Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04564/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th March 2017
On 18th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JC
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Jarvis, HOPO
For the Respondent: Mr H Kannangara of Counsel, instructed by the Anglo Chinese Law Firm Limited

DECISION AND REASONS
1. This the Secretary of State’s appeal against the decision of Judge Herlihy, who allowed the claimant’s appeal against the entry clearance officer Beijing following a hearing at Taylor House on 26th March 2015.
Background
2. The claimant is a citizen of China born on 8th December 1999. He applied for entry clearance to settle in the UK as the dependant of his adopted parents. His application was considered under paragraphs 309A, 309B, 310, 314 and 316A of the United Kingdom Immigration Rules.
3. Paragraph 309A sets out the requirements which have to be met with respect to de facto adoptions. The claimant was not in a position to meet the requirements of paragraph 309A because at the time immediately preceding the application for entry clearance, his adoptive parents were in the UK and had not spent the twelve months immediately preceding the application for entry clearance living with him in China.
4. There is no dispute that this requirement cannot be met.
5. Neither is there any dispute that the claimant cannot meet the requirements of paragraph 310 since he has not been adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin.
6. The entry clearance officer also refused the application on a number of other grounds.
7. First, the claimant could not meet the requirements of paragraph 309B which applies to all adoption applications.
8. Second, the documents produced by the sponsors did not confirm what their immigration status was. The visa application details and the Chinese passports submitted gave different names from their immigration status documents, and did not confirm that the different names belonged to the same people.
9. Third, the entry clearance officer was not satisfied that there were serious and compelling family or other considerations which made the claimant’s exclusion undesirable and suitable arrangements had been made for his care (paragraph 310(i)(a) and (f) nor, if he had been adopted, that the adoption was not one of convenience arranged to facilitate his admission to the UK contrary to paragraph 310(xi).
10. Finally, he considered whether the claimant could travel to the UK for adoption but refused because he could not be satisfied about the sponsor’s immigration status in the UK. He also refused with respect to Article 8.
The Immigration Judge’s Determination
11. The Immigration Judge heard oral evidence from the sponsor and his wife. The sponsor explained that he came to the UK in March 2000, and his wife arrived in July 2001. They came with the help of the snakehead gangs, who threatened them and told them to use different identities. Both were finally granted indefinite leave to remain in August 2010. The sponsor had made four attempts to correct the identity situation on four occasions and had applied in 2014 for the no time limit stamp to be issued on his Chinese passport in his correct name, but without success.
12. The sponsor’s evidence was that he had three natural daughters. His adoptive son became a part of the family when he was only a few days old, in December 1999. When the sponsor and his wife came to the UK the claimant continued to live with his three adoptive sisters and they were all cared for by their paternal grandparents.
13. In 2012 the daughters applied to come to the UK to join their parents. They were refused and their subsequent appeal was allowed by Immigration Judge Miles on 15th February 2013. DNA evidence was produced and accepted by the Secretary of State. They subsequently joined their parents in the UK.
14. Judge Miles accepted the evidence and found that the sponsors were who they claimed to be. He was satisfied that the person known as G C was the same person as C L G and that his wife, known as H C was in fact the same person as H M Q.
15. The sponsor gave the same evidence in that appeal to the evidence given to Judge Herlihy. He explained that the snakehead’s agent had told them to give a false name, date of birth and place of birth to the UK Authorities, the implication being that false information would make it far more difficult to remove them from the UK and if they were removed, the snake would not be paid.
16. Immigration Judge Herlihy wrote as follows
“5.2 I have considered the documents before me and I note the determination of Judge Miles who heard the appeal of the appellant’s sisters on 15th February 2013 and found that the appellant’s adoptive parents were M H (mother) and L C (father) known in the UK as C H and G C. I find that the appellant’s adoptive parents have been granted indefinite leave to remain in the UK as C H and Q C and that the adoptive mother has now been granted residence status (no time limit) in her true name as M H although the appellant’s adoptive father has not been granted residence status in his true name of L C but only in his assumed name of G C. I am satisfied that the appellant’s adoptive parents are who they now claim to be.”
