Upper Tribunal (Immigration and asylum chamber), 2023-08-07, UI-2023-000588
| Appeal Number | UI-2023-000588 |
| Hearing Date | 25 July 2023 |
| Date | 07 August 2023 |
| Published date | 22 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-000588
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-000588 |
|
|
First-tier Tribunal No: EA/53131/2021 |
|
|
|
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 7 August 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE SKINNER
Between
OSASERE BLESSING OMOREGBE
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr E Imo, legal representative, of Chancery CS Solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer
Heard at Field House on 25 July 2023
DECISION AND REASONS
Introduction
-
The Appellant appeals with permission of Upper Tribunal Judge Kebede dated 24 April 2023 against the decision of First-tier Tribunal Judge Chohan (“the Judge”) promulgated on 6 December 2022. By that decision the Judge dismissed the Appellant’s appeal against the Respondent’s refusal of an EEA Family Permit, dated 20 April 2021.
-
The Appellant is a national of Nigeria born in 2005 who has been adopted, by order of the Nigerian High Court dated 24 May 2017 (“the Order”), by Mrs Lisa Vincent Philip, a Spanish national claiming to exercise treaty rights in the UK. The Appellant claims that she is accordingly a ‘family member’ of her adoptive mother and entitled to join her (and her husband) in the UK and to be issued with an EEA Family Permit, pursuant to Regulation 7 of the Immigration (European Economic Area) Regulations 2016.
-
It was common ground before us (and before the First-tier Tribunal (“the FTT”)) that:
-
a lawfully adopted child is in principle a ‘family member’ for the purposes of the EU citizenship directive; and,
-
as Nigeria is not a Hague Convention state and has been removed from the list of countries whose adoptions are automatically recognised by virtue of the Adoption (Recognition of Overseas Adoption) Order 2013, the only way in which the Appellant could be considered to have been lawfully adopted as a matter of English law was if her adoption were ‘recognised at common law’.
-
It was not submitted before the FTT that the Appellant was the sponsor’s extended family member; the case was advanced solely with reference to regulation 7.
-
It was also assumed by all involved below that the FTT had jurisdiction to determine the recognition issue. We have real doubts about the correctness of that assumption. In Re G [2014] EWHC 2605 (Fam) Mr Justice Cobb held that adoption recognised at common law “require[s] specific proceedings” before the adoption is to be treated as lawful. As a common law adoption does not take effect until a court has recognised it, if the FTT were to have such a jurisdiction, there would have been no lawful adoption (as a matter of English law) at the time of the Entry Clearance Officer or Secretary of State’s decision, as the case may be, and the matter would then arguably be a “new matter” within the meaning of section 85(6) of the Nationality, Immigration and Asylum Act 2002, which could only be considered if the Secretary of State consented. It would also, and in our experience, uniquely, be a new matter created by the FTT itself. That would be a most unusual jurisdiction for the FTT to possess.
-
As a result of our doubts, when the appeal originally came before us on 24 May 2023, we informed the parties that, given that this was a jurisdictional issue, it was a matter on which we would be assisted by submissions. As the parties had not given the point consideration, we adjourned the hearing in order to permit them to do so and directed them to file their submissions in writing. While grateful for those submissions and the work which the parties’ representatives have put into them, they do not in our judgment take matters further. The Secretary of State drew our attention to her various policy documents, but none dealt with the point raised. The Appellant relied principally on the powers of the Upper Tribunal contained in s.25 of the Tribunals, Courts and Enforcement Act 2007. But the issue is not one of the Upper Tribunal’s powers.
