Tribunal decisions

The decision

UT Neutral Citation Number: [2025] UKUT 00352 (IAC)

ST (Adoptions: ‘overseas’ adoptions: para 310) India

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Heard at Field House

THE IMMIGRATION ACTS

Heard on 29 July 2025
Promulgated on 23 September 2025

Before

MR JUSTICE RITCHIE
UPPER TRIBUNAL JUDGE OWENS
UPPER TRIBUNAL JUDGE MANDALIA

Between

ST
(ANONYMITY DIRECTION MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent
Representation
For the Appellant: Mr B Wood, counsel, Richmond Chambers LLP
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Adoption: An adoption of a child which takes place outside the United Kingdom can arise in the context of a number of different scenarios. However, there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules. The courts or other bodies concerned with the law of adoption perform different functions from that of the Secretary of State.

Although the recognition of an overseas or foreign adoption does not of itself prevent permission to enter or remain being refused, it plainly has implications upon the assessment of an Article 8 claim because of the recognition of the clear and permanent parent and child relationship. The adoption does not bind the Secretary of State in immigration proceedings, but an adoption that is otherwise recognised by the UK is plainly a relevant consideration in the consideration of an Article 8 claim.

‘Appendix Adoption’ was introduced into the Immigration Rules by the Statement of Changes (HC590) and took effect on 6 June 2024. Nevertheless, where an application for entry clearance, permission to enter or permission to stay, has been made before 6 June 2024, such applications will be decided in accordance with the Immigration Rules in force on 5 June 2024.

Paragraph 310(vi)(a) of the Immigration Rules: The natural meaning of the language used in para. 310(vi)(a) requires that at the point in time at which the adoption takes place, the adoption is to be effected by a decision taken by a competent administrative authority or Court, not merely some process or procedure, albeit lawful, by which the adoption takes place.

Paragraph 310(ix) of the Immigration Rules: The plain language of the Rule requires the appellant to establish that they were adopted due to the inability of their original parents or current carers to care for them. The focus is upon the position as it was at the time of the adoption. The word ‘inability’ used in the rules, adopting the plain ordinary language of the word means ‘not being able to do something’. The natural and ordinary meaning of the word ‘inability’ refers to “lacking skills, means or opportunity”. The rule does not cover a situation in which natural parents are able to care for the child, if they choose to do so, but, as an exercise of choice, do not want to do so.

The Hindu Adoptions and Maintenance Act 1956 (“HAMA”): Evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules that the applicant was adopted “in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom”.

The decision of the Upper Tribunal in SK ("Adoption" not recognised in UK) [2006] UKAIT 68 is not authority for the proposition that an adoption under HAMA amounts to a decision taken by a Court or competent administrative authority.

Decision and Reasons
The Appellant is a child. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