17. The Immigration Judge was also satisfied that the claimant was informally adopted by his adoptive parents shortly after his birth and that the adoption was not one of convenience arranged to facilitate his admission to the UK. She noted that the household registry document showed that he was declared as a family member on 19th September 2002, with the same date of birth. She was satisfied that he had always been a part of the family and this was not an adoption of convenience. He was not leading an independent life, as a minor, and in the care of his grandparents.
18. She said that the decision was not in accordance with the law and the relevant Immigration Rules and allowed the appeal.
19. She then turned to the assessment of the proportionality of the refusal decision outside the Immigration Rules and wrote as follows
“7.6 I find that the appellant does enjoy family life with his adoptive parents and sisters in the UK, (having lived with the latter virtually from birth until they came to the UK in May 2013, some thirteen years.) His family life with his adoptive parents is more fractured as he only spent three months with his adoptive father and less than two years living with his adoptive mother and has not seen them since they left China to live in the UK. However I am satisfied that the relationship, despite this passage of time does amount to family life: the appellant has always lived with the wider family (his adoptive parents) after his adoptive parents went to the UK together with his sisters and there is also evidence as to financial dependency by the appellant on the sponsors. I find that the appellant is now in China separated from the remainder of his family with whom he grew up (his sisters) and I find that there are compassionate and compelling circumstances in which the appellant is currently living being in the care of elderly grandparents and being the only child of his family left remaining in China. I find that the decision does amount to interference with the appellant’s Article 8 rights and that the interference is not proportionate as the respondent suggests that the appellant’s parents return to China to effect a de facto adoption which would be an unreasonable interruption to the entire family life of the appellant’s adoptive parents and sisters who are all settled in the UK.”
20. She then said that she allowed the appeal on asylum grounds and on human rights grounds.
The Grounds of Application
21. First the Secretary of State makes the obvious point that this was not an asylum appeal.
22. Second she challenged the judge’s conclusions with respect to family life.
23. Third, and this was the ground relied upon by Mr Jarvis, she argued that the judge had erred in her proportionality assessment outside the Immigration Rules. She relied on Mostafa (Article 8 in entry clearance) [2015] UKUT 112 at paragraphs
“9. Clearly there can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the Immigration Rules. These are not permissible grounds. However if, as we find to be the case here, the claimant has shown that refusing him entry clearance does interfere with his and his wife’s private and family lives then it will be necessary to assess the evidence to see if the claimant meets the substance of the Rules. This is because, as is explained below, the ability to satisfy the Rules illuminate the proportionality of the decision to refuse him entry clearance.
16. It would almost certainly be proportionate to refuse him entry clearance if he did not comply with the Rules.
21. Subject to two sets of considerations we can see no justification for stopping a husband joining his wife when a Tribunal is satisfied that their circumstances satisfy the requirements of the Rules. The first relates to their candour. For example if they had contributed to the application being refused by presenting inaccurate information or by omitting something material or committing some comparable misdemeanour. We can accept that it might be proportionate to refuse someone entry clearance whose application suffered from deficiencies such as these, because good administration requires applicants to engage with the system and, further, we consider that there are duties of candour and cooperation on all applicants.”
24. The judge had erred by failing to assess the evidence to see if the claimant met the substance of the Immigration Rules, which he plainly did not, and furthermore, they had not been candid in their application since the names given in the application form were different from those shown in the identity documents. The judge had failed to give adequate reasons for finding that the witnesses at appeal were the same people as named on the application form.
25. Finally, the judge had failed to address a discrepancy in the evidence between whether the sponsors lived in a five or a six bedroomed house and had not properly identified any compelling and compassionate circumstances.
26. Permission to appeal was granted by Judge Lambert for the reasons stated in the grounds on 15th July 2015.
27. This matter first came before Judge Chana on 9th October 2015. She did not produce any determination following the hearing. The matter was therefore transferred by Principal Resident Judge Dawson for a de novo hearing on the grounds that the deputy judge had been unable to complete her written decision within a reasonable time.
28. Thus it came before me on 30th March 2017.
Submissions
29. Mr Jarvis relied solely on ground three. He accepted that the identity of the sponsor was not at issue and did not challenge the judge’s findings on family life.
