Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA157022014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 May 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

[Z A]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Revill of Counsel instructed by VIP Legal
For the Respondent: Mr Kandola, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a young child born on [ ] 2012. In April 2014 she applied for entry clearance to the United Kingdom as the adoptive child of a parent who was present and settled in the United Kingdom. The sponsor, [SH], is the aunt of the appellant and a British citizen. She and her husband have obtained a guardianship order through the Pakistani courts. They wish the appellant to join them as her adoptive parents.

2. Entry clearance was refused by the decision of 12 November 2014.

3. It was a requirement of the Immigration Rules, and particularly paragraphs 316A and 319A of the Immigration Rules, that such an adoption should be because of the inability of the original parents or current carers to look after the child prior to her being physically transferred to her prospective parent or parents. It was not accepted such was the reason for the adoption nor is it accepted that any ties had been broken as between the appellant and her biological family. Further the Requirements for a de facto adoption under paragraph 309A of the Immigration Rules had not been met. The biological parents still remain in Pakistan, and it was not considered that there were any serious or compelling grounds so as to meet the requirements of paragraph 297(i)(f). A review of that decision was sought and that decision was upheld.

4. An appeal against that decision was lodged in the First-tier Tribunal, coming before First-tier Tribunal Judge Taylor for hearing on 16 September 2015. The appeal was dismissed on all grounds.

5. Challenge has been made to that decision on a number of grounds and leave to argue the matter has been granted. Thus the matter has come before me to determine whether or not the decision contained an error of law.

6. It is common ground that at the hearing both the sponsor and her husband attended. They were represented by Ms Revill of Counsel who represented them also in the appeal before me. In essence the appeal proceeded on the basis that a detailed statement from the sponsor was presented. There was no Home Office Presenting Officer present. Thus there was little if any questioning of the sponsor as to the contents of the statement.

7. The statement itself is set out at pages 1 to 13 of the bundle together with a number of enclosures. The sponsor and her husband are British citizens, she working as a reception class teacher and her husband as a shop supervisor. They have a reasonable income which is set out in the statement. A son, [S] was born to the sponsor when she was married to another. Sadly it would seem that her current husband [Ar] is unable to provide her with further children.

8. [Ar]'s younger brother [An] is the biological father of the appellant and is married to [Sa] and they have two daughters. They are living from farming and live as a family unit in Gojra in rural Pakistan.

9. The sponsor's husband, [Ar], was unwell and as part of his recuperation travelled to Pakistan on 1 April 2012. It was during that visit that she and he learned that [Sa] was expecting [ZA], the appellant. [Sa] was not in good health. She was finding matters difficult to cope having two small children. She was suffering from severe postnatal depression and was refusing to have anything to do with the appellant when she was born. Indeed her parents were considering giving her away to another.

10. A decision was made as between the sponsor and her husband that they would take responsibility for the appellant and that was agreed by all parties. Since [Ar] was due to return to UK he appointed a neighbour [N] to look after [ZA] until he had time to return to Pakistan for her.

11. Thereafter contact was made with the Kent County Council about adopting [ZA] officially. [Ar] returned to Pakistan at the end of October and remained until the middle of December to be with the appellant. The sponsor and her husband were granted a certificate of suitability as adoptive parents and both travelled to Pakistan. They instructed a local family lawyer to obtain the guardian certificate in respect of her.

12. Since the application for entry clearance was refused it has fallen to [N] to continue to look after the appellant, the sponsor husband spending as much time as they can in Pakistan with the appellant. The sponsor speaks as to her personal circumstances and why it would be difficult for her to return to Pakistan on a more permanent basis to be with the appellant. The nanny has only been appointed on a temporary basis.

