MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department [2008] EWCA Civ 38

[2008] EWCA Civ 38Case No C5/2007/1290
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(TRIBUNAL NUMBER: IM/24019/2005)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2008
Before
LORD JUSTICE WARDLORD JUSTICE KEENELORD JUSTICE WILSON
Between
MN (INDIA)AppellantENTRY CLEARANCE OFFICER (NEW DELHI)RespondentSECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Mr Rambert de Mello and Mr Tony Muman (instructed by J M Wilson, Solicitors, Birmingham) appeared for Appellant.Mr Robert Palmer (instructed by Treasury Solicitors) appeared for Respondent and the Interested Party.Hearing Hearing date: 22 January 2008
Judgment
[1]The appellant is a girl who was born on 10 May 1994 and so is now aged 13. She is a citizen of India and has always resided there. She wishes to come to live in the U.K. Specifically she wishes to come to live in the home in Coventry of Mr and Mrs D, who are of Indian ethnicity but are settled in England. Mr D is a British citizen and Mrs D is married to him. Mr and Mrs D have adopted M in India in circumstances which make the adoption valid under Indian law. A major problem, but not according to the appellant an insuperable problem, has been that the adoption is not recognised as valid in England and Wales. The Entry Clearance Officer in Delhi (“the ECO”) refused to give entry clearance to the appellant; and her appeal to an immigration judge against his refusal was dismissed. Thereupon she applied to the Asylum and Immigration Tribunal for reconsideration of the appeal. She secured an order for reconsideration but in the event the tribunal affirmed the immigration judge’s determination. The tribunal could reverse the determination of the immigration judge only if she had made an error of law; and the tribunal discerned no such error. Now the appellant appeals to this court, of course on the necessary basis that the tribunal perpetrated an error of law. If the immigration judge perpetrated an error of law, the tribunal perpetrated an error of law in not discerning it. Thus the focus of this appeal is upon the determination of the immigration judge.[2]Adopting a practice which with respect I would not commend, Mr de Mello and Mr Muman on behalf of the appellant drafted a document which combined their grounds of appeal with their skeleton argument. It ran to 85 paragraphs. In it, as they would be the first to accept, they adopted a scattergun approach. It contained a host of disparate points. Nevertheless they secured a compendious grant of permission to appeal from the single judge on paper. Happily, however, Mr de Mello invests his oral submission to us not only with his customary charm but with a realism properly reactive to the exposure of some of his written contentions as, in truth, unarguable. As I will explain, there are four different avenues under the Immigration Rules (HC395) [“the Rules”], down which a child abroad who is alleged either to have been adopted abroad, whether de iure or de facto, or to be intended to be adopted in the U.K. can proceed in order to enter the U.K. Ultimately Mr de Mello concedes that none of those four avenues is open to the appellant. His argument on the appeal is now reduced to one, namely that, irrespective of the Rules, it was an infringement of the appellant’s rights under Article 8 of the European Convention on Human Rights 1950 for the ECO to refuse to grant entry clearance to her. Her argument under Article 8 was indeed put to the immigration judge; and in that regard it can be seen that she was invoking the ground of appeal set out in s.84(1)(c) of the Nationality, Immigration and Asylum Act 2002. In the event the immigration judge rejected the argument and on reconsideration the tribunal concluded that, in rejecting it, she had made no error of law.[3]Mr D is aged 53. In 1975 he came from India to settle in the U.K. He has bought his home in Coventry on mortgage and works as a technical assistant in an engineering company. Prior to his marriage to Mrs D, he was married to another woman; and they had three children. He and his first wife separated in 2000 and were divorced in April 2003.[4]Over the years, although settled in England, Mr D has made numerous visits to India, where members of his family have remained living. Working as a servant for members of his family was the mother of the appellant. In that way Mr D met the appellant. In due course Mr D decided that he wished to adopt her. As is stated in an Adoption Deed to which I will refer, “During his visit to India when the Adoptive Father had been living an isolated life, abandoned by the wife and children, [he] was desirous of adopting a daughter and with this object he approached the Natural Mother … who agreed to give her daughter … in adoption to the said Adoptive Father.” On one of his visits to India in 2001 Mr D met Mrs D, who had at all material times been resident there; and insofar as at that time, albeit on an informal basis, Mr D had already begun to assume responsibilities towards N, Mrs D helped him to discharge them, in particular at times when he was back in England.[5]In June 2002 the appellant’s father, who had been married to her mother, died; and by then her mother was in poor health. At around that time Mr D assumed responsibility for payment of the appellant’s school fees, apparently as a weekly boarder, and of medical expenses referable to her mother.