Tribunal decisions

The decision

IAC-AH-AL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/20748/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 December 2013
On 23 December 2013

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

Miss Oluwafunmilayo Modupe Akinnola
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Oke
For the Respondent: Ms A Holmes, HOPO

DETERMINATION AND REASONS
1. This is a rehearing of the appellant’s appeal against the decision by the respondent to refuse her entry clearance to the United Kingdom for settlement as the adopted child of Mr Edward Oladeji Paul and Mrs Olayinka Queen Paul pursuant to paragraphs 310 and 297 of the Immigration Rules HC 395, as amended. The respondent’s decision is dated 26 September 2012.
2. The appellant’s appeal was dismissed by First-tier Tribunal Judge Tootell in a decision promulgated on 8 August 2013. In a decision promulgated on 5 November 2013 I found that the judge made material errors of law such that the determination should be set aside and remade. The errors of law were as follows:
“(i) The judge failed to make any finding at all in respect of the issues raised by the ECO under paragraph 297: that is whether the appellant and her sponsor are related as claimed and whether 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 (297(i)(f)).
(ii) In respect of the refusal under paragraph 310, the judge failed to deal with subparagraph (iv) which states “can and will be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parents or parents own or occupy exclusively”.
(iii) In considering Article 8 the judge failed to have regard to the sponsor’s witness statement which details her contact with the appellant and her visits to Nigeria.
(iv) In respect of the adoption order, I do not find that the use of the word “accepted” by the ECO meant that the ECO accepted that there was a credible adoption. I find that the ECO was merely saying was that he was accepting that the appellant had submitted her adoption court papers. However, for the reasons given by him, he doubted that the adoption was credible. I accept the argument in the grounds that para 310 (vi) does not contemplate the ECO questioning the order of a competent court which is valid on its face but I find that this does not prevent the ECO from raising concerns about the genuineness of the adoption in the absence of relevant documents. I find whilst the judge dealt that the concerns raised by the ECO, she failed to consider subparagraphs (ix), (x) and (xi) of para 310.”
3. The sponsor, Mrs Olayinka Queen Paul, gave evidence before me. She adopted her witness statement dated 5 July 2013. She was born on 20 December 1962 and is a British citizen. The appellant is her adopted daughter. The appellant was born in Nigeria on 6 June 2001. The appellant’s original birth certificate got lost in the course of the family moving home at various times during the father’s service with the Nigerian Army. The appellant provided a declaration of age sworn by her adoptive mother to confirm her age when she made her application. In support of the hearing today the sponsor submitted a certified copy of the appellant’s birth certificate issued on 18 November 2013.
4. The sponsor said that the appellant’s father was Warrant Officer Dotun Akinnola and her biological mother was Mrs Mary Akinnola. Both her parents are deceased. Her mother died on 27 January 2008 and her father on 24 May 2010. The sponsor submitted the original death certificates of the appellant’s parents, which were said to have been submitted with the original application.
5. The sponsor said that the appellant’s father was her brother. Her brother had named her as his next of kin on his army documents as a result of which she received a letter of condolence from her brother’s regiment and his other records of service with the army, including payment of his burial expenses and other entitlements due to him by the Nigerian Army. The sponsor also produced the original Letters of Administration she obtained on 24 May 2012 in respect of her late brother’s property. She also produced various photographs of her brother, his wife and the appellant when she was a baby; photographs of her and her husband Mr Paul when they got married with the appellant as her bridesmaid and photographs of various members of the family. There were also photographs of her brother in army uniform and of the appellant in her school uniform, taken with her class during speech day and also end of school photographs.
6. At the time of the application the sponsor said that the appellant was a student at the Air Force Primary School. The sponsor submitted the appellant’s school reports, receipts of payment of school fees and school medical records. There were also receipts from NAF Hospital in Ikeja of monies received from the sponsor. The sponsor explained that these were payments she made when the appellant was taken to the hospital because she was unwell.