-
Notwithstanding that this is a jurisdictional question, we have decided that, ultimately, it is not necessary or desirable to decide this issue in light of our conclusions on the grounds of appeal advanced by the Appellant. The question will have to be decided in a case where it is necessary for the resolution of the appeal, and hopefully with fuller submissions from the parties. In the meantime we would observe that those seeking to bring children into the UK who have been adopted in countries where an adoption is required to be recognised at common law would be well advised to seek that recognition from the family courts prior to making their application to the Entry Clearance Officer, thus avoiding this issue altogether. The process of applying for recognition of a foreign adoption under the inherent jurisdiction of the High Court (and, separately, for the grant of a declaration pursuant to s.57 of the Family Law Act 1986) is well established and has been considered in authorities including Re G.
Background
-
The Appellant was born on 8 May 2005 in Benin City, Nigeria.
-
According to the Order, the Appellant’s biological parents are Isehe Omoregbe and Esther Mary Okumafiyi. The Judge states that Mrs Okumafiyi died in 2019.
-
By the Order, leave was “granted to the 1st applicant – LISA VINCENT PHILIP of No.57, Hasketon Drive, LU49EZ, United Kingdom to adopt and take full parental care and responsibility of the said [Appellant] and for the purposes of her adoption, guardianship, upbringing and all other parental care, Rights and Duties.” It was further ordered that custody of the Appellant was granted to Mrs Vincent. The Second Applicant was the Appellant’s biological mother. There is nothing in the Order to indicate that Mrs Vincent was present at the hearing.
-
The Appellant’s biological father was not a party to the Nigerian adoption proceedings and no evidence in relation to him, or whether he continues to have parental responsibility (or relevant Nigerian equivalent) was put before the FTT. Likewise, the Order does not, on its face, grant adoption of the Appellant to Mrs Philip’s husband, Mr Odia. Mrs Vincent and Mr Odia have three other children.
-
According to the witness statements filed in the FTT, at that time, Mr Odia had visited Nigeria and met the Appellant, but Mrs Vincent had not done so. The witness statements do not set out any background to why it was decided that Mrs Vincent should adopt the Appellant, or what the circumstances were that led to that decision.
-
The Appellant made her application for an EEA Family Permit on 23 February 2021. This was refused on 20 April 2021, on the basis that Nigeria was not on the list in the Adoption (Recognition of Overseas Adoptions) Order 2013 and as such it was not accepted that the Appellant was adopted by a related to Mrs Vincent as a direct family member.
Appeal to the FTT
-
The Appellant’s appeal came before the Judge at a hearing on 2 November 2022. At para. 4 of the decision, the Judge records that he “pointed out to Mr Imo that the issues in this case were very narrow and that the factual matrix was not in dispute. As such, [he] put it to Mr Imo as to whether the case could proceed by way of submission only. Mr Imo agreed as did [the ECO’s representative]. The hearing proceeded accordingly.”
-
At paras. 8-9 the Judge set out the test to be applied in determining whether a court should recognise an overseas adoption at common law and noted that, of the criteria to be applied, only the question of whether the adoptive parents were domiciled in the country of adoption at the time of the foreign adoption was in dispute. The Judge noted that “domicile” is a complex legal term and set out the summary of the concept from the case of Re V (A Child) (Recognition of Foreign Adoption) [2017] EWHC 1733 (Fam).
-
The Judge’s findings in relation to this issue are set out in para.10 of his decision, as follows:
“I have considered the witness statements of the sponsor and her husband but there is nothing in those statements dealing with the issue of their domicile. On the evidence before me it does seem that the sponsor and her husband are permanent residents in the United Kingdom and not Nigeria. I have no doubt that they have connections with Nigeria due to their connection with that country by way of birth, culture and customs. The difficulty in this case is that no evidence has been submitted that the sponsor is domiciled in Nigeria despite the fact that she resides in the United Kingdom permanently. As such, I am not satisfied, on the evidence before me, that at the time the adoption order was made in Nigeria that the sponsor was domiciled in that country. The burden rests on the appellant and indeed the sponsor to establish as such, which they have failed to do.”
The Judge went on to make observations about the effect of SM (Algeria) [2018] UKSC 9 and appeared to...
To continue reading
Request your trial