[6]On 2 September 2002 there was a formal ceremony in India in which the appellant’s mother agreed to her adoption by Mr D. Her mother symbolically placed her in Mr D’s lap in the presence of witnesses. Mrs D may well have been at the ceremony but at that time, perhaps because she was not then married to Mr D, there was no suggestion that she was joining with Mr D in adopting the appellant. In May 2003, soon after his divorce from his first wife, Mr D married Mrs D. Shortly beforehand Mrs D had entered the U.K. as his fiancée. Although, since her marriage to Mr D, Mrs D has been based in England, she has returned to India on several occasions in order to care for the appellant. Mr D has also continued to travel to India, albeit for shorter periods of time, in order to do so.[7]On 31 July 2003 the Adoption Deed was executed in India. It purported to confirm Mr D’s adoption of the appellant and recited that on 2 September 2002, before a gathering of friends and relations, he had taken her as his adoptive daughter. There is no doubt that Mrs D was a party to the deed and assented to it. On close analysis, however, it is not clear whether, by the deed, Mrs D was purporting jointly to adopt the appellant with Mr D. It seems to have been assumed in these proceedings, in accordance with the submissions on behalf of the appellant, that Mrs D was, with Mr D, a joint adopter of her. In my view we should proceed on that assumption; for nothing turns on whether the adoption recognised in India was by Mr D alone or by Mr and Mrs D jointly.[8]The appellant’s mother was also a party to the deed dated 31 July 2003 and applied her fingerprint to it.[9]On the following day, namely 1 August 2003, the deed was duly registered in the District Court, Ludhiana, Punjab, being the court local to the home of Mr and Mrs D in India.[10]It is common ground in these proceedings that, as was later confirmed in an Opinion of an advocate in Ludhiana, the deed dated 31 July 2003, as registered in the local court, fulfils all the legal requirements set out in The Hindu Adoptions and Maintenance Act 1956, with the result that, according to Indian law, the appellant, at least with effect from 1 August 2003, was no longer the child of her biological mother but was the adopted child of Mr and Mrs D.[11]In January 2004 Mr D applied, as the appellant’s sponsor, for her to be given entry clearance to the U.K. as an adopted child. In March 2004 the ECO refused the application, whereupon a notice of appeal was promptly filed. Prior to the hearing of the appeal before the immigration judge, which took place on 5 December 2005, another ECO had reviewed his colleague’s decision but had decided to leave it undisturbed.[12]Meanwhile, on 4 April 2004, the appellant’s biological mother had died. Furthermore, in September 2005, there had been proceedings before the Guardian Judge in Ludhiana. The proceedings had resulted in an order dated 19 September 2005, which the immigration judge was later to misdescribe as an adoption order. It was, rather, an order appointing Mrs D to be the legal guardian of the appellant. It is unclear but irrelevant why, on the assumption that she was already a joint adopter of the appellant, it was necessary for Mrs D to be invested with the status of her legal guardian. Mr de Mello places some emphasis on statements made in the order dated 19 September 2005. On close inspection, however, it appears that almost all of them represent a recital of allegations made by Mrs D in support of her application rather than express findings of the Guardian Judge. He did, however, expressly find that Mr and Mrs D could look after and maintain the appellant in all respects and that, in the absence of Mr D in England, it would serve her general happiness and her education and maintenance needs for Mrs D to be appointed her guardian.[13]It is necessary to an analysis of the argument under Article 8 to notice the four different avenues for entry to the U.K. provided by the Rules in respect of a child adopted or intended to be adopted.[14]The starting point is to survey paragraph 310 of the Rules, which provides as follows:
“310. The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled … in the United Kingdom are that he: (i) is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances; (a) both parents are present and settled 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) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and (v) … (vi) (a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country or in the country of origin in which he is resident, being a country whose adoption orders are recognised by the United Kingdom; or (b) is the subject of a de facto adoption; and (vii) was adopted at a time when: (a) …; or (b) either or both adoptive parents were settled in the United Kingdom; and (viii) has the same rights and obligations as any other child of the adoptive parent’s or parents’ family; and (ix) was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and (x) has lost or broken his ties with his family of origin; and (xi) was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and (xii) holds a valid United Kingdom entry clearance for entry in this capacity.”
