Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/18779/2012

THE IMMIGRATION ACTS

Heard at: Field House
Determination Promulgated
On: 7th November 2013
6 January 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE BRUCE

Between

GAMF
(ANONYMITY DIRECTION MADE)
Appellant
And

Entry Clearance Officer, Manila
Respondent

For the Appellant: Mr Ifere, Kolia Solicitors
For the Respondent: Mr Walker, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a national of The Philippines date of birth 16th July 2007. In July last year she sought entry clearance to settle in the UK with her adoptive parents who are both British nationals. That application was refused on the 25th July 2012. Her appeal against that decision was dismissed by the First-tier Tribunal (Judge Jacobs-Jones) on the 7th August 2013 and it is against that decision that she now has permission to appeal.1
2. The grounds of appeal, drafted by Counsel, accept that the Appellant could not succeed under paragraph 310 (vi) of the Rules since her adoption must have been approved by a competent administrative authority or court in her country of origin. The Appellant's adoption was approved by the Regional Trial Court in Quezon City, but this is not regarded by the UK as a competent authority. The appeal is however pursued on two alternative grounds. First that the appeal should have been allowed on the basis that the Appellant met the requirements of paragraph 297 of the Rules and secondly that the First-tier Tribunal erred in its approach to Article 8, and in particular the consideration of s 55 Border's Citizenship and Immigration Act 2009.
Background and Matters in Issue
3. The Appellant's visa application form shows that the application was accepted under the category "child or other dependent of settled person". The refusal notice deals at length with the Rules relating to adoption, and very with Article 8. No consideration is given to paragraph 297(i)(f) of the Rules which provides for the settlement of a 'child of a relative'.
4. On appeal to the First-tier Tribunal it was submitted that the application should have been considered under paragraph 297(i)(f), even though this had not been expressly stated in the application. The Tribunal declined to apply the rule directly but did record the agreement between the parties that "paragraph 297 of the Immigration Rules could be considered by the Tribunal in the context of Article 8 of the ECHR": if the Appellant could show that she met the requirements of 297 the refusal of entry clearance would very likely be found to be disproportionate since there could be no justification for the interference.
5. The Tribunal made some findings in the Appellant's favour. It was accepted that the Sponsor Mr RPF is the Appellant's maternal uncle and that the arrangement for he and his wife Mrs LGF to adopt the Appellant was made with the agreement of her birth parents. The evidence showed that the Appellant's birth parents believed it to be in her best interests to be cared for by the Sponsors and that their ties to their daughter had been severed, since they lived over 250km away from where she was living with her maternal grandmother. It was accepted that the Sponsors had travelled to the Philippines to be there for the Appellant's birth and that Mrs LGF had stayed there for 9 months to look after her. She and her husband have thereafter visited the Philippines twice a year and have remitted money for the Appellant's benefit. It was also accepted that the Appellant's grandmother who is currently caring for her is now aged 86.
6. Findings which went against the Appellant were as follows. The Judge did not accept that the adoption was recognized by the UK, nor that the Sponsors had the requisite steps to be assessed in the UK as suitable for adoption. Although it was accepted that the Appellant's birth parents had relinquished parental responsibility it was not accepted that this had been transferred in toto to the Sponsors, since the Appellant's day-to-day care was the responsibility of her grandmother. There was for instance no evidence that decisions in respect of the Appellant's education or health were the sole responsibility of the Sponsors. Nor was the Judge satisfied that the Appellant's grandmother was now unable to care for her as claimed.