Upper Tribunal Judges Mandalia and Owens, The Honourable Mr Justice Ritchie
Introduction
1. This is the decision of the Tribunal, to which all three members have contributed.
2. On 13 November 2022 the Appellant applied for entry clearance to the United Kingdom as the adopted child of adoptive parents who we will refer to as [MT] and [LA] (“the Sponsors”). The application was refused by the Respondent on 21 February 2023 (the decision). The Appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge Peer (“the Judge”) for reasons set out in a decision dated 4 March 2024.
The Issue
3. The appeal before us raises an important issue regarding the interpretation of paragraph 310 of the Immigration Rules as in force as at the date of the decision on 21 February 2023 concerning the requirements for indefinite leave to enter the United Kingdom as an adopted child under local procedures in India.
4. The Appellant is an Indian national who was born on 28 August 2014. Her biological parents are nationals of India, and we will refer to them as [AM] and [MD] (“the Birth Parents”). AM is the brother of LA. The adoption was therefore an inter-familial arrangement.
5. The adoptive parents are British citizens. The issue is important because of (1) the interplay between the law of adoption and the powers vested in the Secretary of State for the Home Department regarding immigration control, and (2) recognition in the UK of adoptions in India under the the Hindu Adoptions & Maintenance Act 1956 (“HAMA”), in the context of applications for leave to enter or remain in the UK.
The Background Facts
6. The Sponsors married on 3 September 2002 and were formerly nationals of India. MT is a Consultant Psychiatrist and LA is a Clinical Psychologist. They both previously worked for the NHS. They were naturalized as British citizens on 22 September 2010. They both also retain an ‘Indian Overseas Citizen’ document.
7. Despite trying for a baby, the Sponsors were unable to conceive. In November 2011, having lived in the UK for several years, the Sponsors returned to India to provide care for MT’s father. Before the Appellant’s birth, the Sponsors agreed, with the approval of the Birth Parents and the wider family that they would adopt her. The Appellant’s father was struggling with addiction issues and neither of the Birth Parents were working.
8. The Appellant was born in August 2014. The Sponsors visited her in November 2014, but the Appellant remained living with her Birth Parents because of the Sponsors’ work commitments, the need for a support system to be arranged to assist in their parenting and because the Appellant was being breast fed.
9. This appeal arises from an arrangement, recorded in a ‘Deed of Adoption’, agreed between the Birth Parents and the Sponsors in March 2015 when the Appellant was about seven months old. The Deed of Adoption recorded that the Appellant was adopted by the Sponsors and would live with them. The Appellant had all the rights of an adopted daughter, the Sponsors would be responsible for her maintenance and education, and they agreed to bring her up. The Deed of Adoption also recorded that on 9 March 2015 the physical act of giving and taking the child in adoption and other customary rites and ceremonies were performed in the form of a “swasti pujah” in the presence of elders, locals, and friends as necessary. It is uncontroversial that LA was not in fact present during the ceremony on 9 March 2015. The Deed of Adoption was signed on 13 March 2015. The Appellant later went to live with the Sponsors in September 2015, together with the parents of AM and LA (“the grandparents”).
10. To enable the Sponsors to obtain identity documents for the Appellant and to make arrangements for her care, proceedings were issued in a Court in India. In those proceedings a Civil Judge Senior Division, Imphal West, India, considered whether the Deed of Adoption was a valid adoption under the Hindu Adoptions & Maintenance Act 1956 (“HAMA”). The judge considered the evidence before the Court, including statements provided by the Sponsors and AM, and decided, in a judgment and order dated 4 December 2015, that the Deed of Adoption executed by the Sponsors and the Appellant’s Birth Parents was a valid adoption under HAMA.
11. The Sponsors made an application for a British passport on behalf of the Appellant in February 2016. The application was refused by HM Passport Office on 28 September 2016 on the basis that the adoption was not a ‘Convention adoption’ (i.e. an adoption effected under the law of a country or territory in which the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, as in force and certified in pursuance of Article 23(1) of the Convention) as required by section 1 of the British Nationality Act 1981 (as amended).
12. On 12 August 2016, in India, the Central Adoption Resource Authority (“CARA”) provided written confirmation that it had no objection to the “family/relative” adoption of the Appellant by the Sponsors. Although the material provided by CARA postdated the adoption, the material followed a ‘Home Study Report for prospective adoptive parents’ that was in part completed by the Sponsors and a home visit completed on 1 April 2016 by a social worker. The report set out background information regarding the Sponsors, their employment, financial circumstances and accommodation. There was also information set out regarding the reasons for the adoption, the views of other family members and the plans for the care of the Appellant in the future. No concerns were raised by the social worker and although the report did not state in terms, that the social worker recommended adoption , the social worker confirmed that all family members were happy with the adoption and that there was a healthy relationship within the family and a mutual understanding between the Sponsors.
13. From 2016, MT had been working as a short term locum in New Zealand. The Appellant and LA would visit him and, in November 2019, the Sponsors decided to move to New Zealand. Although that was initially for a short term, the Covid pandemic caused the family to remain in New Zealand. LA was permitted to remain in New Zealand for work and the Appellant was permitted to remain there for education.
14. In September 2022, MT was offered a job as a Consultant Psychiatrist in Adult Community Mental Health at Yeovil Hospital in Somerset, with a view to the family making a permanent move to the UK. On 13 November 2022, an application was made on behalf of the Appellant for entry clearance to the United Kingdom. The family returned to India at the beginning of December 2022 in anticipation of their move to the UK.
15. The application was refused by the Respondent on 21 February 2023 and the family therefore returned to New Zealand so that the Sponsors could continue to work until the Appellant’s immigration status in the UK was resolved. MT has since secured temporary employment for a period of five years in Australia and since January 2024 the Appellant and Sponsors have been living in Australia.
Decision under appeal
16. The Appellant’s appeal against the Respondent’s decision to refuse her application was dismissed by the Judge and it is that decision which is the subject of the appeal before the Upper Tribunal. We will set out the decisions and reasons which are challenged below.
Grounds of Appeal
17. The Appellant claims the decision of the Judge is vitiated by material errors of law. Three grounds of appeal are relied on:
(1) the Judge made a material misdirection of law in her consideration of paragraph 310(vi)(a) of the Immigration Rules.
(2) the Judge misapplied the test to be applied when considering the requirement set out in paragraph 310(ix) that the Appellant was adopted due to the inability of the original parent(s) to care for her by adopting too high a threshold.
(3) the Judge made irrational findings when considering the best interests of the Appellant and there is a flawed analysis of whether the decision to refuse entry clearance is proportionate on Article 8 grounds.
Permission
18. Permission to appeal was granted by Upper Tribunal Judge Owens on 17 February 2025. We will return to the decision of the Judge when we address each of the grounds of appeal.
The Legal Framework
The Immigration Rules
19. Before we address the grounds of appeal in detail it may be helpful for us to refer to paragraph 310 of the Immigration Rules in force as at the date of the decision of the Judge which governed the requirements for 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:
“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; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
(f) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; or
(g) in the case of a de facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purposes of settlement; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and
