Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01080/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 October 2016
On 2 November 2016

Before

RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

P S
(Anonymity Direction Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sharma, Legal Representative
For the Respondent: Mr Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of India born on 13 August 2010. He appealed against the decision of the respondent dated 4 December 2014 refusing her entry clearance to the United Kingdom for settlement as the adopted daughter of [NM] and [SK]. The appeal was heard by Judge of the First-tier Tribunal C. A. S. O'Garro and dismissed in a decision promulgated on 5 November 2015.
2. An application for permission to appeal was made and permission was granted by Upper Tribunal Judge Bruce on 13 September 2016. The permission states that it is arguable that the First-tier Tribunal erred in the imposition of an "insurmountable obstacles" test and the Tribunal was bound to have regard to the relevant factors set out at sections 117A to D of the Nationality, Immigration & Asylum Act 2002.
3. There is a Rule 24 response dated 27 September 2016. The response states that this is a case in which it was conceded at the commencement of the First-tier hearing that the Immigration Rules could not be satisfied. It goes on to state that the judge fell foul of the Court of Appeal case law of Singh [2015] EWCA Civ 74 and SS Congo and Others [2015] EWCA Civ 387. The judge does not refer to any compelling factors and the response states that it is apparent that there are not any as the judge then delved into a proportionality assessment outside the Rules. The response states that the judge dismissed the appeal under this limb, so his error is not material. The response goes on to deal with the phrase "insurmountable obstacles" at paragraph 23 of the decision. It states that this has no materiality as the judge clearly paid regard to T (Jamaica) [2011] UKUT 483 and at paragraph 21 he paid regard to section 117B matters.
The Hearing
4. The appellant's representative submitted that the appellant's adoptive mother is British and is a nurse in the United Kingdom. She earns a good salary and has a property in the United Kingdom. He submitted that it must be in the child's best interest to be with both her parents, (which she is not at present). He submitted that the appellant has been validly adopted under Indian law. This has been accepted by the First-tier Judge. He submitted that at paragraph 17 of the decision the judge finds that there is a close relationship between the appellant and her adoptive parents and that there is family life.
5. We asked the representative about compelling circumstances in this case and he submitted that because the appellant's adoptive mother is working in the United Kingdom the appellant will not be a burden on the state. At present her parents are apart as her adoptive father is in India looking after the appellant.
6. We asked the representative if he accepts that this application cannot meet the terms of the Rules and he accepted this. He submitted that the terms of the judge's decision make it clear that it would be unreasonable to keep the child away from her mother and that the child would be better off in the United Kingdom.
7. We asked the representative about paragraph 23 of the decision which refers to "insurmountable obstacles" and suggests that the appellant's mother can relocate to India and the family unit can live together there. The representative submitted that the appellant should not live separately from one of her parents, especially as her mother is in the United Kingdom lawfully.
8. The Presenting Officer made his submissions referring to the Rule 24 response. We were referred to paragraph 25 of the decision which states "I have been provided with no evidence that satisfies me that it would be unreasonable to expect the appellant's adoptive parents to proceed to undertake a convention adoption which is recognised by the United Kingdom." He submitted that at paragraph 16 the judge accepts that there has been a valid adoption under Indian law but this is not recognised in the United Kingdom under paragraph 310. He submitted that this is the reason this application cannot meet the terms of the Immigration Rules. He submitted that "insurmountable obstacles" is not the correct test and he put to us that the only compelling circumstance is that it would be unreasonable for the appellant's adoptive mother to relocate and this is not sufficient to meet the compelling circumstances test.
9. The Presenting Officer submitted that the judge has taken into account the said case of T (Jamaica) and we were referred to paragraph 22 of the decision.
10. He submitted that although section 117 of the 2002 Act has not been specifically referred to in paragraph 20 of the decision, that is what the judge is dealing with in that paragraph and at paragraph 21 section 117B is referred to and is dealt with adequately.
11. The Presenting Officer submitted that the appellant's adoptive mother is working, has a house and is financially independent but he submitted that these are not positive factors which can be taken into account. These are neutral factors. He submitted that the judge has approached this claim correctly.
12. At paragraph 26 of the decision the judge accepts that the adoptive parents are separated because the child has to live in India. Her mother lives and works in the United Kingdom but the appellant is with her adoptive father. He has been the main care giver, her adoptive mother makes regular visits to see her and they telephone each other. The Presenting Officer submitted that family life can be continued in this way and that is the judge's decision.
13. The Presenting Officer submitted that although this application cannot meet the terms of the Immigration Rules there is a resolution to this and that is that the appellant's adoptive parents should undertake a convention adoption which is recognised by the United Kingdom. He submitted that once this is done a new application can be made which will meet the terms of the Rules. He submitted that this is a sad situation but the judge was entitled to come to the conclusion he did and there is no error of law in his decision.
14. The appellant's representative submitted that he is relying on his grounds of appeal.
Decision and Reasons
15. At paragraph 11 of the First-tier Tribunal's decision it is stated that the appellant's representative, Mr Sharma, accepted that the appellant cannot meet the requirements of the Immigration Rules for admission of a child to join an adoptive parent who is present and settled in the United Kingdom. This goes to the core of this appeal. What is being argued by the appellant's representative is that the claim should be allowed under Article 8 of ECHR outside the Rules.
16. The situation is that if the appellant's adoptive parents proceed to undertake a convention adoption which is recognised by the United Kingdom, the terms of the Immigration Rules can be satisfied when this is achieved. Because the situation can be resolved in this way, the claim under Article 8 outside the Rules cannot succeed.
17. We accept that there is an error in paragraph 23 of the judge's decision when she refers to "insurmountable obstacles" but this is not a material error. The judge has dealt properly with section 117A to D of the Nationality, Immigration & Asylum Act 2002 at paragraph 21 of the decision.
18. There are no compelling factors which is why the judge dealt with a proportionality assessment outside the Rules.
19. The judge at paragraphs 25 and 26 of the decision spelled out what the appellant's adoptive parents should do to enable the claim to succeed under the Rules. They should undertake a convention adoption and make a new application.

Notice of Decision
20. There is no material error of law in Judge Cas O'Garro's decision promulgated on 5 November 2015 and that decision must stand
21. Anonymity has been directed.

Signed Date

Deputy Upper Tribunal Judge Murray