The decision


Heard at Field House

On 27 May 2004

RS (Adoption - Inability to care - Rejection of child on gender grounds) India [2004] UKIAT 00226


Date Determination notified:

18 August 2004


Mr C P Mather – Chairman
Mr P D Burns
Mr A Smith







For the Appellant: Mr R de Mello, Counsel
For the Respondent: Mr G Phillips, Home Office Presenting Officer


1. The Appellant is a citizen of India.

2. With permission she appeals the determination of an Adjudicator, Mr R A Cox, which was promulgated on 18 June 2003. In that determination the Adjudicator dismissed the Appellant’s appeal against the refusal of the Respondent to grant her entry clearance to the United Kingdom for the purpose of settlement as the adopted child of [ ] (the Sponsor) and her husband [ ]. The Adjudicator also considered the question of whether the appeal should have been allowed on Article 8 ECHR grounds and rejected that aspect of the appeal.

3. The Immigration Rule dealing with entry clearance as an adopted child is to be found in paragraph 310 of HC 395. We set out below the parts of the Rule for consideration in this particular appeal.

4. It is important to note that this Rule was amended on 1 April 2003. The Respondent’s decision, which is the relevant date for the purposes of this appeal was made on 28 March 2002, before that amendment. The Adjudicator’s decision was promulgated after it. It is to be conveniently found, in the appropriate form, in the second edition of Immigration Law Handbook.

5. We note that the amendment may have a significant impact on any fresh application if the Appellant could overcome the problem with which the rest of this determination is concerned.

6. Rule 310, so far as relevant reads as follows:-

"310. The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances;
(a) both parents are present and settled in the United Kingdom; ….. and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and
(v) can, and will be maintained adequately by the adoptive parent or parents without recourse to public funds; and
(vi) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident; and
(vii) was adopted at a time when:
(a) both adoptive parents were resident together abroad; or
(b) either or both adoptive parents were settled in the United Kingdom; and
(viii) has the same rights and obligations as any other child of the marriage; and
(ix) was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and
(x) has lost or broken his ties with his family of origin; and
(xi) was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and
(xii) holds a valid United Kingdom entry clearance for entry in this capacity."

It is the meaning of the word inability in para 310(ix) and its relevance on the facts of this appeal, with which we are largely concerned.

7. The Adjudicator did not find the Sponsor a credible witness. He gave a number of reasons for saying that and there a number of reasons why he dismissed the appeal. The question of credibility impacted particularly on the Adjudicator’s finding as to whether or not the adoption was one of convenience and also whether there had been a genuine transfer of parental responsibility. However, it seems to us that the Appellant could not succeed in any event on the facts as they were asserted to the Adjudicator.

8. The Appellant’s story, as it appeared to the Adjudicator, is as follows. The Sponsor’s husband has two brothers and two sisters, all whom are married. With the exception of one brother, they all live in India. The Sponsor herself also has a sizeable family in India. The Sponsor’s husband’s younger brother, [ ], lives with his family in Diwali, a district of Jalandhar. They had two children, a daughter who at the time of the Adjudicator’s determination was about 15, and a son who was then 13. That son, tragically, had a serious accident when he was aged 3. He broke his hip and leg and is handicapped. The Sponsor, in a statement said that because of their son's disability, [ ] and his wife tried to have another male child. The Adjudicator quoted from the Sponsor’s statement and we can do no better:-

“After this incident the parents were trying for a male child. On 24 July 1996 [ ], my sister-in-law, gave birth to a baby girl. Immediately after her birth the mother rejected the child as she was hoping for a baby boy. Both the parents were very upset and distressed at the thought that they would not be able to provide a good standard of living and good education to the three children, one being handicapped and the others being daughters. They were thinking she is a burden and they cannot financially cope with it. Because still in India people think daughters to be a burden, as the parents not only have to bear the expense of their upbringing but also marry them as well. People are generally frightened about the dowry system. After the second day of the birth of the child I went to see the family and found out how the parents felt about their daughter. I tried to console and assured them to financially help them as when required. This did not have any impact on my sister-in-law and she completed rejected the child and even refused to feed it. On the other hand, I did not have a daughter which I and my husband always wanted. That is why we tried for a third child after the birth of a second son, but it was a boy again. So on the same day I phoned my husband and explained the whole situation and expressed my desire to adopt the daughter. My husband was fully agreed with me and suggested me to take away the child immediately and complete the adoption formalities later on.”

9. When the Sponsor suggested adoption to the Appellant’s parents, they agreed immediately. The Sponsor took the child away to her own village on the basis that she and her husband would take full responsibility for the child and bring her up as their daughter. Some formalities were dealt with and an adoption deed registered on 29 January 1997. The Appellant remained living with the Sponsor and her parents-in-law until the Sponsor came to the United Kingdom in May 1998. The Appellant remained with the Sponsor’s in-laws until her mother-in-law died in June 1999. Her elderly father-in-law could not properly look after the Appellant and an arrangement was made for the Appellant to live with the Sponsor’s sister about four or five miles away. That is where she remains.