7. Having made these findings the Tribunal dismissed the appeal under the Rules. The Appellant could not meet the requirements of paragraph 310 because the Philippino adoption is not recognized by the UK, and the grounds of appeal to this Tribunal concede that this is so. In respect of paragraph 297 the First-tier Tribunal properly directed itself to the test at 297(i)(f) that required the Appellant to show that she is the child of a relative present and settled in the UK and that there are serious and compelling family or other considerations which make her exclusion undesirable, The Tribunal considered the evidence relating to the ill health of the Appellant's grandmother but found this insufficient to meet this high test since there were other family members living in the house with them. Moreover the Tribunal noted that the Appellant had been placed in this lady's care when her grandmother was already 80, indicating that she must be a "very capable woman"; since she was left with her grandmother the Appellant has only spent occasional holidays with the sponsors. They had not even attempted to contact the local authority in the UK with a view to arranging an assessment, even though they knew that this was a requirement from as long ago as 2011. In the absence of any such report the Tribunal could not be satisfied that the Sponsors had shown it was in the Appellant's best interests to be in the UK with them. In respect of Article 8 the determination concludes: "I am of the view that the refusal is a proportionate response to the government's aim of maintaining proper immigration control and in protecting the interests of children".
8. The grounds of appeal take issue with the "unclear" findings on whether the Appellant's biological parents were unable to care for her. It is further submitted that the First-tier Tribunal failed to take relevant evidence into account in deciding whether there had been a genuine transfer of responsibility. In respect of Article 8 it is said that the Tribunal failed to give adequate weight to the genuine nature of the relationship ("the decision is as extreme for the appellant as if the refusal prevented her from joining her biological parents") failed to consider the best interests of the Appellant and to the argument put that the decision could not be said to be proportionate since from January 2014 adoption orders in the Philippines will be recognized by the UK.
Error of Law
9. The issue at the heart of this case is whether this child should be given entry clearance to join the sponsors where there has been no adoption currently recognized by the UK and where the sponsors have not yet been assessed in the UK as suitable adoptive parents. This issue went to the Tribunal's consideration of Article 8 as well as the findings on whether there were serious and compelling reasons why she should not be excluded. Whether this question arose in relation to human or paragraph 297(i)(f) of the Rules it was determinative: if the Appellant could not provide good reason why these requirements had not been complied with, any other criticisms of the determination could not be relevant.
10. For the record I do not consider that the best interests assessment was wanting. It was simply that the Judge, faced with a dearth of information about the sponsors and their suitability as adoptive parents, had no evidential basis upon which to make a finding that it was in the Appellant's best to be with them in the UK. I am satisfied that the determination a factual error in that the evidence indicated that the Appellant and her grandmother were in fact living alone by the date of decision, not with a married daughter as found at paragraph 21. It may be that other criticisms can be made about the way that the Tribunal assessed the evidence relating to the Philippines. However none of that could be determinative if there was nothing to weigh it against. Put baldly, no matter how bad things might be in the Philippines that does not mean that it is necessarily in this child's interests to be here. All of the criticisms made of this determination in the grounds of appeal fall away in absence of any independent professional assessment of the sponsors as adoptive parents. The Judge was quite entitled to limit her consideration of proportionality to the scant finding at paragraph 25 that the decision must be a proportionate response to the need to maintain immigration control and protect the best interests of children. The legislation and regulations relating to foreign adoptions are in place to protect children. Weighty reasons would need to be given to justify granting entry clearance outwith that framework. In this case there does not appear be any particular reason why the sponsors were unable to initiate and co-operate with the assessment process. At the hearing before me Mr RPF explained that he had been sent from pillar to post by various agencies and I appreciate that this has been an extremely stressful and distressing process for the sponsors, and perhaps for the Appellant However none of the difficulties he outlined amounted to insurmountable (I do not use this phrase as a term of art) such that the failure to comply with these requirements could be overlooked or set to the side.
11. I have considerable sympathy with all of the actors involved in this case: with the sponsors, with the Appellant's ageing grandmother and with the Appellant herself. However I find that the Judge was perfectly entitled - indeed obliged - to take the view that she did. The determination does not contain any errors of law.
Decisions
12. The decision of the First-He Tribunal does not contain any errors of law and it is upheld.

Deputy Upper Tribunal Judge Bruce
10th December 2013