(v) DELETED
(vi) (a) 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, being a country whose adoption orders are recognised by the United Kingdom; or
(b) is the subject of a de facto adoption; 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 adoptive parent’s or parents’ family; 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; and
(xiii) does not fall for refusal under the general grounds for refusal.”
20. Paragraph 316A of the Immigration Rules set out the requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted. Although the Appellant is not seeking permission to enter the UK for the purposes of being adopted, the requirements were addressed in the decision of the Judge.
21. The Judge found that the requirements of para. 316 were not met in three material respects. (1) she was not being adopted due to the inability of her birth parents to care for her; para 316A(vi); (2) she had not lost or broken or did not intend to lose or break her ties with her family of origin; para. 316A(vii); (3) she would not be adopted in the United Kingdom by her prospective parents in accordance with the law relating to adoption in the United Kingdom because the ‘adopter’s habitual residence’ was not in England and Wales and the required letter from the Department for Education has not been provided (see paras. 316A(viii) and 309B of the Immigration Rules).
22. ‘Appendix Adoption’ was introduced into the Immigration Rules by the Statement of Changes (HC590) and took effect on 6 June 2024. Nevertheless, where an application for entry clearance, permission to enter or permission to stay, has been made before 6 June 2024, such applications will be decided in accordance with the Immigration Rules in force on 5 June 2024. It is to be noted that Appendix Adoption provides for entry under the ‘Recognised Overseas Adoption Route’ with a requirement that the overseas adoption must have been in accordance with a decision taken by the competent Central Authority as set out in AD16.4 or a court in the child’s country of origin or the country in which they are resident. If that requirement is not met, the rules now require that the adoption must have been recognised by order of the High Court in the UK (see Appendix Adoption AD 16.5).
Interpretation of the Immigration Rules
23. The principles for the interpretation of the Immigration Rules were set out by Lord Briggs (with whom Lord Kitchin, Lord Burrows, Lady Rose and Sir Declan Morgan agreed) in R (Wang) v Secretary of State for the Home Department [2023] UKSC 21. He ruled that:
“29. It was common ground between counsel that the leading authority on the general principles to be applied in interpreting the Immigration Rules is Mahad v Entry Clearance Officer [2010] 1WLR 48 and, in particular, the following two passages in the judgment of Lord Brown of Eaton-under-Heywood JSC. The first is his citation at para 10 from Lord Hoffmann’s judgment in MO (Nigeria) v Secretary of State for the Home Department [2009] 1WLR 1230, para 4:
“Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”
30. The second is Lord Brown JSC’s own contribution, later in para 10:
“Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy.”
Relevant Acts and Conventions
24. An adoption of a child which takes place outside the United Kingdom can arise in the context of a number of different scenarios. A key consideration is whether the adoption was made under the 1993 Hague Convention of Protection of Children and Co-operation in Respect of Intercountry Adoption (“a Hague Convention adoption”) or elsewhere, for example a designated country.
25. By operation of Section 66(1) of the Adoption and Children Act 2002, (“ACA 2002”), the meaning of adoption includes a ‘convention adoption’ (S.66(1)(c)); an ‘overseas adoption’ (S.66(1)(d); or an ‘adoption recognised by the law of England and Wales and effected under the law of any other country’ (S.66(1)(e)).
26. An ‘overseas adoption’ ranks automatically as an adoption and is defined in S.87(1) of the Adoption and Children Act 2002 as (a) an adoption of a description specified in an order made by the Secretary of State, being a description of adoptions effected under the law of any country or territory outside the British Islands, but (b) does not include a Convention adoption.
27. The specification of overseas adoption from 3 January 2014 is now governed by the Adoption (Recognition of Overseas Adoptions) Order 2013 (SI 2013 No 1801) (“the Adoption Order 2013”) which states:
“Overseas Adoptions
2. (1) An adoption of a child is specified as an overseas adoption if it is an adoption effected under the law of a country or territory listed in the Schedule after the coming into force of this Order and is not a Convention adoption.
(2) In this Article “law” does not include customary or common law.
Evidence of an overseas adoption
3.—(1) The following documents may be provided as evidence that an overseas adoption has been effected—
(a) a certified copy of an entry made, in accordance with the law of the country or territory concerned, in a public register relating to the recording of adoptions and showing that the adoption has been effected; or
(b) a certificate that the adoption has been effected, signed or purporting to be signed by a person authorised by the law of the country or territory concerned to sign such a certificate, or a certified copy of such a certificate.
(2) Where a document produced by virtue of paragraph (1) is not in English, the Registrar General may require the production of an English translation of the document before being satisfied of the matters specified in paragraph 3 of Schedule 1 to the Adoption and Children Act 2002.
(3) Nothing in this Article may be construed as precluding proof, in accordance with the Evidence (Foreign, Dominion and Colonial Documents) Act 1933, or the Oaths and Evidence (Overseas Authorities and Countries) Act 1963, or otherwise, that an overseas adoption has been effected.
…
SCHEDULE
…
India”
Ground 1: Paragraph 310(vi) of the Immigration Rules
28. The Judge referred to para. 310(vi)(a) of the Immigration Rules and ruled that, in this context, the Rules were designed to reflect the UK adoption law and that what was required was that at the point in time that the adoption occurred, it was further to a decision taken by a Court or competent administrative authority, provided the UK recognised the adoption orders of that country. At paragraph [42] the judge said:
“I accept that the UK recognises adoption orders effected under the law of India as per the Adoption Order 2013 as ‘law’ is therein defined.”
29. The Judge went on to refer to the Court Order and legal opinion relied upon by the Appellant and said, at para. [43]:
“…I accept the adoption is valid in India. I find that the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA. There is no court ‘adoption order’ or order granting an adoption in this case unlike in Buama. The adoption was not conducted or effected by legal authorities in India. In this context, the CARA documents present somewhat of an anomaly in referring to prospective adoptive parents but post-dating both the 9 March 2015 customary adoption and the court order and as such were clearly not part of any consideration by a court as to, for example, suitability for adoption or the best interests of the Appellant. The court order dated 4 December 2015 is an order recognising the validity under Indian law of the existing adoption effected by a customary ceremony on 9 March 2015.”
30. At paragraphs [44] and [45] the Judge found that:
“44. In light of my findings regarding the circumstances of the Appellant’s adoption, I have concluded that the Appellant has not demonstrated that she meets limb (a) of paragraph 310(vi).
45. The Respondent does not however dispute that the adoption is a de facto adoption. I accept that a de facto adoption is presented and that the Appellant thus meets the alternative limb (b) of paragraph 310(vi).”
31. The Judge found at para. [45] that the Appellant met the alternative limb of paragraph 310(vi) of the rules (so the Appellant was the subject of a de facto adoption) and one might think that no further consideration of para. 310(vi)(a) is necessary. However, Mr Wood submits the proper interpretation of para. 310(vi)(a) remains important because the Appellant will be in a more ‘advantageous’ position in terms of the accrual of other rights going forward. Although neither Mr Wood nor Mrs Nolan were able to articulate clearly what additional rights the Appellant may have for immigration purposes if she falls within the former limb of paragraph 3010(vi) rather than the latter, we have addressed the issue.