10. The Adjudicator rejected the appeal for a number of reasons but his first finding was that the Appellant was not adopted due to the inability of the original parents to care for her, but rather because of their unwillingness to do so.

11. Mr de Mello argued that the adoption did occur because of the inability of the original parents to care for the Appellant. In support of that he referred us to a passage in MacDonald’s Immigration Law and Practice, 5th Edition at paragraph 11.93. It says this:-

“Inability to care should not be interpreted more strictly than in the ‘exclusion undesirable’ cases and thus a clearly evidenced rejection of a child by its natural parents or abuse of the child will suffice. Incapability includes not just actual inability but also unwillingness to care.”

MacDonald cites a decision Asima Kausar 00/TH/1572. Mr de Mello referred to that authority in his skeleton argument but did not have it to hand for the hearing. We were able to retrieve a copy of the decision of a Tribunal chaired by His Honour Judge Lakin, sitting with two lay members and promulgated on 26 June 2000. In Kausar, there was a factually complicated situation. The Sponsor’s daughter lived in Pakistan and had three children. She was effectively deserted by her husband (the children’s father). He had gone illegally to the USA, to try and improve his economic position, but made no attempt, apart from one remittance of £50, to keep in touch with his children. The sponsor's daughter died (aged 36) only six months after the birth of the third child. The father of the children would not come back from the United States and the Sponsor’s wife looked after the children in Pakistan for a number of years. The Sponsor himself remained in the United Kingdom because of work commitments. After about three years the Sponsor’s wife, who survived on money sent back by the Sponsor was unable to cope and the Sponsor became concerned about the welfare of the children. Their father was prepared to sign a document handing over responsibility for the children. The Sponsor’s wife then became seriously ill and came back to the United Kingdom, leaving the children in the care of the Sponsor’s brother. The Sponsor’s wife then died in the UK. The Sponsor continued to send money back to maintain the children. The issue in that case, as in this, included the question of a de facto adoption. But in Kausar the Presenting Officer also argued that any transfer of parental responsibility to the Sponsor had not been because of the children’s father’s inability to care for the children but because he was unwilling to do so. The Appellant in Kausar argued that the Tribunal should not give the word inability a strict literal interpretation, but should adopt a broader more humanitarian approach. He argued that the Rules were intended to promote family life and should be interpreted accordingly and that it would wholly wrong to dismiss the appeal on a technicality of language. The Tribunal appears to have accepted that argument and said:-

“Viewed in the context of this case, it is perfectly proper to interpret the word in such a way as to include unwillingness in the sense of a self imposed inability. If we are wrong about this, the simple fact is that at the time when his wife died, Tariq was in the USA and has remained in the USA. His absence from Pakistan clearly means that he is unable to care for his children.”

12. Whether or not that Tribunal was correct in coming to the conclusion it did as to the interpretation of the word inability, it is clear that the factual basis of that appeal was entirely different from this. There, there was an absentee father who could not care for the children whilst he was in America.

13. In contrast in this appeal, it is quite clear that had the Appellant been male, her parents would have had no difficulty in looking after her at all. It is clear from the evidence that having rejected their daughter they were proposing to try for another son. The rejection was not due to any inability to care but simply a rejection on the basis of the child’s gender.

14. We are not satisfied that the Rule was intended to apply to children who were handed over to adoptive parents from choice rather than out of necessity. Sub-paragraph 9 has two parts to it. The first part refers to the inability of the original parents to care for the child, and the second a genuine transfer of parental responsibility. An entirely voluntary handover, by agreement could comply with the second part of the Rule but not the first. Had it been intended that the word inability would include unwillingness then there would be no point in the first requirement in the sub-paragraph. The second requirement alone would have been sufficient to give the Rule its effect.

15. The passage in MacDonald suggests that “inability to care should not be interpreted more strictly than in the exclusion undesirable cases”. That in turn refers to 'paragraph 11.79 et seq.' Mr de Mello did not seek to argue that the Appellant should succeed because of such an interpretation. Indeed the evidence does not suggest that the Appellant was living in poor conditions but rather that she is with the Sponsor’s sister and is attending school in their village. There is no suggestion that she is suffering any deprivations or living in poor conditions such as to justify an argument that a more humanitarian approach to the definition of inability might be appropriate.

16. There is a significant difference between inability and unwillingness. It takes a considerable amount of imagination to see the two things as synonymous. An inability is an involuntary situation whereas an unwillingness is voluntary. Even if the decision in Kauser is correct, the situation in that appeal could arguably be described as approaching an inability to care, whereas in this appeal it is not even arguable.

17. We indicated our view that Mr de Mello could not successfully argue that the Appellant should succeed under sub-paragraph 9, and that being the case his appeal must fail. We did not therefore feel it necessary to resolve the more technical issue as to whether this adoption can be said to have been 'in accordance with the decision taken by the competent administrative authority or court in India'.

18. Because the Appellant cannot comply with all the provisions of paragraph 310 of the Immigration Rules HC 395, the appeal on immigration grounds must be dismissed.

19. Mr de Mello did not seek to argue that the Appellant could succeed under Article 8 ECHR. The appeal is dismissed.

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