Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001290

First-tier Tribunal No: EA/51396/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 20 January 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

TCHEMI ALIU DJALO
(ANONYMITY ORDER NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: No attendance for the appellant
For the Respondent: Ms S Nwachuku, Senior Home Office Presenting Officer

Heard at Field House on 14 January 2025

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Guinea-Bissau born on 17th January 2005. On 5th May 2022 he applied for leave to enter pursuant to the EUSS on the basis that he is a family member of an EEA citizen by adoption in Guinea, a country within the Adoption Recognition of Overseas Adoptions Order 2013. He applied to join his adopted mother, Salimatu Balde, a citizen of Portugal with status under the EUSS in the UK granted on 5th February 2020. He was refused in a decision dated 9th September 2022. The appellant’s appeal against this decision was allowed by First-tier Tribunal Judge Dieu on the papers on 6th February 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Rintoul on 27th April 2024 and a panel of the Upper Tribunal found that the First-tier Tribunal had erred in law for the reasons set out in the decision appended as Annex A to this decision.
3. In the error of law decision directions were given for the remaking hearing. Within 28 days of the decision being sent to the sponsor she was to file and serve a short statement setting out the procedures that were undertaken to adopt the appellant and the respondent was to conduct any verification of the adoption certificate as she saw fit. No statement has been filed or served by the sponsor, but on 27th November 2024 the respondent did file a response to directions with an application to extend time to admit it. These submissions were admitted by Senior Upper Tribunal Legal Officer Ashley Goatham in a decision dated 28th November 2024. The respondent informs the Upper Tribunal that she has no capacity to conduct a verification check of the appellant’s adoption certificate from Guinea but instead provides submissions, which are addressed below.
4. The matter now comes before me pursuant to a transfer order to remake the appeal. There was no attendance by the sponsors or any representative instructed on behalf of the appellant. I found that it was fair and just to proceed with the hearing however as I was satisfied that both the appellant and sponsor had been informed of the date of the hearing (the sponsor both by post and email and the appellant by post only) on 21st October 2024. I concluded that in light of the failure to comply with directions and the failure to attend the hearing the appellant and sponsor had decided that they did not wish to participate in the appeal process. I have reviewed all of the documents submitted by both parties. Ms Nwachuku made submissions for the respondent, relying upon the original decision, the review and the response to directions document. I do not set out these submissions but refer to them in my decision set out below.
Conclusions – Remaking
5. The issue for me to determine is whether the appellant is a family member of an EEA citizen by way of his adoption. I must decide whether the Guinean French language adoption certification judgement and extract of perfect adoption documents with translations suffice to fulfil the definition of “relevant adoption decision” under Annex 1 of Appendix EU (Family Permit).
6. From the application form the appellant was born in Gabu in Guinea-Bissau, and it is clear he was living there when he obtained his passport in November 2021 from the face of that passport. At the time of his application, in May 2022, he stated he was living in Conakry in Guinea, and states on his application form that he is in contact with his “adoptive ante” every day by phone, lives in her home and she pays for his health care and education. He enters, on the application form, Ms Salimatu Balde and Mr Abdurahamane Djalo, who are citizens of Portugal and Guinea respectively, as his parents. From her bank statement it appears that Ms Balde lives in Peterborough, but presumably has a second home in the Kipe section of Conakry, as set out in the certified judgement of adoption relating to the appellant.
7. According to the certified judgment of the Appeal Court of Conakry the adoption took place on 31st December 2020. This document also states that appellant’s original parents were Mr Abdurahamane Djalo who rather confusingly appears to be his adoptive father on the application form. His original mother is named as Ms Cadidjatu Corca Balde: she clearly has the same surname as his adoptive mother but there is no clarification as to whether she is a relative or unrelated to the sponsor Ms Salimatu Balde. The adopted mother is given consistently with the application form as the sponsor, Ms Salimatu Balde, but the adopted father is named as Amadu Boi Balde. I have no information as to who this man is or where he lives as he does not feature in the application. The adoption is said to have taken place as the appellant’s original parents were living in “deep poverty” and the adoption would enable the appellant to live in better living conditions and receive a modern education. In the “Extract of Perfect Adoption” document it is said that Ms Salimatu Balde is a good person and one of means, such as she can ensure the appellant will blossom.