32. In summary, Mr Wood submits the Judge accepted that the Appellant was adopted in accordance with the legal process set out in HAMA. The order made by the Court in India was a valid order and the Deed of Adoption executed by the Sponsors and the Birth Parents was a valid adoption under the HAMA. It was therefore, as the Judge accepted at para. [43], an adoption which was valid in India. Mr Wood refers to the decision of the Upper Tribunal in SK ("Adoption" not recognised in UK) [2006] UKAIT 68, in which the Upper Tribunal ruled that:
“14. … although the evidence is that the legal process in India did amount to a decision taken by the competent administrative authority there, India is not a country whose adoption orders are recognised by the United Kingdom. The relevant legislation is the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19), as variously amended…” (our emboldening).
33. Mr Wood submits that SK predated the Adoption Order 2013 The relevant legislation is now the Adoption Order 2013 and India is now a country whose adoption orders are recognised by the United Kingdom. It follows, Mr Wood submits, that the Appellant was adopted in accordance with a decision taken by the competent administrative authority or court in India, being a country whose adoption orders are recognised by the United Kingdom. However, here the Judge introduced, at para. [41], a requirement that the adoption was “further to” a decision taken by the competent administrative authority or Court in India. There was no requirement for a decision or order by a competent administrative authority at the time of, or prior to the adoption. Adoption by persons of the Hindu faith in India is governed by HAMA and provided the conditions laid down for a valid adoption are met, there is an adoption under the law of India. The Adoption Order 2013 provides that evidence that an overseas adoption has been affected can be provided by a certificate that the adoption has been effected, signed or purporting to be signed by a person authorised by the law of the country to sign such a certificate. The use of the words “has been effected” is indicative of the ‘past tense’ and something that has already happened. In any event, Article 3 of the Adoption Order 2013 does not provide an exhaustive list of documents, other evidence is permitted.
34. Mr Wood submits the Immigration Rules must be read in a purposive way, so that they are consistent with the requirements of the law of England and Wales relating to the adoption of children from abroad. The Judge’s construction of para. 310(vi)(a) of the Rules has the effect that an adoption which is recognised as an overseas adoption under the Adoption Order 2013 is not recognised as an adoption for immigration purposes despite that fact that the Adoption Order 2013 does not in any way exclude adoptions in India under HAMA. As the Upper Tribunal said in SK:
“23. … The Immigration Rules cannot properly be segregated from the general law for the purpose of attack on their rules on adoption: on the contrary, the Immigration Rules are, so far as we can see, constructed in such a way as to be consistent with the rest of English and United Kingdom law on the effects of overseas adoptions. They need to be coherent, because otherwise the person might be treated as a child of the family for immigration law purposes but not otherwise; or vice versa. Mr Gill asserts that there is no rational basis for treating India differently from the countries that are on the list of designated countries: he provided no arguments in support of that assertion. As we understand it, the position in India, Pakistan and Bangladesh is that adoption is regarded as a private arrangement between families, with no public effects or need for public scrutiny. In the absence of evidence we can take no firm view on the issue, but we incline to the view that, if that is so, it would be a proper reason for exclusion from designation.”
35. Mr Wood further submits that the Judge had regard to immaterial matters when considering the involvement of CARA. The Judge referred, at para. [43], to the documents presenting as somewhat of an anomaly because they referred to the Sponsors as ‘prospective adopters’ yet post-dated the events of 9 March 2015 and the declarations made by the Court in India. This was not a matter relied upon by the Respondent and the involvement of the CARA was not required prior to the adoption. The Judge failed properly to assess the role of the CARA and the evidence of MT that they had involved the CARA to obtain identity documents on the Appellant’s behalf. In an unreported decision of the Upper Tribunal in BAS v Entry Clearance Officer, EA/03936/2020 and UI-2021-001713 dated 18 December 2022, Upper Tribunal Judge Frances accepted that under the law of India, the individual had been lawfully adopted under HAMA and there was no requirement to register the adoption with the CARA.
36. Mr Wood submits the Judge failed to address the effect of her exclusion of a valid adoption under HAMA from adoptions recognised as an ‘overseas adoption’ under the Adoption Order 2013. The Judge said, at para. [43], that “the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA.”. The Judge’s conclusion that Appellant’s adoption was a legally valid adoption in India is, Mr Wood submits, inconsistent with her finding that it was “a customary or family adoption”. Article 2(2) of the Adoption Order 2013 operates so that a “customary or common law” adoption is not an overseas adoption within the scope of Article 2(1).
37. Mrs Nolan submits the Judge considered the ordinary meaning of the words in the Immigration Rules which required that the Appellant “was adopted in accordance with a decision taken by the competent administrative authority or court”. The Appellant was not adopted in accordance with a decision taken by the competent administrative authority or court. At para. [41] the Judge referred to the relevant rule and she was right to say that what was required was that, at the point in time that the adoption occurred, it was further to a decision taken by a court or competent administrative authority, provided the UK recognised the adoption orders of that country. Mrs Nolan submits that in the unreported decision relied upon by the Appellant, (BAS v ECO) the Judge referred to a decision of the High Court in India in which it was held that an application for adoption under HAMA subsequently registered under HAMA could be challenged on the basis it should have been made under the Juvenile Justice (Care and Protection of Children) Act 2015. There was, she submits, a process by which an Adoption under HAMA could have been registered. In the appeal before us, there was no evidence of the adoption having been registered by the authorities. The Court in India had simply made a declaration that the adoption was a valid adoption under HAMA. Applying a literal interpretation of the Rules, the Appellant was simply not adopted in accordance with a decision taken by the Court nor any competent administrative authority.
Analysis
38. India is a signatory to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption which was developed to respond to the serious and complex human and legal problems in intercountry adoption. The Appellant accepts the adoption here does not arise from a ‘Convention adoption order’ as defined in section 144 ACA.
39. The focus of the Appellant’s claim was that her adoption was an overseas adoption, effected under the law of a country or territory listed in the Schedule to the Adoption Order 2013, and therefore recognised as a full adoption in England and Wales. Put simply, the Appellant’s case is that once it is established that there is a valid overseas adoption, the Appellant’s status as the adopted child of the Sponsors is conferred by operation of Indian law. The overall purpose of the Immigration Rules (which is to enable the child to enter the UK as an adopted child) is satisfied.
40. There is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules. The central theme that runs through the international instruments and the domestic legislation concerning the adoption of children is that the best interests of the child must be the determining factor in any decision. The courts or other bodies concerned with the law of adoption perform different functions to that of the Respondent. In R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293, Hoffman LJ ruled that a judge in proceedings concerning children must be guided solely by the interests of the child and that it would make no sense for his decision to prevent the Secretary of State from exercising a power based on altogether different considerations. In his judgment in A (A Child: Female Genital Mutilation: Asylum) [2021] All E.R 396, the President of the Family Division, Sir Andrew McFarlane referred to the authorities concerning the relationship between family law and immigration law and ruled that:
“49. As Lord Scarman, Hoffmann LJ and Sir James Munby separately make clear, the Secretary of State and the family courts are each operating a different and entirely distinct jurisdiction that has separately been entrusted to them by Parliament. Whilst, as Mr McKendrick submitted, the two jurisdictions may be complementary, they are wholly separate with no potential for any structural crossover. Notwithstanding the probable engagement of Art. 3 , there is simply no jurisdictional space in the structure that has been created by Parliament in which the family court can reach across and directly interfere in the exercise by the Secretary of State's exclusive powers with respect to the control of immigration and asylum.”
41. In contrast to other orders which may be made by a Court, for example under the Children Act 1989 or under the inherent jurisdiction of the High Court, we acknowledge that the ‘adoption’ of a child is a feature of the child’s identity that alters the fundamental status of the child. Adoption involves the transfer of the rights and duties of birth parents to the adopters and is likely to have an emotional impact upon a child as well as a significant impact upon living arrangements and the child’s day to day care. Adoption is generally reserved to cases where the welfare of the child requires intervention and creates a parent/child relationship with the adoptive parent(s).
42. The proper operation of immigration controls is also a matter of considerable importance to the Respondent. The Immigration Rules relate to the exercise by the Secretary of State of powers lawfully conferred upon her in the context of immigration or asylum. There are regulated immigration routes into the UK for children who have been adopted abroad.
43. The relevant provisions in the Immigration Rules contain distinctive criteria. Para. 310(vi)(a) imposes a requirement that the Appellant was adopted in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom” (our emphasis). In many cases an overseas adoption will be effected by a decision taken by a competent administrative authority or court. There will be evidence of the adoption in the form envisaged in Article 3 of the Adoption Order 2013.
44. We note that there is no limitation in para. 310(vi)(a) defining the competent administrative authority or court, provided the decision is made by a competent administrative authority or court in a country whose adoption orders are recognised by the UK. The interpretation of para. 310(vi)(a) contended for by Mr Wood would require the Rule to be read so that we disregard the words requiring a ‘decision taken by the competent administrative authority’ so long as there was a valid adoption in accordance with the law of a country listed in the Adoption Order 2013. If that is what Parliament had intended, it was not stated. The interpretation contended for by Mr Wood requires us to defy the language of the Rule. We consider that the natural meaning of the language used in para. 310(vi)(a) requires the adoption to be effected by a decision taken by a competent administrative authority or Court, not merely some process or procedure, albeit lawful, by which the adoption takes place. Contrary to what is said by Mr Wood, the child must be “adopted in accordance with the decision…”, and so it is the point in time at which the adoption takes place that is important. In the appeal before us the adoption occurred before the confirmatory decision.
45. We have considered the decision of Upper Tribunal Judge Warr in Buama (inter-country adoption – competent court) [2012] UKUT 00146 (IAC) but it does not assist the Appellant. We accept that para. 310(vi) of the Immigration Rules does not appear to contemplate the Respondent questioning the order of a competent court which is valid on its face. On the facts of that case the adoptive parents were concerned about the arrangements for the care of the child following the death of her mother. They contacted Ghanaian social services to seek advice and subsequently instructed a Ghanaian Counsel and adoption arrangements were made. Following a visit by Ghanaian social services there was a Court hearing and an adoption order was granted. Adopting the words of para. 310(vi)(a), the Appellant was “adopted in accordance with a decision taken by the competent administrative authority or court in [her] country of origin”.
46. Mr Wood submits the conclusion reached by the Judge in this appeal contradicts what was said by the Upper Tribunal in SK (“Adoption” not recognised in UK) India [2006] UKAIT 00068. It was submitted that the Judge imposed a requirement that the adoption was “further to” a decision taken by the competent administrative authority or court. The facts in SK bear resemblance to the facts here. The child in SK was, as here, an Indian national who was adopted by her aunt and uncle who had been unable to conceive. A decision was taken that SK would be adopted by her uncle and aunt who she had always known as her ‘mother and father’. The arrangement was formalised in India in what was described as a “legal process, followed by a religious ceremony”. In setting out the facts, the Tribunal said:
“8. As we have said, there was a legal process and a religious ceremony. There is evidence before us that the legal process amounts to a valid adoption under the relevant Indian statute, the Hindu Adoption and Maintenance Act 1956 (which, despite its title, applies also to those of the Sikh religion). We are content to assume that, so far as Indian law is concerned, the Appellant is the child of the sponsors.”
47. The Upper Tribunal referred to the relevant Immigration Rules concerning adopted children and at paragraph [14] said:
“The problem in either case is that, although the evidence is that the legal process in India did amount to a decision taken by the competent administrative authority there, India is not a country whose adoption orders are recognised by the United Kingdom. The relevant legislation is the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19), as variously amended…”
48. The law has moved on since that case. India is now listed in the Adoption Order 2013 and the adoption of a child such as the Appellant is specified as an overseas adoption effected under the law of India. The evidence of the ‘legal process’ in India that led the Tribunal to say that it amounted to a decision taken by the competent administrative authority in India is not set out in SK. Mr Wood submits the question of recognition in the UK of adoptions in India under HAMA, in the context of applications for leave to enter or remain in the UK for immigration purposes, is a matter of general importance, and so it is necessary for us to say a little more about the evidence in that regard.
49. In the appeal before us, there was evidence before the Judge that the Appellant was adopted in accordance with the legal process set out in HAMA. An expert, Mr Uttam Datta, an Advocate enrolled with the Bar Council of Delhi who practices in the Supreme Court of India and the High Court of Delhi and whose expertise was not challenged, set out the conditions for a valid adoption:
“a. Person’s capacity to give in adoption and capacity to adopt (Section 6).
b. A Hindu major male of sound mind has the capacity to take on a daughter in adoption with the consent of his living wife (Section 7).
c. A major Hindu female of a sound mind has the capacity to take a daughter in adoption with the consent of her living husband (Section 8).
d. Only the father, mother or guardian of a child has the capacity to give the child in adoption (Section 9).
e) The child sought to be adopted must be a Hindu, below 15 years of age, unmarried and has not been already adopted (Section 10 f).
f. Child to be adopted must actually be given and taken in adoption with the intent to transfer the child from the family of its birth. The performance of religious or customary ceremony among Hindus called “datta homam” is not essential to the validity of an adoption (Section 11 vi).”
50. Mr Datta advised that:
“The Indian courts have laid down that the most essential part of the process of adoption is the giving and taking of the child with an intent to transfer the child from the family of its birth, as a pre-condition of a valid condition. The performance of the customary ceremony of “datta homam” has been recognized by the Indian courts as evidence of giving and taking of the child with an intent to transfer from the family of its birth, to fulfil the conditions stipulated in Section 11….”