It will be seen that, apart from the requirement of entry clearance itself, there are 11 requirements under this paragraph. All are important; and to some of them I will need to return. But at this stage it is convenient to focus upon the requirement at (vi) (a); and to describe the first of the four avenues as one which requires that the child should have been adopted in accordance with a decision taken by the competent authority or court in the foreign country, “being a country whose adoption orders are recognised by the United Kingdom”. It is these last words which preclude the appellant from proceeding down this first avenue. The countries whose adoption orders are recognised by the United Kingdom for this purpose are (apart from China) those designated in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973 (S.I. 1973/19), which continues to have effect as if made under s.87 Adoption and Children Act 2002. India has not been designated as such a country under the order. (i) is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances; (a) both parents are present and settled 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) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and (v) … (vi) (a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country or in the country of origin in which he is resident, being a country whose adoption orders are recognised by the United Kingdom; or (b) is the subject of a de facto adoption; and (vii) was adopted at a time when: (a) …; or (b) either or both adoptive parents were settled in the United Kingdom; and (viii) has the same rights and obligations as any other child of the adoptive parent’s or parents’ family; and (ix) was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and (x) has lost or broken his ties with his family of origin; and (xi) was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and (xii) holds a valid United Kingdom entry clearance for entry in this capacity.”[15]The second avenue may be described as that provided by paragraph 310(vi)(b) of the Rules. The reference there to “a de facto adoption” requires consideration of paragraph 309A, which provides as follows:
“309A. For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if: (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-paragraph (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-paragraph; 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.”
It can readily be seen why the appellant does not qualify as the subject of a de facto adoption. For Mr and Mrs D cannot establish that they lived together in India for 18 months prior to January 2004 and that they lived there together with, and cared for, the appellant for the 12 months immediately preceding January 2004. (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.”[16]The third avenue relates to the provision in the Rules for a child to enter the United Kingdom for the purpose of being adopted here. At first blush one might consider that this would be a promising avenue for the appellant. The provision is paragraph 316A, the terms of which are as follows:
“316A. The requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted (which, for the avoidance of doubt, does not include a de facto adoption) in the United Kingdom are that he: (i) is seeking limited leave to enter to accompany or join a person or persons who wish to adopt him in the United Kingdom (the “prospective parent(s)”), in one of the following circumstances: (a) both prospective parents are present and settled in the United Kingdom; or …; 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) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and (v) will have the same rights and obligations as any other child of the marriage or civil partnership; and (vi) is being adopted due to the inability of the original parent(s) or current carer(s) (or those looking after him immediately prior to him being physically transferred to his prospective parent or parents) to care for him, and there has been a genuine transfer of parental responsibility to the prospective parent or parents; and (vii) has lost or broken or intends to lose or break his ties with his family of origin; and (viii) will be adopted in the United Kingdom by his prospective parent or parents in accordance with the law relating to adoption in the United Kingdom, but the proposed adoption is not one of convenience arranged to facilitate his admission to the United Kingdom.” (i) is seeking limited leave to enter to accompany or join a person or persons who wish to adopt him in the United Kingdom (the “prospective parent(s)”), in one of the following circumstances: (a) both prospective parents are present and settled in the United Kingdom; or …; 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) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and (v) will have the same rights and obligations as any other child of the marriage or civil partnership; and (vi) is being adopted due to the inability of the original parent(s) or current carer(s) (or those looking after him immediately prior to him being physically transferred to his prospective parent or parents) to care for him, and there has been a genuine transfer of parental responsibility to the prospective parent or parents; and (vii) has lost or broken or intends to lose or break his ties with his family of origin; and (viii) will be adopted in the United Kingdom by his prospective parent or parents in accordance with the law relating to adoption in the United Kingdom, but the proposed adoption is not one of convenience arranged to facilitate his admission to the United Kingdom.”
