JUDGMENT
AA (Somalia) (FC) (Appellant) v Entry Clearance
Officer (Addis Ababa) (Respondent)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
18 December 2013
Heard on 21 November 2013
Appellant Respondent
Manjit Gill QC James Eadie QC
S Chelvan Jonathan Hall
(Instructed by South West
Law)
(Instructed by Treasury
Solicitors)
LORD CARNWATH (WITH WHOM LADY HALE, LORD WILSON,
LORD REED AND LORD HUGHES AGREE)
1. Para 352D of the Immigration Rules provides for the grant of leave to enter
to the child of a parent who has been admitted to the UK as a refugee. The issue in
this case is whether the Para extends, or should be treated as extending, to a child
for whom a family member has taken parental responsibility under the Islamic
procedure known as “Kafala” (described in the agreed statement of issues as “a
process of legal guardianship akin to adoption”).
2. The facts are fully set out in the judgment of Davis LJ in the Court of
Appeal. The following is a sufficient summary for present purposes.
i) AA was born in Somalia on 21 August 1994. Her family was “torn
apart” by events in Somalia. Her father was killed in the mid 1990s.
ii) An elder sister, Ms A, married Mohamed on 10 January 2001. In
2002 she came home to find that he, her daughter Fadima, and her stepdaughter Amaani had been abducted. She eventually left Somalia and came
to the United Kingdom in October 2002. She was later granted indefinite
leave to remain, on compassionate grounds. Her husband had in the
meantime escaped from his abductors and had gone to live elsewhere in
Mogadishu.
iii) AA became separated from her mother and other siblings during the
fighting. Around the end of 2002 she went to live with Mohamed, Fadima
and Amaani and was accepted as a family member.
iv) In October 2007 Mohamed left Somalia, and came to the United
Kingdom in November 2007, where he was reunited with Ms A. He was
granted asylum on 21 July 2008. The three girls – AA, Fadima and Amaani
– were left with a maternal aunt in Mogadishu.
v) At the end of 2008 the three girls went to live with neighbours.
Contact with Ms A and Mohamed was renewed in March 2009.
Applications for entry into the UK were made for all three girls. Entry
clearance was granted to Fadima and Amaani, who came to the United
Kingdom on 22 January 2010. (I shall refer to them for convenience, and
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without legal implications, as AA’s “adoptive siblings.”) It was refused for
AA, who remained in Addis Ababa pending her appeal.
vi) Her appeal was heard in the First-tier Tribunal on 3 September 2010.
Expert evidence, accepted by the tribunal, was to the effect that, although
adoption as such does not exist under Islamic law, under the legal institution
known as Kafala, a person may become a “protégé and part of the
household of an adult”; and that this “only falls short of a full blown
adoption in that such adoptee does not enjoy a right of inheritance under
Islamic law” (FTT para 21).
vii) The tribunal allowed the appeal both under para 352D and article 8
of the European Convention on Human Rights, the former on the basis that
AA
“falls into a specific category of persons who have been taken into
guardianship or the care of others under a transfer of responsibility
such that Islamic law would recognise the legal status of the
appellant in relation to [Ms A and Mohamed] as their child for all
purposes and in the circumstances in which the appellant was an
orphan.” (para 31)
viii) On 23 May 2011, the Upper Tribunal (Judge Grubb) allowed the
Secretary of State’s appeal in respect of para 352D, but confirmed the
tribunal’s decision under article 8. On 14 May 2012 AA was given entry
clearance and she arrived in this country on 4 June 2012.
3. The Court of Appeal accepted that notwithstanding the grant of entry
clearance under article 8, the appeal was not academic.
“The answer provided is that if entry is permitted under the
Immigration Rules the entitlement of AA to remain thereafter will in
effect align with the sponsor’s entitlement, whereby indefinite leave
to remain can be expected to be granted after the expiry of the fiveyear period: whereas grant of leave to remain under article 8 is
discretionary and not necessarily so linked to the sponsor’s position.”
4. In this court, Mr Gill has provided further details of the differences, legal
and practical, between clearance under the rules and discretionary leave to remain
(DLR) under article 8. For example, under policies current at the time a person
admitted under article 8 would take longer to reach the point of claiming indefinite
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leave to remain (ILR) than a person admitted under the rules. Mr Gill submits that
DLR status is not easily understood by employers, educational institutions and
others with whom the holder will need to have dealings in ordinary life. He
pointed to other practical disadvantages, such as in relation to travel documents.