Mr Datta referred to several judicial rulings of the Supreme Court in India and of the High Court in several provinces. It is sufficient to note that the focus of the Courts is the requirements for ‘consent’ when ‘taking’ or ‘giving’ the child, and the ‘actual giving and receiving’ of the child in adoption, albeit a ‘ceremony’ is not essential provided there is other evidence of the ‘giving’ and ‘taking’ to fulfil the requirement.
51. Mr Datta advised that if the parties had executed a registered document of adoption, S.16 of HAMA created a legal presumption that the adoption had been carried out. He referred to two decisions of the Supreme Court in India (Jai Singh v Shakuntala (2002) 3 SCC 634) and Mst. Deu and Ors v Laxmi Narayan and Ors, 1996 Supreme Court (1998) 8 SCC 701) in which the Court considered S.16 and referred to the statutory presumption where a ‘registered document pertaining to adoption’ or a ‘document registered’ was produced before any court purporting to record an adoption. Here, the ‘Deed of Adoption’ was registered on 16 March 2015, and Mr Datta confirmed that there was no requirement prescribed in HAMA for the adoption to be ‘validated’ through a court order, but here the parties obtained a declaratory decree dated 4 December 2015 from a competent court confirming there to be a valid adoption under HAMA.
52. What is clear from the expert evidence before the Judge is that there are some general conditions laid down for there to be a valid adoption under HAMA that is effective in India. There was nothing in the evidence before the Judge that any of the conditions involved any oversight or a decision by a competent administrative authority or court in India. The expert evidence was that there is no requirement set out in HAMA that a decision was to be taken by a Court and we discern no evidence in the expert report of any similar requirement in HAMA for the decision to be taken by a competent administrative authority. At its highest, there was a statutory presumption that where a document, such as a ‘Deed of Adoption’ was produced before any Court purporting to record an adoption, should there be an issue as to whether an adoption was valid according to the law in India, that would generally prevail.
53. Returning to the decision of the Upper Tribunal in SK, it follows from our analysis of adoptions under HAMA that unlike an adoption order made by a Court in India or one that follows a decision of a competent administrative authority, evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules that [the Appellant] was adopted “in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom”. We do not consider that the decision of the Upper Tribunal in SK is authority for the proposition that an adoption under HAMA amounts to a decision taken by a Court or competent administrative authority.
54. We consider that Mr Wood was correct to accept that the wider risks to children associated with abuse, contravention or circumvention of the immigration laws of the UK and the potential for trafficking, provide a rationale for the additional requirement in the Immigration Rules that the child has to be adopted in accordance with a decision taken by the competent administrative authority or court. This is a safeguard of a decision informed by the sort of considerations that might be relevant when a Hague Convention adoption is being considered, particularly as between countries that are signatories. The safeguard may prevent, particularly in the context of familial adoptions, the risk of arrangements being entered into without any proper scrutiny or oversight and any objective regard to the welfare or interests of the child divorced from the wishes of the family.
55. We pause to note that Appendix Adoption as now in force still requires that an overseas adoption must have been in accordance with a decision taken by the competent Central Authority, as set out in AD 16.4, or a Court in the child’s country of origin, or the country in which the child is resident. (AD 16.2). If that requirement is not met, the adoption may be recognised by order of the High Court in the UK (AD 16.5). Presumably, here, that would take the form of an application to the Family Division for recognition of the ‘Indian adoption’, with all the scrutiny that would require.
56. The Judge recorded at para. [31] of her decision that the Respondent did not challenge the validity of the order made by the Civil Judge of the Senior Division, Imphal West, in India. At para. [35], the Judge referred to the ‘legal Opinion’ provided by Mr Datta. The Judge noted that Mr Datta concluded that the adoption of the Appellant conformed to the legal requirements of and fulfilled all the conditions for a valid adoption under the HAMA. At paragraph [43] of her decision the Judge found that:
“…I accept the adoption is valid in India. I find that the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA. There is no court ‘adoption order’ or order granting an adoption in this case unlike in Buama. The adoption was not conducted or effected by legal authorities in India. In this context, the CARA documents present somewhat of an anomaly in referring to prospective adoptive parents but post-dating both the 9 March 2015 customary adoption and the court order and as such were clearly not part of any consideration by a court as to, for example, suitability for adoption or the best interests of the Appellant. The court order dated 4 December 2015 is an order recognising the validity under Indian law of the existing adoption effected by a customary ceremony on 9 March 2015.”
57. The Judge ruled that para. 310(vi)(a) of the Rules was not satisfied because, as she put it, “... the adoption was not “conducted or effected by legal authorities in India”. The Appellant was not adopted in accordance with a decision taken by the competent administrative authority or court.
58. On the proper interpretation of the Rules, the conclusion we have reached following our consideration of the evidence regarding this legal local adoption under HAMA is that there was no error of law in the Judge’s decision. Thus, the first ground of appeal was not made out.
round 2: Paragraph 310(ix) of the Immigration Rules (The ‘inability of the original parents’ And ‘genuine transfer of parental responsibility)
59. At paras. [47] to [61] the Judge addressed the requirements in para. 310(ix) of the Immigration Rules that the Appellant was adopted due to the inability of her birth parents to care for her.
Inability
60. The Judge referred to the evidence before the Tribunal that the Appellant’s Birth Parents were described to be ‘struggling’ to manage and that neither parent was working with the father said to have addiction issues and ADHD. There was also evidence before the Judge regarding the support provided by the grandparents towards the care and education of the Appellant’s elder sister. The Judge referred to the evidence regarding the health of the Appellant’s birth father, the treatment he received and his death on 5 January 2017. At para. [48] the Judge found that:
“…A person with addiction issues and a diagnosis of ADHD is not per se unable to care for a child and other than the Sponsors’ assertions which refer to ‘struggling’ there is no evidence demonstrating that at the relevant time namely the time of the adoption that the birth father was not able to care for the Appellant. I concluded that the evidence of treatment in 2012 does not provide a basis for a finding or conclusion that the birth father was unable to care for the Appellant at or around the time of the birth.”
61. The Judge noted that the Appellant’s birth mother ‘currently works in a primary school’ and that she lives with the Appellant’s grandparents who also provide her with financial support and pay the Appellant’s sister’s boarding school fees. The Judge noted the requirement in the Rule was that the adoption was due to the inability of the Birth Parents to care for the Appellant. She noted that the Appellant had continued to live with her birth parents until September 2015 and that for two to three months thereafter, her grandparents lived with the Sponsors and assisted with her care. The Judge found that the documents relied upon did not refer to the reason for the adoption as being related to the inability of the Birth Parents to care for the Appellant. She referred to the information set out in the ‘Home study report’ and CARA documents which referred to a ‘mutual agreement’ for relinquishing the care of the Appellant. The Judge referred to the care provided by the Appellant’s Birth Parents not only after her birth, but also after the adoption in March 2015 and concluded, at para. [54], that the evidence did not demonstrate, to the necessary standard, that the adoption was due to the inability of the Birth Parents to care for the Appellant.