[17]Again, without intending to understate the importance of the first seven requirements of paragraph 316A, I focus on the eighth, namely that the child will be adopted in the U.K. by his prospective parents “in accordance with the law relating to adoption in the United Kingdom”. I put to one side the curious feature that, until a court has made an adoption order, it is hard to conclude categorically that a child “will be” adopted and I move to consider the law relating to adoption in the U.K., indeed for present purposes in England and Wales, with which the intended adoption must be in accordance. In this regard the relevant provisions are now s.83 of the Adoption and Children Act 2002 and the regulations made under subsections (4) and (5) thereof, namely Part 2 of The Adoptions with a Foreign Element Regulations 2005 (SI 2005/392) [“the Regulations of 2005”]. In this regard I should defend myself against technical criticism: for, by virtue of s.85(5) of the Nationality, Immigration and Asylum Act 2002, a tribunal which hears an appeal against refusal of entry clearance may consider only the circumstances appertaining at the time of the decision to refuse. In March 2004, albeit that they were in substantially similar terms, the relevant provisions were s.56A of the Adoption Act 1976, as substituted, and the Adoption (Bringing Children into the United Kingdom) Regulations 2003 (S.I. 2003/1173). But the differences between the former and the present provisions are immaterial to the argument; and it is convenient to refer to the latter. There is no need for me to set them out. Their effect is that if Mr and Mrs D, being British residents, wish to bring the appellant, being habitually resident abroad, into the U.K. for the purpose of adopting her (other than under the Hague Convention, as to which see paragraph 18 below), they are required, on pain of otherwise committing a criminal offence, to apply in writing to their local authority for an assessment of their suitability to adopt her. Indeed the obligations are not just personal to them but are required by s.83(5) of the Adoption and Children Act 2002 and Regulation 4 of the Regulations of 2005 “to be met in respect of” the appellant. Regulation 4 requires a series of steps to be taken following the application for assessment of suitability, including of course that the assessment should prove positive, such to be certified by the Secretary of State. Close to the heart of this appeal is the fact that Mr and Mrs D have not applied to Coventry City Council for an assessment of their suitability to adopt the appellant. They say that they have no interest in securing an adoption order in England and that the lengthy timescale referable to such a process is inapt to the needs of the appellant to come swiftly to live with them in Coventry. Although I must revert to these points, it is already clear why, as things stand, the appellant cannot proceed down this avenue for entry to the U.K.[18]The fourth avenue is created by the provisions which reflect the U.K.’s ratification in June 2003 of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption dated 29 May 1993. These provisions are contained in the Adoption (Intercountry Aspects) Act 1999 and, now, in Part 3 of the Regulations of 2005. Some of the terms of the Convention, set out in Schedule 1 to the Act of 1999, are of indirect relevance to the appeal. Its first object, declared in Article 1, is “to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child”. The Convention applies where a child habitually resident in State A has been, or is to be, moved to State B either following his adoption in State A by persons habitually resident in State B or for the purpose of effecting their adoption of him, following the move, in State B (or, but surely less often, back in State A). Other articles of the Convention create a system for cooperation between the two states and, in particular, for elaborate enquiries to be made – and for the information thus collected to be exchanged between the two states – first in State B as to the suitability of the proposed adopters and then in State A as to the suitability of the child for adoption and the collection of all necessary consents. The Convention envisages that some adoptions will be made pursuant to it in State A prior to the child’s move to State B and will then be recognised in State B. Were State B to be, for example, the U.K., the child would in that event at once become a British citizen and would be entitled to enter the U.K. without the need for recourse to the Rules: s.1(5) and (5A) of the British Nationality Act 1981. The Convention also recognises, however, no doubt because of the generally perceived need for a child to live with proposed adopters prior to its being demonstrably appropriate to permit them to adopt him, that some children pursuant to the procedure will, following the exchange of information between the two states, move to State B in order that they may live with the proposed adopters prior to adoption there. Paragraph 316D of the Rules provides for such a child to be granted limited leave to enter the U.K. with a view to settlement as a child for adoption in the U.K. under the Convention. It is interesting to note that, just as the U.K. ratified the Convention and brought it into force in June 2003, India did likewise in October 2003. The adoption of the appellant in India, however, was effected on 31 July and/or 1 August 2003; it did not purport to be made, and could not have been made, under the Convention. Equally Mr and Mrs D have shown no inclination since October 2003 to procure an adoption under the Convention, even were it possible to do so. Both counsel tell us, however, that, under Indian law, there might now be no facility for a Convention adoption in that an adoption valid under that law already exists.