13. The First-tier Tribunal Judge first considered the matter under Rule 316A. The Tribunal sets out the general facts giving rise to the claim and the submissions which are made in connection with it is set out in paragraph 10 of the determination. The Judge was not satisfied, however, that the appellant's biological parents were unable to look after her because of her mother's severe postnatal depression and lack of acceptance of the appellant. The Judge did not find it credible that the parties were able to make a reasoned decision of the magnitude as now relied upon on the observation of just three days behaviour of the appellant's mother and in the absence of any medical or professional advice. There was little evidence of severe postnatal depression, certainly no medical evidence beyond October 2012. The evidence was noted from [N] who was the nurse employed to look after the appellant who lives next door in fact to the appellant's biological parents that they saw one another on a regular basis. The Judge found that the timescale was more based on a decision of preferred male gender. The Judge therefore found that there was no evidence that the parents were unable to look after the appellant but rather that they wished to transfer parental responsibility was based on the desire for male children. The Judge found no evidence that [N] was not capable of looking after the appellant. Whilst Ms Revill accepts that though it was open to the Judge to have come to those conclusions on the facts as presented, it was fundamentally unfair of the Judge to have made those conclusions without alerting herself or her clients to the concerns that the Judge had about the evidence. This was particularly important because there had been no overt challenge to what had been said in the statement and indeed no overt challenge in the refusal letter on the issue of credibility. If the Judge had indicated the concerns then those could have been addressed not only by submissions but also by further evidence given that the sponsor and her husband were both present and could speak directly on the issue.

14. I was invited to find that justice should not only be done but should be seen to be done and that fundamentally the objection that is made to the determination is that it lacks fairness within the terms as considered by Mr Justice McCloskey in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) as reflecting indeed the decision in the Court of Appeal in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284.

15. It is a subsidiary challenge to the interpretation of the Judge to that particular section in relation to the part played by the nurse. It is said that on a proper construction of the Rule that is not a relevant consideration. Challenge is also made to the approach taken by the Judge to paragraph 297 of the Immigration Rules, in particular whether there are serious and compelling family or other considerations which make exclusion of the child undesirable and that suitable arrangements have been made for her care.

16. As has been made clear in the statement, the sponsor and her husband have obtained the necessary certificate of approval for the adoption through the social services and have obtained the necessary guardianship order through the Pakistani courts. It is contended that there has been a genuine transfer of parental responsibility and that there are compelling circumstances why the appellant should now be permitted to return to the UK with her adoptive parents.

17. That issue has been but briefly considered by the Judge at paragraph 16 of the determination. That the appellant is being looked after by a neighbour is perhaps to beg the very fundamental question at issue in this case as to whether there has been a genuine transfer of parental responsibility and if so why it would not be a responsibility exercised by the sponsor husband in the United Kingdom. The fact that the appellant maintains some contact with her natural parents is not fatal to the issue of settlement as was determined in the case of VB v Entry Clearance Officer - Ghana [2002] UKIAT 1323, more particularly at paragraphs 14 and 15 thereof. Little recognition it is said was given by the Judge to the fact that the living conditions with the nurse was but a temporary arrangement leaving aside the issue as to why there was a transfer of parental responsibility has not been adjudicated one way or the other whether that transfer is a genuine one in all the circumstances. If it is then the question arises as to why it should not be implemented in the interests of all concerned.

18. I am concerned that the approach taken by the Judge to paragraph 297 in its entirety when related to the factual matrix as presented is inadequate and in places unclear as to the primary findings of fact that have been made or accepted.

19. The absence of a Presenting Officer created practical difficulties for a Judge under the Surendran guidelines. It is not appropriate generally for a Judge to question, or to challenge evidence in the absence of any challenge being made. However in this case it is apparent that the Judge not only did not accept evidence that was given but found it to lack credibility as well as accuracy. It does seem to me that as a matter of fairness the sponsor and her representative should have been given notice of the concerns in order that they could be addressed. Further I do not consider that paragraph 297 has been adequately and properly dealt with in the light of the evidence it was presented.

20. In many ways the issue of Article 8 stands or falls upon the determination of the Immigration Rules.

21. In all the circumstances I find that the determination as a whole is tainted both by unfairness and also above error of law. It is important to evaluate properly the factual matrix.

22. In those circumstances I set aside the decision and direct a rehearing before the First-tier Tribunal on all issues. I indicate that that is the appropriate forum having regard to the relevant Practice Directions given the necessity for further evidence to be given and for factual analysis to be made. Any such directions as shall be necessary for the furtherance of the hearing will be as determined by the First-tier Tribunal.

Notice of Decision

The appeal is allowed. The decision shall be set aside to be remade upon a de novo hearing, focussed particularly upon Paragraph 297 but not excluding other considerations.

No anonymity direction is made.

Signed Date 14th June 2016

Upper Tribunal Judge King TD