Upper Tribunal (Immigration and asylum chamber), 2022-08-23, HU/04194/2020
| Appeal Number | HU/04194/2020 |
| Hearing Date | 10 March 2022 |
| Published date | 07 September 2022 |
| Date | 23 August 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/04194/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04194/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On the 10th March 2022 |
On the 23rd August 2022 |
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Before
UPPER TRIBUNAL JUDGE RIMMINGTON
and
UPPER TRIBUNAL JUDGE MANDALIA
Between
AA
(anonymity direction made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms K Cronin, instructed by EMAP
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
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This appeal concerns the refusal of an application for entry clearance made by a child who, it is said, was an orphan but had been subject to a ‘kafalah’ process in favour of the sponsor in circumstances where it is not culturally acceptable to give the parental rights to a non-family member and alternative long-term care options must be pursued. The appellant and sponsors refer to the arrangement as a ‘kafila’, a term that is often referred to as ‘kafala’ or ‘kafalah’. In this decision we adopt the term ‘kafalah’. In the grounds of appeal the appellant adopts the terms “kafil” (guardian) and “makful” (child). The term ‘kafalah’ in Islamic law is used to describe a situation similar to adoption, but without the severing of family ties. Lord Carnwath in A (Somalia) (FC) (Appellant) v Entry Clearance Officer (Addis Ababa) (Respondent) [2013] UKSC 81 observed that the term was described by the parties in an agreed statement of issues as "a process of legal guardianship akin to adoption".
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The application for entry clearance was refused by the respondent for reasons set out in a decision dated 18th February 2020 which was maintained following a review by the Entry Clearance Manager on 20th July 2020. It is common ground between the parties that the appellant is unable to meet the requirements for indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled in the UK or with a view to settlement as a child for adoption under paragraphs 310 and 316F of the immigration rules. The respondent concluded that the application does not fall for a grant of entry clearance outside the rules on Article 8 grounds.
The decision of the First-tier Tribunal
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The appellant’s appeal to the First-tier Tribunal was dismissed for reasons set out in a decision of First-tier Tribunal Judge Rae-Reeves (“the judge”) promulgated on 16th April 2021. The judge summarised the background as follows:
“3. The sponsor travelled to Sudan in 2018 with the intention of adopting a child. She says she found the Appellant in an orphanage and instantly made a connection. She stayed with the Appellant for six weeks and has visited her twice since for similar periods. During these periods in Sudan she asserts that she has gone through a process similar to adoption whereby she has been granted status of parent over the Appellant, a process known as Kafila.
4. The appellant child made an application for entry clearance on the 26/09/2019 to join her guardians. She was refused under the immigration rules and pursuant to Article 8. The appellant appealed by way of Form IAFT-6 dated 11/03/2020. Her application was refused by way of a reasons for refusal letter dated 18/02/2020. It was refused because the appellant was unable to comply with the Immigration Rules and also under Article 8. The appellant accepts that the application proceeds only under Article 8.”
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The judge sets out the evidence relied upon by the appellant in paragraphs [12] to [19] of the decision. The findings and conclusions are set out at paragraphs [36] to [58] of the decision. As far as is material, the judge said:
“36. The Appellant accepts that this appeal does not fall within the Immigration Rules and as such proceeds solely under Article 8. As such the consideration referred to at paragraph 6 above must start with the first question posed in Razgar. In asking whether the proposed removal would be an interference with the Appellant’s right to her family life the central issue is whether such a family life exists in circumstances where she is and always has been in a separate entry to the sponsor. It is trite law that family life can exist despite such a geographical separation.
37. The sponsor’s evidence is that she first met the Appellant child in 2018 and now has responsibility for her under the Kafila process. Based on the documentary evidence I accept that this process has taken place. The documents are comprehensive and demonstrate the sponsor’s responsibility for the Appellant. However, the existence of a legal relationship does not, in itself, establish or prove the existence of family life.
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48. To summarise I have found that the sponsor has gone through a process akin to guardianship in Sudan and is therefore registered in that country as guardian (or parent on the Birth Certificate) of the Appellant. I have not accepted that the child was provided by an orphanage and is without biological family; nor have I accepted that there is daily contact or regular financial assistance. On the Appellant’s own evidence, she has spent 12 weeks living with the Appellant over the last three years (although I accept that she would have seen the Appellant over the first six weeks when she first met her). On the basis of the very specific facts of this case, I cannot find that there is a family life pursuant to the first question in Razgar.
49. I am familiar with the case law and have noted the cases in the skeleton. One of the leading cases on family life is Kugathas [2003] EWCA Civ 31. As quoted in paragraph 31 of the ASA I note the dicta of Lord Justice Sedley where he states that that if dependency is read as meaning “support” and if one adds that following the Strasburg jurisprudence, “real” or “committed” of (sic) “effective” to the word support, “then it represents in my view the irreducible minimum of what family life implies.”. As he suggests this is the bare minimum that an Appellant must prove to demonstrate family life. In the same case Lady Justice Arden went onto (sic) say that a possibility of a family existing between members of the same family in different countries “will probably be exceptional”. In the present case I do not consider that the Appellant has even reached that irreducible minimal level described by LJ Sedley. She has not demonstrated such support. One of the crucial differences in the present case is that before separating there had never been a family life between the Appellant and the sponsor. This makes the situation very different to cases such as Kugathas and the Gurkha case of Rai in which Lord Justice Lindblom emphasised LJ Sedley’s definition of support.
50. On this basis I conclude that the answer to the first question set out above is negative. For this reason, I need not consider the other questions and in particular proportionality under question 5. However, in the interests of completeness I provide my conclusions. In doing so I have considered the child’s best interests pursuant to section 55 as highlighted in the Appellant’s skeleton and I have considered the cases set out therein including SS Congo and Miao. This provision applies to children within the United Kingdom but I have nevertheless applied the spirit of that provision to the appellant’s case. As such the best interests of the child are my primary consideration when dealing with proportionality but her interests are not paramount and do not eclipse all other factors. I have conducted a balance sheet exercise weighing up the need for effective immigration control with the circumstances before me.
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57. When considering the best interests of the child I am not in a position to make a finding on the suitability of the sponsor and her husband as I do not have adequate information that would be before the party responsible for clearing them for adoption (or guardianship) in the UK. Because I have no adequate evidence about the sponsor and her husband and their past histories (other than immigration histories), I can make no judgement on whether they would represent a safe or appropriate environment for a child. This would be assessed by those responsible under the Adoption and Children Act 2002 which is provided for (sic) the Immigration Rules. They would no doubt take into account all factors including age and living circumstances. It cannot be right that such safeguards are disregarded by virtue of the fact that the Appellant chooses to pursue her appeal outside of the rules.
58. Based on the evidence of the sponsor and her sister it is submitted that the child may be returned to the orphanage. However, I have no evidence to support the submission that this would have ‘very serious consequences’. I am also mindful of not falling into the trap of trying to assess the child’s best interests solely from the UK perspective. This (sic) is a growing body of thought that suggests is it (sic) no longer considered ethical to take a child away from her language, culture and customs to bring her to an entirely alien environment, in this case with the sponsor with whom she has only spent a matter of weeks with. Without such a...
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