[19]Although she swiftly and correctly came to the conclusion that, in that adoption orders made in India were not recognised in the United Kingdom and that there was no de facto adoption of the appellant, she could not secure leave to enter under paragraph 310 of the Rules, the immigration judge nevertheless considered whether the appellant satisfied the requirements of the paragraph other than 310(vi); and Mr de Mello relies upon her positive findings in that regard. Thus for the purpose of (ix), the judge found that, although her mother was still alive on the date when the adoption deed was executed, the appellant was adopted due to the inability of her original parents to care for her and that there had been a genuine transfer of parental responsibility to Mr and Mrs D. Equally, for the purpose of (x), she found that the appellant had lost or broken her ties with her family of origin. Furthermore, for the purpose of (xi), she found that the adoption was not one of convenience arranged to facilitate the appellant’s admission to the U.K. Indeed the judge added, generally, that she was satisfied that Mr and Mrs D had gone to great lengths to ensure the appellant’s happiness and well-being and that Mrs D had spent a great deal of time in India in order to care for her.[20]In her final paragraph, numbered [33], the immigration judge turned to the appellant’s argument that refusal of entry clearance infringed her rights under Article 8. In this regard the judge said:
“I am satisfied that she has established the start of a family life with both [Mr and Mrs D] but that to interfere with those rights in all the circumstances of this case would not be disproportionate. [The appellant] has not lived with her adoptive parents on a full time basis and they have already demonstrated their willingness and ability to make arrangements for her care and education in India. There is nothing to prevent the adoptive parents from making a formal application to adopt [her] in the United Kingdom by firstly having a home study report completed. If they choose to follow this path they are free to refer to the positive findings in this determination which has failed for technical reasons. On this basis I cannot find that [the appellant’s] circumstances are “truly exceptional”.”
The question in this appeal is whether the above words betray an error of law on the part of the immigration judge in her approach to the appellant’s argument under Article 8.[21]There could be lively argument as to whether the immigration judge was right to describe the failure of the appeal as being “for technical reasons”. The refusal of the U.K. to recognise adoptions effected in India might well be described as a decision which far transcends technicality. Nothing, however, turns on her parenthetical reference in that regard.[22]In its reconsideration the AIT explained its conclusion that the immigration

judge had made no error of law in respect of the argument under Article 8 as follows:

“What then of the appellant’s Article 8 argument? In order to show that she should be admitted despite the terms of the Immigration Rules, she needs to show that her case is truly exceptional. We accept that the Immigration Judge may have assumed too casually that [Mr and Mrs D] could realistically live with the appellant in India: but there is no doubt at all that they have been able to make satisfactory arrangements for her whilst being based in the United Kingdom and visiting her from time to time. That was sufficient when she was younger: it is difficult to see that it would not also have been sufficient at the date of the decision (and even more so today). That the appellant meets some of the requirements of paragraph 310 is not a truly exceptional circumstance … There is no element of discrimination that could count in the appellant’s favour under Article 8. The lapse of time since the appellant’s application was made is no doubt regrettable, but it cannot of itself show that, at the date of the decision, she should have been granted entry clearance. Against anything that could be said on the appellant’s behalf under Article 8, however, we have to accept the fact that if she were admitted, there could be no assurance that she would be allowed to live as part of [Mr D’s] family, until he had satisfied the United Kingdom authorities that he was a proper person to adopt her. As we understand his position, he was not at the date of the decision and has never been in a position to do so. Looking at the matter as a whole, as we do, we are unable to say that the appellant’s circumstances are such that the refusal to allow her entry clearance to the United Kingdom is a disproportionate interference with the rights she has as a person who in India, but not in the United Kingdom, is regarded as the daughter of [Mr D] resident in the United Kingdom. For the foregoing reasons we consider that the Immigration Judge made no material error of law.”