30. Mr Kannangara made the point that the grounds as drafted did not challenge the judge’s decision under the Immigration Rules. Mr Jarvis said that, whilst not explicit, on any fair reading, it was plain that the grounds were a challenge to the Immigration Judge’s decision to allow the appeal under the Rules.
31. She was wrong to do so, he said, because the claimant could not meet them. In order to be granted entry clearance to come to the UK either as the adopted child of a parent or with a view to settlement as a child for adoption, he had to produce a certificate of eligibility from the Department of Education which he had not done. In any event he could not meet the requirements for a de facto adoption, nor had he been adopted in accordance with a decision taken by the competent administrative Authority in China.
32. The claimant’s failure to meet the requirements of the Rules ought to have been the starting point for the judge’s consideration of Article 8 outside them. She had not addressed her mind to the fact that the consequence of her decision was that the claimant would be granted entry clearance not having gone through any process of adoption at all in circumstances which had not been checked by the UK Authorities or by the Chinese Authorities. It was clear and obvious that the safeguards in the Rules were therefore a purpose and the judge ought to have explained clearly why entry clearance should nevertheless be granted when none of those checks had taken place. The claimant had barely lived with the sponsors and would be uprooted from the family life which he had known in China. Moreover there was nothing in law to prevent him either making a new application now, having obtained the certificate of eligibility from the Department for Education. Indeed he could have done that at any stage in the proceedings.
33. Mr Kannangara submitted that there was no error in the decision. He said it had not been possible for the parents to effect an adoption in China because the sponsor could not travel because of the continued challenge to his identity. He was in an impossible position. He had made four requests to change his documentation to the Secretary of State and had been refused. Whilst the claimant’s mother could now travel, it would not be possible for her to effect either a legal adoption in China or a de facto adoption, without him.
Consideration of Whether There Is a Material Error of Law
34. I am satisfied that the Immigration Judge did err.
35. First she purported to allow the appeal on asylum grounds when this was not an asylum appeal.
36. Second she seemed to allow the appeal under the Immigration Rules when it is quite clear that the claimant cannot meet their requirements.
37. Third she did not take as her starting point, as she was required to do, the fact that the appeal had to fail under the substance of the Rules when reaching her considerations under Article 8. In particular she did not engage with the issue highlighted by Mr Jarvis that the claimant does not have a certificate of eligibility and therefore would be arriving in the UK as an adoptive child, or for the purposes of adoption, without any checks having been undertaken. This was clearly a material matter which ought to have been factored in to the proportionality assessment.
38. Relevant matters were not taken into account which is an error of law. The decision has to be set aside.
Remaking the Decision
39. Mr Jarvis specifically did not rely upon the challenges in the grounds to the judge’s conclusions on family life. He accepted that, even though the sponsors themselves have been in the UK for the vast majority of his life, the claimant had been raised with their three daughters as a member of the family following a cultural adoption in China in the first days of his life. He has known no other family. Although the claimant has always lived in China, first with his paternal grandparents and then, following his paternal grandmother’s death with his maternal grandparents, until 2013, he also lived with his three sisters. He enjoyed family life with them.
40. Since their arrival in the UK he has been without them. The refusal is therefore an interference with his family life, although lawful and in pursuit of a legitimate aim. The real question is proportionality.
41. In the assessment of proportionality, Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 states that the maintenance of effective immigration control is in the public interest. There is no evidence that the claimant can speak English. The other sub-sections are not relevant.
42. The starting point for my consideration is the requirements of the Immigration Rules. The relevant Rule in this case is Rule 316A, which sets out the requirements which have to be met for limited leave to be granted with a view to settlement as a child for adoption, since it is not argued that the claimant meets the requirements of paragraph 309A or 310.
43. Mr Jarvis’s principal submission was that, since the claimant cannot meet paragraph 309B, because he has not obtained a certificate of eligibility, which must be provided with all entry clearance adoption applications under paragraph 316, maintaining the refusal would not disproportionately interfere with the claimant’s Article 8 rights. The purpose of paragraph 309B is to put safeguards in place for inter-country adoptions, which ought not to be ignored. He said that it would have been possible for the sponsors to obtain the certificate at any stage.