Some of his points were contentious. However, it was not in dispute as I
understand it that AA’s status, following admission under article 8, might be
materially less advantageous than that of someone (such as her adoptive siblings)
admitted under Para 352D.
The Rules
5. The critical provision is Para 352D, in Part 11 of the Immigration Rules
which relates to asylum:
“352D. The requirements to be met by a person seeking leave to
enter or remain in the United Kingdom in order to join or remain
with the parent who is currently a refugee granted status as such
under the immigration rules in the United Kingdom are that the
applicant:
(i) is the child of a parent who is currently a refugee granted status as
such under the immigration rules in the United Kingdom; and
(ii) is under the age of 18, and
(iii) is not leading an independent life, is unmarried and is not a civil
partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the
time that the person granted asylum left the country of his habitual
residence in order to seek asylum;…”
6. The principal issue which arises in AA’s case is whether her relationship
with her brother-in-law Mohamed can be regarded as that of “the child of a parent”
(under (i)). For that it is necessary to turn to the interpretation provision, Para 6,
which defines “parent” as follows:
“‘a parent’ includes:
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(a) the stepfather of a child whose father is dead and the reference to
stepfather includes a relationship arising through civil partnership;
(b) the stepmother of a child whose mother is dead and the reference
to stepmother includes a relationship arising through civil
partnership and;
(c) the father as well as the mother of an illegitimate child where he
is proved to be the father;
(d) an adoptive parent, where a child was adopted in accordance with
a decision taken by the competent administrative authority or court
in a country whose adoption orders are recognised by the United
Kingdom or where a child is the subject of a de facto adoption in
accordance with the requirements of Para 309A of these Rules
(except that an adopted child or a child who is the subject of a de
facto adoption may not make an application for leave to enter or
remain in order to accompany, join or remain with an adoptive
parent under Paras 297-303);
(e) in the case of a child born in the United Kingdom who is not a
British citizen, a person to whom there has been a genuine transfer of
parental responsibility on the ground of the original parent(s)’
inability to care for the child.”
7. Thus an “adoptive parent” under a “de facto adoption” is included, but
subject to the requirements of Para 309A. This is underlined in turn by the
definition of “adoption”:
“‘adoption’ unless the contrary intention appears, includes a de facto
adoption in accordance with the requirements of Para 309A of these
Rules, and ‘adopted’ and ‘adoptive parent’ should be construed
accordingly.”
8. Para 309A is in Part 8 of the Immigration Rules relating to Family
Members (in the particular group relating to children). Its present form dates from
2003. It provides so far as relevant:
“309A For the purposes of adoption under Paras 310-316C a de facto
adoption shall be regarded as having taken place if:
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(a) at the time immediately preceding the making of the application
for entry clearance under these Rules the adoptive parent or parents
have been living abroad (in applications involving two parents both
must have lived abroad together) for at least a period of time equal to
the first period mentioned in sub-Para (b)(i) and must have cared for
the child for at least a period of time equal to the second period
material in that sub-Para; and
(b) during their time abroad, the adoptive parent or parents have:
(i) lived together for a minimum period of 18 months, of
which the 12 months immediately preceding the application
for entry clearance must have been spent living together with
the child; and
(ii) have assumed the role of the child’s parents, since the
beginning of the 18-month period, so that there has been a
genuine transfer of parental responsibility.”
Paras 310-316C (referred to in the opening words) form a group of Paras under the
general heading “Adopted Children”, dealing with the general requirements for
entry as an adopted child, unconnected with circumstances which might lead to an
asylum claim.
9. We were given little information about the thinking behind these rules,
either in the present form, or as introduced in 2000. Before 2000 a more flexible
approach had been applied. In R v Immigration Appeal Tribunal Ex p Tohur Ali
[1988] 2 FLR 523, the Court of Appeal considered rule 50 as it then stood, under
which “parent” was defined as including –
“an adoptive parent, where there has been a genuine transfer of
parental responsibility on the ground of the original parents’ inability
to care for the child…”
The court, by a majority, held that this expression was not confined to adoption
under a “legally recognizable adoptive process”.
10. Para 352D was originally introduced in October 2000, at the same time as
the Human Rights Act 1998 came into effect. At that time the relevant part of the
definition of “parent” in Para 6 included an adoptive parent –
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“but only where a child was adopted in accordance with a decision
taken by a competent administrative authority or court in a country
whose adoption orders are recognised by the United Kingdom
(except where an application for leave to enter or remain is made
under Paras 310-316)”.
HC 538 of 31 March 2003 altered the definition of “parent” to its present form and
introduced Para 309A. We were not given any explanation for these changes, but
neither side relies on them as throwing any light on the issue we have to decide.