[23]It will be seen that both the immigration judge and the tribunal on reconsideration referred to the appellant’s need under Article 8 to show that her case was “truly exceptional”. In that regard they were adopting the interpretation of the decision of the House of Lords in R (Razgar) v. SSHD [2004] UKHL 27, [2004] 2 AC 368, which had been commended by this court in Huang v. SSHD [2006] EWCA Civ 105, [2006] QB 1. Since then, upon the further appeal to the House of Lords in the case of Huang [2007] UKHL 11, [2007] 2 AC 167, the House has made clear that there is no such test of exceptionality. Wisely in my view, however, Mr de Mello places little reliance upon the misplaced references to exceptionality in the respective decisions. It is clear, in particular, that the immigration judge’s reference to exceptionality was by way only of attachment of that label to a conclusion already reached that, while the appellant’s family life with Mr and Mrs D had started, the interference with it caused by the refusal of entry clearance was not disproportionate to the aims both of effective immigration control and of safeguarding children from inappropriate transfer to alternative parents. She specified three reasons for such a conclusion, namely that:(a) the appellant had not lived with Mr and Mrs D on a full-time basis;(b) Mr and Mrs D had already demonstrated their willingness and ability to make arrangements for her care and education in India; and(c) there was nothing to prevent the appellant from proceeding down the third avenue identified above, namely by compliance on the part of Mr and Mrs D with s.83 of the Adoption and Children Act 2002 and with Part 2 of the Regulations of 2005, followed by application for leave to enter under paragraph 316A.[24]Although the focus of the appeal is on the determination of the immigration judge, I am not surprised that Mr de Mello has found himself tempted to attack the analysis of her reasoning offered by the tribunal on reconsideration. In particular he criticises two passages.[25]First, he points to the tribunal’s criticism of the immigration judge for having perhaps assumed too casually that Mr and Mrs D could realistically live with the appellant in India. From where in her determination did the tribunal collect that such was her assumption? Counsel agree that the tribunal can there only have been referring to her second reason referable to proportionality, namely that Mr and Mrs D had demonstrated their willingness and ability to make arrangements for the appellant’s care and education in India; they also agree that the tribunal misread that comment as a suggestion that Mr and Mrs D could live with the appellant in India. The point which the immigration judge was making was quite different. In effect she was saying only that, in that family life between the appellant and Mr and Mrs D had begun even in circumstances in which the appellant lived entirely in India and Mr and Mrs D were present there only for periods of time, and in that the arrangements made by them for her on that basis had proved beneficial for the appellant, the refusal of entry clearance would not preclude a continuation of family life at that level, and with that degree of benefit for the appellant, even though it would interfere with a potentially fuller family life for the appellant with them in Coventry. In my view that was a highly relevant consideration which the immigration judge was entitled to weigh in the balance. Having misunderstood it, the tribunal wrongly dismissed it.[26]Second, Mr de Mello criticises the further feature thrown into the equation by the tribunal, namely that, were she admitted to the U.K., there could be no assurance that the appellant would be allowed to live as part of the family of Mr and Mrs D until they had satisfied the U.K. authorities that they were proper persons to adopt her. Although in [32] below I will stress that, until a professional appraisal is made of the suitability of Mr and Mrs D to adopt the appellant, it cannot indeed be stated with certainty that it is appropriate for her to live with them, the spectre that, following her entry to the U.K., the appellant would be taken into care at any rate pending such an assessment seems too remote a chance to warrant reference. Furthermore, insofar as the tribunal’s comment is predicated upon an understanding that, until a child is either made the subject of an adoption recognised in the U.K. or is declared suitable for adoption, there is a significant risk that he will not be allowed to live in the U.K. with the soi-disant adopters, the tribunal may momentarily have forgotten the class of de facto adopted children who come to the U.K. with their “parents” pursuant to paragraph 309A and who, so far as one can tell, are in principle allowed to live with them notwithstanding the absence of a legally recognised status as adopted children.