44. Paragraph 309B reads as follows
“Inter-country adoptions which are not de facto adoption under paragraph 309A are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. As such all prospective adopters must be assessed as suitable to adopt by a competent Authority in the UK, and obtain a certificate of eligibility from the Department for Education, before travelling abroad to identify a child for adoption. The certificate of eligibility must be provided with all entry clearance adoption applications under paragraphs 310 to 316F”.
45. The claimant’s inability to provide the relevant certificate is a strong argument in favour of concluding that the refusal of entry clearance is a proportionate interference with his Article 8 rights. There are however a number of other factors which need to be taken into account.
46. First, it is clear that the circumstances envisaged by paragraph 309B are entirely different to those in this case. Paragraph 309B seeks to ensure that proper checks have been made upon persons seeking to identify children for adoption. In this case, the Secretary of State does not now challenge the fact that the claimant has enjoyed a family life with his adoptive parents and siblings for almost his entire life. Moreover, although technically a child, he is now approaching his 18th birthday and the concerns which the obtaining of a certificate of eligibility seek to address are less relevant to him.
47. Second, on the findings of the Immigration Judge, which Mr Jarvis did not seek to challenge, the claimant meets all of the substantive requirements of paragraph 316A(i) to (viii).
48. Third, Mr Jarvis said in terms that there was no challenge to the judge’s primary findings of fact on the historical elements of the claim. There is therefore no basis to question the sponsor’s evidence that he has made 4 attempts to regularise his identity status which have all resulted in failure. Mr Kannangara’s submission that no attempt was made to obtain a certificate of eligibility until the identity question was resolved has some force. That after all was the primary obstacle which the sponsors had to overcome.
49. However, an Immigration Judge had found in 2013, in a judgment not challenged by the Secretary of State, that the identity issue had been resolved. The judgment of Immigration Judge Miles was determinative of the issue. Yet the entry clearance officer, wrongly, as Mr Jarvis accepted, continued to rely on it as a ground for refusal.
50. Clearly the sponsor is far from blameless for the situation. Seventeen years ago he used a false identity on the advice of an agent. As a consequence there was a significant delay in obtaining status. The initial delay, up to 2013, lies at his door.
51. However, since then, he was entitled to expect that an issue which was resolved in 2013, would not some four years later continue to hinder his adoptive son’s attempts to join his remaining family in the UK. It is only at the eleventh hour, when the claimant is not far short of his 18th birthday, that the Secretary of State finally acknowledged that she accepts that the identity issue was resolved years ago. If the Secretary of State had not wrongfully raised identity, both at the date of decision and until today, the claimant would have been able to obtain the proper documentation either for the purposes of paragraph 310(vi) or 309B.
52. The situation has been compounded by the Upper Tribunal’s failure to fulfil its obligations, namely to produce a determination within a reasonable period of time.
53. There have been inordinate delays in this matter. The claimant first applied for entry clearance in January 2014, over three years ago. His appeal was allowed some fourteen months later and, some twenty one months later, the matter then came before the Upper Tribunal. The Deputy Upper Tribunal Judge then failed to produce a determination. No explanation has ever been given to the claimant for that failure.
54. The consequence is that a child, who applied to come to the UK when he was just 14 years old is now nearly 17½ years old.
55. This is a finely balanced case with strong arguments on both sides.
56. I apply the requirements of Section 117C and note the public interest in the maintenance of immigration control. This was an application which could not have succeeded under the Immigration Rules. However I am satisfied that the reason why the sponsor did not seek to obtain the certificate required by paragraph 309B is because he continued, despite his best efforts, to be unable to resolve his identity issue. The sole hurdle which the claimant has to overcome in order to meet the requirements of paragraph 316A, is the lack of that certificate. The best interests of the claimant are clearly to be with his siblings, with whom he has lived all his life, and his adoptive parents. The unchallenged evidence before Immigration Judge Herlihy is that his home situation in China is made difficult by the ill-health of his grandparents. On balance, I am satisfied that the refusal is a disproportionate interference with the claimant’s Article 8 rights.
Notice of Decision
57. The original judge erred in law. Her decision is set aside. It is remade as follows. The claimant’s appeal is dismissed under the Immigration Rules. The claimant’s appeal is allowed with respect to Article 8 of the ECHR.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 6 April 2017

Deputy Upper Tribunal Judge Taylor