8. I find that the lack of clarity as to the identities of the adoptive father and biological father of the appellant, and as to the procedures that the sponsor undertook to obtain the adoption leads me to have concerns about the authenticity of the adoption documents. I also find that the fact that the sponsor has chosen not to provide a witness statement clarifying matters and not to submit herself to cross-examination with respect to this matter, which ought to be of supreme importance to her, to be troubling and leads me to give less weight to the unsupported and ultimately unclear evidence in the application form and adoption documents.
9. The respondent has argued in addition that the adoption papers are insufficient to show that a relevant adoption has taken place because there is nothing verifying that they are genuine from the appellant. I find that this is a particularly weighty consideration as the papers do not comply with what can be established from country of origin sources, as set out in the respondent’s response to directions document, as the proper process for adoption in Guinea. The procedure for adopting a child in Guinea, as set out on the website www.adoption.com, requires an affidavit of consent from the parent or parents, or a family representative if the parents are deceased or have abandoned the child, or an order of abandonment if the child is without known parents or family, which would be obtained by the police from the court; and further the child must be under the age of 15 years. In this case we have no affidavit or order provided with the papers, or explanation from the appellant or sponsor as why this did not form part of the documentation in this case. Further the adoption took place on 31st December 2020 when the appellant was 15 years and 11 months, and thus, according to the country of origin information, was too old to be adopted. In addition the information from the adoption website indicates that the sponsors/adoptive parents needed to be present in Guinea at the final step of the adoption and there is no evidence that this was the case.
10. As a result I conclude, when looking at the application and supporting documents in the round, as is required in accordance with Tanveer Ahmed [2002] UKIAT 439, that the appellant has not shown on the balance of probabilities he has been lawfully adopted by the sponsor Ms Salimatu Balde and has a relevant adoption decision, and thus he has not shown that he is a family member of an EEA national.
11. By way of a postscript I revisit what was said by the Upper Tribunal Panel in the error of law decision. In the context of applications concerning potentially vulnerable children (or other individuals), such as those based on adoption, the entry clearance officer’s representatives, the presenting officers unit, ought to give serious consideration to requesting that the First-tier Tribunal move any such appeal from a paper to an oral lists so that new evidence can be properly challenged and the appeal can include the evaluation of oral evidence from sponsors. I note that under Rule 25(1)(a) of The Tribunal Procedure Rules 2014 consideration without a hearing can only take place if both parties consent or do not object. As Ms Nwachuku pointed out in her submissions the respondent’s representative, the Pre-Appeal Review Unit, did put in a request for an oral hearing in the respondents’ review in this case at point 6. Sadly this request was not addressed, as it should have been, by the First-tier Tribunal in this instance.
12. First-tier Tribunal Judges must be guided by SSGA (Disposal without considering merits, R.25) [2023] UKUT 12 at paragraph 4 when considering whether or not an appeal should be disposed of without a hearing under Rule 25 of the 2014 Procedure Rules, and give reasons as to why this is a lawful approach under the various provisions in Rule 25. SSGA guides that if the First-tier Tribunal finds that, in accordance with Rule 25(1)(g), it is of the view that the appeal can be justly determined without a hearing then it will be necessary to explain why this is the case if there is a dispute over the credibility of any material fact. It is to be hoped that future appeals relating to vulnerable children and individuals, such as those involving adoption, will, through proper application of Rule 25, normally be determined with an oral hearing rather than be placed in paper lists.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. We set aside the decision of the First-tier Tribunal.
3. The appeal is remade by dismissing it under the Immigration Rules.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14th January 2025

