Tribunal (Immigration and asylum chamber), 2016-08-19, OA/17176/2013
| Jurisdiction | UK Non-devolved |
| Date | 19 August 2016 |
| Published date | 02 March 2018 |
| Hearing Date | 27 July 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | OA/17176/2013 |
Appeal Number: OA171762013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/17176/2013
THE IMMIGRATION ACTS
|
Decided on the papers |
Decision & Reasons Promulgated |
|
On 27 July 2016 |
On 19 August 2016 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
A U J
[ANONYMITY DIRECTION MADE]
Appellant
and
ENTRY CLEARANCE OFFICER, KINGSTON
Respondent
DECISION
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although an anonymity order was not made by the First-tier Tribunal, this appeal concerns the adoption of a child from Jamaica. On the facts of this case, it is appropriate to make an anonymity direction.
DECISION AND REASONS
Background
-
In a decision promulgated on 29 June 2016, I found there to be a material error of law in the decision of First-tier Tribunal Judge Kaler promulgated on 29 August 2014 and I set that decision aside. My error of law decision (“the Decision”) is included as an appendix at the end of this decision for ease of reference.
-
In directions given within the Decision, I invited written submissions from the parties as to the appropriate course for this appeal to be re-determined. By submissions dated 7 July 2016 received from Mr Jarvis, Senior Home Office Presenting Officer, the Respondent indicated that she had no objection to the remittal of this appeal in light of the Decision as the Appellant has not had any findings made by the First-tier Tribunal in relation to the issues which I identified at [55] of the Decision. However, in a written statement from the Appellant’s sponsor, Mrs M J (“the Sponsor”), received on 11 July 2016, the Sponsor has indicated that, in light of the delays that have occurred already in relation to the determination of this appeal, the Appellant wishes to have the matter re-determined by the Upper Tribunal. She also wishes the remaining issues to be determined on the papers, taking into account the Appellant’s submissions on those issues as set out in her Counsel’s skeleton argument along with the evidence filed in this appeal including the Sponsor’s various statements and the further written statement dated 7 July 2016.
-
Although this appeal is that of the Appellant, she continues to reside in Jamaica and is a minor child. As a matter of practicality, therefore any oral evidence would come from the Sponsor who is the Appellant’s aunt and adoptive mother. In light of her request that the appeal be re-determined by me on the papers, and in spite of the fact that she is thereby deprived of the opportunity to give oral evidence and of having findings of fact made by the First-tier Tribunal, I accede to her request.
The legal framework
-
The factual background to this appeal is set out in my error of law decision at [2] to [9] of the Decision. The relevant provisions of the Immigration Rules (“the Rules”) are set out at [10] of the Decision and I do not need to repeat those. I also draw attention to sections 85 and 85A Nationality, Immigration and Asylum Act 2002 which are reproduced so far as relevant at [42] of the Decision.
-
By virtue of section 85A, I may only consider the circumstances appertaining at the date of the decision of the Entry Clearance Officer. In this case, that comprises the decision of the Entry Clearance Officer (“the ECO”) dated 7 August 2013 and the decision following review of the Entry Clearance Manager (“the ECM”) dated 3 February 2014. I am able to take account of evidence post-dating those decisions but only insofar as that is evidence of circumstances which existed at those dates.
-
The issues to be determined are set out at [55] of the Decision. I have already found that the Appellant needed to satisfy paragraph 309B of the Rules and was unable to do so at the date of either the decision of the ECO or the ECM. That is because the sponsor adopted the Appellant by an order dated 2 May 2013 and the decisions of the ECO and ECM were within twelve months of that date. However, in case I am wrong about the application of paragraph 309B (if this matter goes further and to avoid further delays should that occur), it is necessary for me to consider the relevant sub-paragraphs of paragraph 310 which were put at issue by the ECO and the ECM. In any event, there is some overlap with the other paragraph on which the Appellant relies being paragraph 297(i)(f). The Appellant also relies on Article 8 ECHR in the event that she cannot succeed under the Rules.
-
The sub-paragraphs of paragraph 310 put at issue by the ECO and ECM are as follows:-
-
paragraph 310(i)(e): whether the Sponsor has had sole responsibility for the Appellant;
-
paragraph 310(i)(f): whether there are serious and compelling family or other considerations which make exclusion of the Appellant undesirable and suitable arrangements have been made for the Appellant’s care;
-
paragraph 310(ix): whether the Appellant was adopted due to the inability of the Appellant’s father to care for her and there has been a genuine transfer of parental responsibility from the Appellant’s father to the Sponsor;
-
paragraph 310(x): whether the Appellant has lost or broken ties with her family of origin; and
-
paragraph 310(xi): whether the adoption is one of convenience designed to facilitate admission to the UK.
-
There is an overlap between paragraph 310(i)(f) and paragraph 297(i)(f) which the Appellant relies on in the alternative. I do not understand the Appellant to be relying on paragraph 297(i)(e) but in any event there is the same overlap between that paragraph and paragraph 310(i)(e) so I need to consider that issue in any event. I consider whether the Appellant can meet the requirements of the Rules before moving on to consider whether the Appellant can succeed under Article 8 ECHR.
The evidence
-
I begin my consideration of the Appellant’s evidence by looking at what was before the ECO when he made his decision. As I have already observed, I am constrained in my consideration to evidence of the circumstances as they were at that time and it therefore makes sense to consider that evidence first.
-
In her statement dated 27 May 2013, the Sponsor sets out the basis of the Appellant’s case and the reason why the Sponsor (the sister of the Appellant’s father) has taken the step of adopting her. The Appellant’s mother left in 2008. Her father suffered a road traffic accident. He has impaired vision as a result. He also had surgery more recently to repair a hernia.
-
The Sponsor states that she has been supporting the Appellant financially and emotionally “where possible” since the Appellant was a toddler and that the Appellant stays with the Sponsor and her husband when they are in Jamaica which has been on average once and sometimes twice each year. At the date of the adoption and the application for entry clearance, the Sponsor was on a career break and the Appellant had lived with her since November 2012 (the application was made on 21 May 2013 following the making of the adoption order on 2 May 2013). The Sponsor’s husband had travelled to Jamaica prior to the Sponsor’s visit and would be returning to Jamaica when the Sponsor left to return to the UK.
-
The Appellant was aged ten at the date of the application (now thirteen) and the Sponsor opines that she is in need of a mother figure in her life. She states that it would be in the Appellant’s best interest if she were permitted to grow up in a stable and supported environment. The Sponsor says that during the period leading up to the application, she enjoyed being involved in the Appellant’s educational development and there had been a dramatic improvement in her schoolwork. The Sponsor noted that she and her husband had considered moving to Jamaica and residing there with the Appellant but considered it to be in their best interests as well as those of the Appellant for them to all live together in the UK. The Sponsor is a dual national Jamaican and British citizen. She works in the UK. The Sponsor’s husband is retired.
-
The Sponsor notes that no arrangements were in place for the Appellant to remain in Jamaica if she and her husband were not present permanently. She states that the Appellant’s father is unable to care for the Appellant. However, there is no mention in the covering letter as to his whereabouts. There is a lack of evidence before the ECO (and before me) as to whether the Appellant’s father continues to care for the Appellant and/or have access to her and, if not, why not. The Appellant has another aunt in Jamaica but she has her own family. The Sponsor says that she has since made temporary arrangements for the Appellant’s care while she and her husband remain in the UK. Those arrangements appear from later evidence to be that the Appellant is now living with one...
To continue reading
Request your trial