7. The sponsor said that the appellant lived in army barracks with her father until his death on 24 May 2010. As the sponsor was in the UK, the sponsor’s father, that is the appellant’s paternal grandfather, came and took her to live with him in Ondo in the three to four months before the sponsor arrived in Nigeria to organise the funeral of her brother. The monies that she spent on her brother’s funeral were reimbursed by the Nigerian Army.
8. The sponsor said that following her brother’s death she engaged a lawyer in Nigeria to process the adoption application of the appellant. The lawyer was in Ota and that was why the adoption application was made in Ota. She said Ota is a big city. She explained that there are not that many lawyers that practice in adoption and the only lawyer she was able to get was the one in Ota. She submitted to the ECO in support of the appellant’s application the “Enrolment of Order” issued by the Presiding Magistrate and Panel Member at the Ota Magisterial District of the Chief Magistrates’ Court Ogun State of Nigeria on 14 December 2010. It was signed by the Principal Registrar. The Enrolment Order was in respect of the application brought before the court under Section 5(1) of the Adoption Revised Laws of Ogun State 2006.
9. The sponsor said that her father, that is the appellant’s grandfather, died on 25 August 2013. She went to Nigeria to bury him on 26 September 2013. She stayed at a hotel and the appellant stayed with her there. The appellant has in the meantime been cared for by Mrs Omoakale. The sponsor has rented one room and this is occupied by Mrs Omoakale, her son who is 30 years old and the appellant. Mrs Omoakale’s husband was in the air force and is now retired. Because his pension is not sufficient for him to live in the city, he has returned to his village in Bende where he is building a house and is hoping that his wife and son would join him. Mrs Omoakale’s son is not working. A marriage has been arranged for him in Bende. The sponsor said that it was because of the appellant that Mrs Omoakale has delayed her return to the village to join her husband. The appellant feels uncomfortable sharing a room with a 30 year old man.
10. The sponsor said that she is financially responsible for the appellant and for her emotionally wellbeing. When her late brother’s gratuity and other payments were made to her, she put all the money towards the care of the appellant. At the time of her father’s death the appellant was in the army air force school. She is no longer at the school. She needs to be in secondary school. However, because Mrs Omoakale will soon be joining her husband in Bende, the sponsor is unable to register the appellant at a secondary school as there will be no one to look after her. She does not want to send the appellant to boarding school because the appellant would not be happy there. Furthermore there would be no one to visit her at the secondary school and no one to care for her during the school holidays.
11. The sponsor produced her British and Nigerian passports and they showed that she visited Nigeria from 7 to 19 March 2012 and 24 November to 2 November 2013. She also produced evidence of telephone calls from 26 November 2012 to 25 September 2013. The local number 02070976591 she explained was the number that she had to dial in order to use the calling card.
12. The sponsor said that she lives in a four bedroom house with her husband and three children; two sons and a daughter. Their daughter has a double room and will share it with the appellant.
13. She produced a letter from the Department for Work and Pensions dated 8 February 2013 which states that she receives £305 disability and living allowance every month. She also produced evidence that her husband works as a security officer and earns about £2,000 a month.
Findings
14. Ms Holmes conceded on the evidence that accommodation and maintenance requirements of the Immigration Rules have been met.
15. Ms Holmes submitted that the main concern of the ECO was the lack of documentary evidence showing that the sponsor and the appellant are related as claimed. The ECO also had doubts about whether there were compelling circumstances in this case. Mr Oke relied on his skeleton argument.
16. The ECO expressed concerns about the adoption court document dated 16 December 2010 which he said was of a kind easily generated and readily available in Nigeria. He further noted that the Chief Magistrate made no reference to the appellant’s origins and who she had lived with her whole life. The Entry Clearance Manager who reviewed the ECO’s decision said it was not possible to get certain documents authenticated if they have not come from the courts or authorities based in major cities in Nigeria. Mr Oke submitted that the onus was on the respondent to carry out a verification of the document if he had doubts about it. Ms Holmes said she was not in a position to say that the adoption document was false. It is just the circumstances surrounding the document that the ECO called into question.