62. Mr Wood submits the Judge misapplied the test of ‘inability’ in the context of the particular facts and circumstances by reading a ‘high threshold’ into the concept of ‘inability’. He submits the Judge placed undue weight on the consent of the Appellant’s Birth Parents to the adoption. Mr Wood submits the general reference to a person with addiction issues and a diagnosis of ADHD not being unable per se to care for a child suggests the Judge had in mind a ‘notional comparator’ rather than the application of the plain ordinary meaning of the word ‘inability’. He submitted that the care of a child is multifaceted and the undue focus upon the consent of the parents within what was a ‘familial adoption’ impacted upon the Judge’s analysis of whether the Appellant was adopted due to the inability of her Birth Parents to care for her. Mr Wood submits the Judge was required to look at the care that would be available to the Appellant ‘going forward’ when considering whether the adoption was due to the inability of her Birth Parents to care for her.
Analysis
63. We do not accept that, when considering whether the requirement that the Appellant was adopted due to the inability of her Birth Parents to care for her, the Judge was required to carry out some form of ‘forward looking’ analysis. The plain language of the Rule required the Appellant to establish that she was “adopted due to the inability of [her] original parents or current carers to care for [her]”. The focus is, as Mrs Nolan submits, upon the position as it was at the time of the adoption. That much is clear from the use of words “was adopted due to”. Put another way, it is the reasons for the adoption at the time of the adoption that are important. Documents that post-date the adoption itself are capable of shedding light on the reasons for the adoption, but the first limb of para. 301(ix) is the requirement to establish that the child was adopted due to the inability of the original parents (or current carer(s)) to care for the child.
Inability continued
64. Mr Wood referred to the judgment of the Court of Appeal in S (A Child) v Entry Clearance Officer, New Delhi [2005] EWCA Civ. 89 and submitted that the Court of Appeal referred to the natural and ordinary meaning of the word ‘inability’ as “lacking skills, means or opportunity”. He submitted the Judge had imposed a high threshold into the concept of inability, beyond the ordinary definition, which was not justified in the circumstances of this case. The lack of skills and means were demonstrated, Mr Wood submits, by the evidence concerning the finances of the family including dependence on the Appellant’s grandparents for the support of the Appellant’s elder sister and the health of the Appellant’s birth father.
65. In S (A Child), an application by the child to join her adoptive parents in the UK had been refused on the ground that S had not satisfied para. 310(ix) of the Immigration Rules because her natural parents had not had an "inability" to care for her, but had rather been unwilling to care for her. That decision was upheld on appeal. Pill LJ said:
“20. As to the meaning of paragraph 310(ix) of HC 365, I agree with the reasoning and conclusions of the adjudicator and the Tribunal. The word “unable” is defined in the Concise Oxford Dictionary, tenth edition as meaning “lacking the skill, means or opportunity to do something”. The natural parents in this case lacked neither the skill, nor the means, nor the opportunity to care for the Appellant. They simply did not wish to do so. That was the choice they made.
21. The Rule covers children whose natural parents are unable to care for them. That does not cover a situation in which natural parents are able to care for the child, if they choose to do so, but, as an exercise of choice, do not want to do so. The concepts of inability and unwillingness are quite distinct. The presumptive adopter may be faced with a situation in which the natural parents are able to care for the child, but are unwilling to do so. That is precisely the situation which arose in this case. I cannot read the first limb of 310(ix) in any other way, through having full regard to the duty of the Court under section 3 of the 1998 Act.”
66. At para. [47] of her decision, the Judge summarised the evidence regarding the care of the Appellant and her sister, by her Birth Parents. The Judge noted, at para. [48], the subsequent death of AM in January 2017 and the medical evidence concerning his cannabis dependence and ADHD. At para. [51] the Judge noted that the contemporaneous adoption documents did not refer to the reason for the adoption as in any way being related to the inability of the Birth Parents to care for the Appellant. At para. [51] the Judge referred to what was said in the CARA document regarding AM’s occupation and the income of the Birth Parents.
Analysis
67. We do not accept the judge had in mind a ‘notional comparator’. Her reference to a person with addiction issues and a diagnosis of ADHD “not per se being unable to care for a child” was nothing more than an observation when she was addressing the evidence before her of the Sponsors that the birth parents were ‘struggling’ to manage. It is perhaps important to note that ‘struggling’ to care or manage is quite different to an ‘inability’. Being ‘unable’ to do something means, as Pill LJ said in S (A Child) “lacking the skill, means or opportunity to do something”. We add that the word ‘inability’ used in the rules, adopting the plain ordinary language of the word means ‘not being able to do something’. It is clear in our judgment that the Judge carefully considered the evidence before her regarding the circumstances surrounding the adoption of the Appellant in India, including the financial support provided by the Appellant’s grandparents for payment of the boarding school fees relating to the Appellant’s elder sister and the impact that the health of AM had upon his ability to work. The Judge noted, at [50], that notwithstanding the adoption in March 2015, the Appellant did not move to live with the Sponsors until September 2015, and even then, that was with support provided by the Appellant’s grandparents. The evidence was, as the Judge said:
“The Appellant remained in the care of her birth parents for a period of six months after birth and a further six months after the point of adoption.”
68. The Judge reached a clear conclusion, at para. [53] regarding the paucity of evidence beyond the assertions of the Sponsors that at the time of the adoption in March 2015, either or both of the Birth Parents had demonstrated an inability to care for the Appellant or that the adoption itself was due to any such inability. In our judgment, on the evidence before her, it was plainly open to the Judge to conclude, as she did at para. [54]:
“I have considered all the evidence available and I have concluded that the evidence available does not demonstrate to the necessary standard of balance of probabilities that the adoption was due to the inability of the birth parents to care for the Appellant.”
We cannot detect in any of the reasons given by the Judge any indication that she did not apply the correct test or imposed too high a threshold as Mr Wood submits.
Genuine transfer
69. At paras. [55] to [62] of her decision the Judge addressed the additional limb in para. 310(ix) of the Rules that there has been a genuine transfer or parental responsibility. The Judge accepted, at para. [62], that the evidence established to the relevant standard that there had been a genuine transfer of parental responsibility. That finding was not challenged by the Respondent. That however on its own does not assist the Appellant when the first limb is not made out.
Ground 3: The Article 8 Proportionality Assessment
70. The appeal before the FtT was against the Respondent’s decision to refuse the Appellant’s human rights claim on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. Having concluded that the Appellant is unable to meet the requirements set out in the Immigration Rules, the Judge addressed the Article 8 claim outside the Rules. She had no hesitation in finding that the Appellant had established a family life with the Sponsors and that that the decision to refuse the Appellant leave to enter had consequences of such gravity as to engage the operation of Article 8. Although the Judge said at para. [107], that the decision to refuse entry to the UK did not interfere with her family life as it was then currently enjoyed, she went on to accept that the refusal of entry clearance presented some interference with family life in the sense that it prevented the continuation of family life with the Sponsors in the United Kingdom. The Judge found that the interference was in accordance with the law, and that the interference was necessary to protect the legitimate aim of immigration control. The central issue in the appeal was therefore whether the decision to refuse leave to enter was proportionate to that legitimate aim. The Judge’s consideration of that issue was set out in paras. [110] to [121] of the decision.