11. Para 352D was considered by the Court of Appeal in MK (Somalia) v Entry
Clearance Officer [2009] Imm AR 386. It had been argued that, notwithstanding
the introduction of the new rule, reliance could be placed on a free-standing policy,
outside the rules, expressed in a Ministerial Statement dated 17 March 1995, under
which following grant of asylum status to a parent “reunion of the immediate
family” would be permitted as a concession outside the rules. The court held that
this policy had been supplanted by the rules in their amended form.
Discussion
12. As I understand them, Mr Gill’s submissions, carefully and fully developed
in his printed case and in oral argument, have three main strands:
i) Construction To make sense of Para 352D in the context of the
family of a refugee, the definitions must be interpreted broadly so as to
include a child in the position of AA.
ii) International obligations Effect must be given to the UK’s
international obligations relating to the treatment of children, including a
broad approach to the recognition of adoptive children.
iii) Discrimination Children who are members of a family unit should
not be put at a disadvantage because they come from countries which have
no formal system of adoption.
Construction
13. I would accept that the requirements of Para 309A (b)(i) and (ii) seem illadapted to the purposes of Para 352D. They assume a degree of stability in the
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home country which is likely to be wholly inappropriate to those like AA seeking
refuge from war-torn Somalia, and indeed for most asylum-seekers. Mr Eadie did
not argue otherwise, although he suggested some theoretical scenarios in which the
requirements might be achievable. As appears from its introduction the definition
seems to have been designed principally to deal with ordinary applications to enter
by adopted children, covered by the immediately following Paras. It finds its way
into Para 352D by a somewhat circuitous route, which suggests that careful
thought may not have been given to its practical implications. If there were any
way in which we could legitimately rewrite the rule to produce a fairer result, I
could see a persuasive case for doing so. Unfortunately I do not think this possible.
14. The correct approach to construction of the rules is well settled, as
explained by Lord Brown in Mahad v Entry Clearance Officer [2010] 1 WLR 48:
“The Rules are not to be construed with all the strictness applicable
to the construction of a statute or a statutory instrument but, instead,
sensibly according to the natural and ordinary meaning of the words
used, recognising that they are statements of the Secretary of State’s
administrative policy… the court’s task is to discover from the words
used in the Rules what the Secretary of State must be taken to have
intended… that intention is to be discerned objectively from the
language used, not divined by reference to supposed policy
considerations.” (para 10)
15. Read in accordance with those principles, it is clear to my mind that Para
352D does not cover AA’s case, and cannot be rewritten in order to do so.
Whether or not Kafala could be treated as a form of “adoption” for other purposes,
the definition of “adoptive parent” in Para 6 is more restricted. It extends to “de
facto adoption” only within the limitations laid down by Para 309A, which do not
cover this case. Although in terms directed to the succeeding provisions, the
definition is also incorporated specifically into the general definition of “adoptive
parent” and hence into that of “parent” in Para 6.
16. Mr Gill sought to make something, first, of the fact that the definition of
“parent” is expressed as inclusive, and, secondly, of the words “unless the contrary
intention appears” in the definition of “adoption”. Neither point assists. The word
“includes” in the definition of parent is readily explicable, having regard to the fact
that the particular Paras do not include a biological parent. They are rather
designed to extend the natural meaning of the term. The specific treatment of
adoption in Para (d) excludes any intention to cover other forms of de facto
adoption outside the definition. Similarly, the reference to “contrary intention” in
the definition of adoption, in context, cannot be read as designed to extend the
scope of the definition, but rather to indicate that there may be contexts in which
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the extension to de facto adoption does not apply. On this aspect, I cannot usefully
add to the reasoning of Davis LJ said in the Court of Appeal. As he said, the
wording of the rules is “plain and unambiguous”.
International obligations
17. Mr Gill has referred us to a number of international instruments which call
for a broad approach to the protection of the interests of children. As he rightly
says, the “best interests” principle is now, in appropriate areas of law, recognised
both by domestic and international law (see ZH(Tanzania) v Secretary of State for
the Home Department [2011] 2 AC 166).
18. Without in any way detracting from the importance of the principles
affirmed in those instruments, I do not find it necessary to review them in any
detail. Taking them at their highest, Mr Gill is unable to point to any specific
obligation covering the position of someone in the position of AA in the present
case.