17. I accept Mr Oke’s submission that the onus was on the ECO to verify the document once he had doubts about it. Despite what the Entry Clearance Manager said, the document was issued by a Magistrates’ Court in Ota, which is a major city in Nigeria. If the ECO had doubts about its authenticity, he should have carried out a verification of the document. It is not simply good enough to say that it is not possible to get certain documents authenticated if they have not come from the courts. In this case the document had come from a court which is based in a major city in Nigeria. Having failed to verify the document, I find that the ECO’s reasons for not accepting the document fall away.
18. I rely on paragraph 17 of Buama (inter-country adoption – competent court) [2012] UKUT 00146 (IAC) where the Upper Tribunal held:
“... the Immigration Rules do not appear to contemplate a refusal to accept the validity of the order of a competent court. Further, any challenge to the validity of the order had to be by expert evidence in my view. ...”
19. In that case the Upper Tribunal held that insofar as there was any burden on the appellant in this matter it had been discharged because of the letter from the High Court Registrar explaining that the adoption remained as stated in the previous order and the effect of the subsequent order was simply to correct it. In this case I find that the ECO was not challenging the validity of the order as stated by Ms Holmes but was merely concerned about the circumstances surrounding the order. The ECO has not provided any expert evidence to challenge the validity of the order. The ECO could have verified the document but did not. In the circumstances I find that there was a genuine court order for the adoption of the appellant by her aunt, Mrs Paul and her husband.
20. I also find that the adoption order is from Nigeria, a country that is on the list of countries whose adoption is recognised in the UK,
21. I find that there was adequate documentary evidence before me to support the claimed relationship between the appellant and her sponsor. The evidence is in the form of Letters of Administration obtained by the sponsor in respect of her late brother’s property. There were letters from the Nigerian Army to the sponsor which named her as the next of kin. I accept the sponsor’s evidence that when her brother joined the army he would have had to name who his next of kin was in case anything happened to him and he had named her as his next of kin. Although there was no expressed letter or document saying that he required the sponsor to take care of the appellant, I accept the sponsor’s evidence that she believed that as next of kin, she was required by her brother to take care of the appellant should anything happen to him. It is apparent from the evidence that the sponsor is now the only living relative of the appellant. The appellant is an orphan. The sponsor has been granted an order to adopt the appellant. The sponsor has proved that she has been financially responsible for the appellant. She is in regular telephone contact with the appellant and has visited the appellant in Nigeria. All this evidence goes to show that the appellant and the sponsor are related as claimed. I also accept the sponsor’s evidence that the adoption court required her late father to write a letter giving authority to her to adopt the appellant. This was because the appellant was in his care at the time of the adoption and the court needed to release the appellant into the sponsor’s care.
22. The ECO also refused the appellant’s application under was paragraph 297(i)(f). This requires the appellant to prove that there are serious and compelling family or other considerations which make exclusion undesirable and that suitable arrangements have been made for her care.
23. I found the sponsor credible and accept her evidence that she has arranged for the appellant to be cared for by Mrs Omoakale. The sponsor has rented one room which is occupied by Mrs Omoakale, her 30 year old son and the appellant. I bear in mind that the appellant is still a child. It is highly inappropriate for her to be sharing a room with a 30 year old man. She is an orphan and is being cared for by a lady who is not her relative. She has finished primary school and should be in secondary school but because of the care arrangements in place at the moment the sponsor is unable to make permanent arrangement for the appellant to go to secondary school. The appellant is not attending school at the moment. The appellant needs to grow up in a safe and secure family environment which I find will be provided to her by her sponsor. Her best interests are better served by coming to the UK to live with her aunt who is emotionally attached to her and, because of the family’s circumstances, is the only living relative she has.
24. I find that the appellant’s circumstances amount to compelling and compassionate circumstances which make her exclusion from the UK undesirable.
25. I allow the appellant’s appeal.

Signed Date

Upper Tribunal Judge Eshun