71. Mr Wood submitted that the Judge erred in saying, at para. [105], that the current circumstances are that the Appellant is the child of the Sponsors under Indian Law but there has been no adoption recognized by the UK or in accordance with UK law. The recognition of the adoption in the UK was a material factor and the error renders the Judge’s overall assessment irrational. Mr Wood submits the Judge acknowledged that the best interests of the Appellant, is a primary but not a paramount consideration; ZH Tanzania v Secretary of State for the Home Department [2011] UKSC 4. However, she failed to apply the test correctly, having taken into account irrelevant factors such as the possibility of the Sponsors acquiring a ‘certificate of eligibility’ as referred to in para. 309B of the Immigration Rules concerning inter-country adoptions that may be subject to S.83 ACA. The adoption of the Appellant did not have an ‘inter-country’ element and was not a Hague Convention adoption. Finally, Mr Wood submits that the Appellant currently resides in Australia with the Sponsors on a ‘short-term visa’ which is contingent on MT’s employment. The Judge found at para. [117] that the Appellant had no connection to the UK. The Judge acknowledged the absolute right of the Sponsors as British citizens to return and reside in the UK but failed to have regard to their ability to do so without considering the Appellant’s ability to enter the UK as part of the family unit. The Judge failed to have any proper regard to the impact of the refusal of entry clearance on the Sponsors.
72. We do not need to address each of the criticisms made by Mr Wood regarding the Judge’s analysis of the best interests of the Appellant and whether the decision to refuse leave to enter is proportionate. In our judgment there was a fundamental error in the approach of the Judge which is material to her assessment of proportionality. The Judge found at para. [43] that the Appellant had been adopted by the Sponsors in accordance with HAMA and the adoption “is valid in India”. For reasons that we have already set out at some length in our consideration of ground one, evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules, but that is not to say, as the Judge did at para. [105], that “the Appellant is a child of the Sponsors under Indian law but there has been no adoption recognised by the UK or in accordance with UK law.” India is now listed in the Adoption Order 2013 and so the adoption of a child such as the Appellant is specified as an overseas adoption effected under the law of India. Contrary to what was said by the Judge, it is therefore an adoption which is recognised by the UK. On this we consider that the Judge fell into error.
73. We cannot be satisfied that the error made by the Judge was immaterial. If she had started her assessment of proportionality on the correct footing that there was a valid overseas adoption effected under the law of a country listed in the schedule to the Adoption Order 2013, and thus recognised by the UK, that may have had an impact upon her consideration of other relevant factors. The recognition of an overseas or foreign adoption does not of itself prevent leave to enter or remain being refused, but it plainly has implications upon the assessment of an Article 8 claim because of the recognition of the clear and permanent parent and child relationship. The adoption does not bind the secretary of state in immigration proceedings, but an adoption that is otherwise recognised by the UK is plainly a relevant consideration.
74. In our judgment there is force in the criticisms made by Mr Wood regarding the Judge’s consideration of the best interests of the Appellant, which were plainly relevant to the overall consideration of whether the decision to refuse entry clearance was proportionate. The best interests are "a primary" consideration and could be outweighed by other compelling rights-based factors, including those set out in Article 8(2).
75. A fact sensitive assessment is required, which will include the circumstances surrounding the HAMA adoption. On the particular facts here, the Judge concluded, having regard to the significant length of time that the Sponsors have cared for the Appellant and during which she has lived with them as a family unit, that there has been a genuine transfer of parental responsibility and that the adoption is not one to be regarded as “of convenience arranged to facilitate the Appellant’s admission to the UK”. The extent to which the requirements of the rules are met, and where they are not met, the reasons for that, are relevant to the overall assessment.
76. Standing back, we are satisfied that the Judge erred in her assessment of whether the decision to refuse permission to enter was disproportionate and thus unlawful under section 6 of the Human Rights Act 1998. Therefore, we consider that decision of the Judge must be set aside.
Disposal
77. As to disposal, by virtue of section 12(4) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal may make any decision which the FtT could make if it were re-making the decision and may make such findings of fact as it considers appropriate. The remaining issues are narrow. We accept, as Mr Wood submits, there is limited fact-finding required and that the appropriate course is for the decision to be remade in the Upper Tribunal.
78. For the avoidance of doubt, the following findings of the FtT are preserved:
a. The UK recognises adoption orders effected under the law of India as per the Adoption Order 2013 as ‘law’ is therein defined.
b. The adoption of the Appellant was valid in India and conformed to the conditions laid down in the Hindu Adoptions & Maintenance Act 1956.
c. The Appellant could not satisfy the requirement in para. 310(vi)(a) of the Immigration Rules.
d. The Appellant did satisfy the alternative requirement in para. 310(vi)(b) of the Immigration Rules.
e. The Appellant did not satisfy the requirement in para. 310(ix) of the Immigration Rules that she was adopted due to the inability of her original parents to care for her. There was a genuine transfer of parental responsibility to the adoptive parents.
f. The Appellant satisfied the requirement in para. 310(x) of the Immigration Rules.
g. The adoption of the Appellant was not one of convenience arranged to facilitate her admission to the UK, see para. 310(xi) of the Rules.
h. The Appellant did not meet the requirements for 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.
i. For the purposes of Article 8, the Appellant has established a family life with the Sponsors. The decision to refuse the Appellant leave to enter has consequences of such gravity as to engage the operation of Article 8. The refusal of entry clearance presents some interference with family life in the sense that it prevents the continuation of family life with the Sponsors in the United Kingdom. The interference is in accordance with the law, and the interference is necessary to protect the legitimate aim of immigration control.
79. The issues to be determined when the decision is remade in the Upper Tribunal are limited to:
i) The best interests of the Appellant; and
ii) Whether the decision to refuse leave to enter is proportionate to the legitimate aim of immigration control.
Notice of Decision
80. The decision of FtT Judge Peer is set aside.
81. The findings made by FtT Judge Peer as set out in para. [78] above are preserved.
82. The appeal is to be listed for further hearing before Upper Tribunal Judge Owens for the decision to be remade in the Upper Tribunal on the first available date with a time estimate of 2 hours.
83. The Appellant shall file and serve any witness statements and any other evidence that she relies upon in support of her appeal within 14 days.
84. No later than 14 days before the date of the hearing, the Appellant must provide to the Upper Tribunal and the Respondent a composite electronic bundle which complies with the President’s Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC).
85. The composite bundle must contain the following documents and must be structured in the following way:
Part A
The decision of the FtT
The grounds of appeal upon which permission was granted
The decision of the Upper Tribunal granting permission
This error of law decision

Part B
Any rule 15(2A) application to rely on evidence not before the FtT
Any evidence to which the application under rule 15(2A) relates

Part C
All documentary evidence relied upon by the Appellant in the FtT

Part D
All documentary evidence relied upon by the Respondent in the FtT

Upper Tribunal Judge Mandalia
The Honourable Mr Justice Ritchie
Upper Tribunal Judge Owens

27 August 2025