Annex A: Error of law Decison

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Guinea-Bissau born on 17th January 2005. On 5th May 2022 he applied for leave to enter pursuant to the EUSS on the basis that he is a family member of an EEA citizen by adoption in Guinea, a country within the Adoption Recognition of Overseas Adoptions Order 2013. He applied to join his adopted mother, Salimatu Balde, a citizen of Portugal and his adopted father Abudurahamane Djalo, a citizen of Guinea. He was refused in a decision dated 9th September 2022. The appellant’s appeal against this decision was allowed by First-tier Tribunal Judge Dieu on the papers on 6th February 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Rintoul on 27th April 2024 on the basis that it was arguable that the First-tier judge had erred in law by accepting the lawfulness of the adoption without an original document. The second ground, raising a failure to require documentation from Guinea-Bissau was granted permission but the respondent was required to provide a detailed skeleton argument to be served five days prior to the hearing on this point. No skeleton was filed and Mr Parvar withdrew the second ground of appeal at the hearing.
3. The matter now comes before us to determine whether the First-tier Tribunal had erred in law for the reasons set out in the first ground, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside. The sponsors did not attend the hearing, but we were satisfied that the claimant and the sponsor had been properly served with the notice of hearing on 23rd July 2024 to the addresses that had been provided, and in the case of the sponsor an email, and so that it was just and fair to proceed in the absence of the sponsor or a representative for the claimant.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions from Mr Parvar it is argued, in short summary, for the Entry Clearance Officer, that the First-tier Tribunal erred in law as follows.
5. It is argued in the first ground that the First-tier Tribunal erred by making a material misdirection of law as the First-tier Tribunal found that the original Guinean French adoption certificate was genuine but there is a lack of reasoning going to how this conclusion was reached at paragraph 7 of the decision, and the original Guinean French language document had not been submitted with the original application and so independent verification had not taken place which would have safeguarded the best interests of the child. Mr Parvar accepted that the original basis for refusal was that the adoption document came from the Guinea-Bissau authorities, and thus from a country not within The Adoption (Recognition of Overseas Adoptions) Order 2013 (hence forth the Adoption Order 2013), and it was only at the point of the respondent’s review on 4th November 2022 that it was accepted for the entry clearance officer that the certificate came from Guinea and that the issue of the document only being a translation of the original was raised. The claimant had then filed a copy of the original Guinean French language document with the First-tier Tribunal on 15th November 2022 but no checks had been carried out. Mr Parvar said that this was because there was no opportunity for the entry clearance officer or representative to review evidence filed after the review. Mr Parvar said he understood that within the First-tier Tribunal procedure rules that there was no formal way for those representing the entry clearance officer to request that a paper case should be transferred to an oral hearing, although he accepted that this was sometimes done informally. He argued that the First-tier Tribunal ought not to have given so much weight to the document without supporting oral evidence, and that the finding that the adoption was genuine and the claimant the son of the sponsor was insufficiently reasoned in this context.
6. There was no Rule 24 notice or oral or written submissions for the claimant.
7. At the end of the hearing we reserved our decision. Mr Parvar argued that any remaking should take place in the Upper Tribunal as the issue is a narrow one.
Conclusions – Error of Law
8. The appeal was allowed because the First-tier Tribunal Judge was satisfied that he has been supplied with an original adoption certificate and translation of that document, and that on this basis he was satisfied that the claimant was therefore a family member of an EEA citizen in the context of it being accepted for the entry clearance officer that the adoption had taken place in a country listed in the Adoption Order 2013.
9. The original refusal of entry clearance was not on the basis that the entry clearance officer had found a translated adoption document insufficient but on the basis that adoption had not taken place in a country which was on the Adoption Order 2013 list, as it was said that it had taken place in Guinea-Bissau. The respondent’s review of 4th November 2022 accepted that the country of adoption is in fact Guinea, and that this country is on the Adoption Order 2013, but goes on to argue the refusal of entry clearance was still lawful as no original adoption document had been provided to the entry clearance officer, and instead just a translation accompanied the application, and so the entry clearance officer had not been able to independently verify the document and it should not been seen as reliable evidence of a genuine adoption. The claimant then filed what he says is the original Guinean French language adoption document with the First-tier Tribunal on 15th November 2022.
10. We find that those representing the entry clearance officer had a significant period of time between the filing of the document said to be the Guinean French language original of the adoption certificate, as the appeal was decided a year and four months after the filing of the document, in which checks could have been carried out to verify the document. However, we accept that the paper appeals procedures did not assist those representing the entry clearance officer in identifying this new evidence. We would urge in future that in the context of applications concerning potentially vulnerable children (or other individuals) such as those based on adoption that the entry clearance officer’s representatives consider applying to the First-tier Tribunal to have cases moved from paper to oral lists so that new evidence can be properly addressed and the appeals can include the evaluation of oral evidence from sponsors. We note that for consideration without a hearing both parties must consent or not object in accordance with Rule 25(1)(a) of The Tribunal Procedure Rules 2014.
11. We find that the First-tier Tribunal erred in law when finding that the claimant is an adopted child of the EEA sponsor based on the adoption document without any reasoning as to why the contended Guinean French language adoption certificate with translation sufficed to fulfil the definition of “relevant adoption decision” under Annex 1 of Appendix EU (Family Permit) given the stated position of the entry clearance officer’s representative in the review that independent verification was needed in order to safeguard the best interests of the child, and given the requirement to satisfy the eligibility requirements at the date of application under FP6 of Appendix EU (Family Permit).
12. We therefore set aside the decision of the First-tier Tribunal allowing the appeal and all of the findings. We find that this is a narrowly focused appeal and it should be remade in the Upper Tribunal.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. We set aside the decision of the First-tier Tribunal.
3. We adjourn the remaking of the decision.
Directions
1. The sponsor should, within 28 days of the date this decision is sent, file with the Upper Tribunal and served on the Home Office Presenting Officer’s Unit a short statement setting out the procedures that led up to the claimant’s adoption certificate being obtained and current arrangements for the care of the claimant, and then attend the remaking hearing at the Upper Tribunal, the date of which will be notified in due course, to give evidence in support of the statement. The email for service of the statement on the Upper Tribunal is and the email for service on the Presenting Officers’ Unit is
2. The entry clearance officer has 28 days from the date this decision is sent to conduct any verification of the adoption certificate as they see fit and to file this with the Upper Tribunal and serve it on the claimant. If longer is required then an application may be made for an extension of this time period.
3. Either party may file with the Upper Tribunal and serve on the other party any other evidence relevant to the remaking of this appeal but this must be done at the latest 10 days prior to the remaking hearing date, which will be notified in due course.
4. The remaking will be relisted for 2 hours at the first available date from 2 months’ from today’s date.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8th October 2024