19. In response to similar submissions in MK (Somalia) (above), Maurice Kay
LJ concluded:
“Do these documents establish or evidence an obligation of
customary international law that is positively protective of de facto
adopted children? In my judgment they do not. At best they illustrate
an increasing awareness of the need for a flexible approach to the
concept of family but they do not address in terms the question of de
facto adoption which, because of its very lack of formality, presents
a receiving state with obvious problems of verification. There is no
material referred to by Mr Pleming which demonstrates a clear
international consensus about the particular problem of de facto
adoption — quite the contrary. Whilst there is a perceptible concern
that the concept of family, in the context of family reunion, should
not be resistant to social and cultural change, I do not consider that
there is a precise, identifiable obligation of customary international
law that is prescriptive of the national approach to de facto
adoption.” (para 12)
I respectfully agree.
20. Mr Gill also referred us to Secretary of State for Home Department v Abdi
[1996] Imm AR 148. The Court of Appeal noted a Home Office letter dated 17
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May 1990 relating to “Somali Family Reunion Applications”, which included the
following:
“8.1.1 If the United Kingdom sponsor has been recognised as a
refugee here under the terms of the 1951 United Nations Convention
relating to the Status of Refugees then, like most countries, we
follow the policy on family reunion agreed by the Conference which
adopted the Convention. We will agree to the admission of the
spouse and minor children of the refugee. However given the nature
of the Somali family we are prepared to be flexible and if a refugee
is able to show that a person not covered by the policy was a
dependent member of the refugee’s immediate family unit before the
refugee came to the United Kingdom, then we would be prepared to
consider exceptionally extending the refugee family reunion
provision to cover that person.”
Although this is a clear recognition of the importance attached internationally to
family reunion, it is equally clear that the more flexible approach proposed for
Somali applicants is not treated as a matter of legal obligation, but as a matter for
“exceptional” consideration.
21. In that respect Mr Gill faces a further difficulty. It is accepted by the
Secretary of State that the rules on this issue are not exhaustive of this country’s
obligations under international law. Hence the decision to allow AA entry under
article 8 of the European Convention on Human Rights. Subject to the issue of
discrimination, to which I will come, Mr Gill is unable to point to any international
obligation which goes further in practical terms than the protection which has been
afforded to AA under human rights law.
Discrimination
22. Mr Gill relies on what he calls the “principle of non-discrimination” as
recognised in a number of international instruments, for example:
i) UN Convention on the Rights of the Child article 2, under which
states parties are required to ensure the rights in the Convention “to each
child within their jurisdiction without discrimination of any kind…”
ii) The Refugee Convention, the preamble of which reaffirms the
principle that “human beings shall enjoy fundamental rights and freedoms
without discrimination…”
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iii) The European Convention on Human Rights article 14, under which
the rights set out in the Convention are to be secured “without
discrimination” on any of the grounds there set out.
23. Mr Gill submits that the discrimination in this case arises on a number of
grounds under article 14, including race, religion and nationality, and also (as he
puts it in his printed case) –
“other status (the statuses of being a child of a refugee and/or of
being a ‘de facto adopted’ child, ie a child who is not a biological
child nor a child adopted in accordance with procedures recognised
by the UK.)”
24. I accept that it appears harsh, to put it no higher, that under the rules AA is
treated less favourably than her adoptive siblings, largely because of the tragic
circumstances in which parental responsibility passed to her brother-in-law, taken
with the lack of any functioning legal system allowing for formal adoption in the
country from which she comes. It is however unnecessary to decide in the context
of the present appeal whether or not such treatment could give rise to a claim for
unlawful discrimination under article 14 or otherwise. This is because any rights
which AA has in that respect would apply equally to her position in this country,
regardless of the basis of her admission. Mr Gill did not suggest otherwise. In
exercising any discretion in relation to the grant or extension of DLR, the
Secretary of State is obliged to act in conformity with the Convention, including
article 14. It is not necessary to reinterpret the rules to achieve that result.
25. I would add one comment. As I have made clear, I see great force in Mr
Gill’s criticisms of the use of the Para 309A definition in the context of a rule
which is concerned with the treatment of refugees and their dependants. Mr
Eadie’s only answer, as I understood him, was that clear definitions were needed
to establish “bright lines”. That answer loses most of its force if the bright lines are
drawn so restrictively that they have in practice to be supplemented by the much
fuzzier lines drawn by article 8. In the interests of both applicants and those
administering the system, it seems much preferable that the rules should be
amended to bring them into line with the practice actually operated by the
Secretary of State, including that dictated by her obligations under international
law.
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Conclusion
26. For these reasons, which substantially follow those of the Court of Appeal, I
would dismiss this appeal.