[27]So Mr de Mello may well be right to submit that on reconsideration the tribunal’s extra contributions to the argument under Article 8 may have lacked their customary cogency. Nevertheless he recognises that his skills of demolition must be applied to the reasoning not of the tribunal on reconsideration but of the immigration judge herself.[28]The crux of Mr de Mello’s argument on this appeal is that the evidence before the immigration judge clearly showed that it would be in the best interests of the appellant, and indeed that at the time of the ECO’s refusal it had been in her best interests, to come to live with Mr and Mrs D in Coventry; that the immigration judge failed to place that feature into the balance; and that, had she done so, she could have concluded only that the interference with the appellant’s family life reflected in the ECO’s refusal was disproportionate and thus unjustified.[29]Mr de Mello’s starting point is the decision of this court in Pawandeep Singh v. ECO, New Delhi [2005] QB 608. At first sight the case has a number of parallels with ours. A married couple settled in the U.K. adopted a baby boy, loosely related to them, in India. Thus, as here, the adoption was not recognised in the U.K. When he was aged three, the couple applied for his entry clearance, which was refused by the ECO. On appeal the adjudicator found that Article 8 was engaged in that family life between the boy and the couple had arisen in India and that the ECO’s decision had unjustifiably interfered with it. On further appeal the IAT held that the adjudicator had been wrong to find that family life had arisen and thus that Article 8 was engaged. On yet further appeal, this court held that the tribunal had erred in reversing the decision of the adjudicator. It is important to note that, as stressed in the judgment of Dyson L.J. at [1] and [17], the issue before this court was only whether the adjudicator had been entitled on the evidence to find that family life had arisen. There was no secondary argument placed before this court on behalf of the ECO to the effect that, had it arisen, his decision to interfere with it was proportionate and thus justifiable. Critical to his argument on the present appeal, says Mr de Mello, is [34] in the judgment of Dyson L.J., which reads as follows:
“I would accept that an inter-country adoption which has come about in circumstances in which little or no regard has been had to the best interests of the child must be viewed with great caution. An adoption order made in those circumstances should not, of itself, be given much weight in deciding whether family life has been established. But, there will be cases in which, although the order was made without regard to the best interests of the child, it can be seen, with hindsight, that adoption was, in fact, in the child's best interests; and that the fact that the order was made, and has been recognised in the jurisdiction in which the child has been living, has enabled a family relationship to develop. In such circumstances the fact that the order was made without regard to the child's best interests is not a reason to refuse recognition to the family life which has, in fact, developed as a result of the order. All will depend on the circumstances of the case. The best interests of the child will, of course, be relevant – and may well be determinative – at the stage at which the court has to decide the extent to which respect should be given to family life … or whether interference with family life is justified under article 8(2).”
I have italicised the final clause of the paragraph in order to reflect the stress laid upon it by Mr de Mello, even though, in the light of the only issue before the court, it was only an aside. In the present case Mr de Mello has the benefit of a finding by the immigration judge, which – by contrast – has not since been under challenge, that family life had begun to arise between the appellant and Mr and Mrs D and that therefore Article 8 was engaged. Thus the decision of this court in Pawandeep Singh is of no direct relevance to the case; its indirect relevance, according to Mr de Mello, is that it stresses that decision-makers as to whether a child should be allowed to enter the U.K. can, and sometimes should, reach a conclusion that a purported adoption is in the best interests of the child even though it has not been made following such professional enquiries as to its suitability as are analogous to those required in the U.K.[30]It was patently in the best interests of the appellant, continues Mr de Mello, that she should be allowed to join Mr and Mrs D here. What, he asks rhetorically, about the finding of the guardianship judge in India that Mr and Mrs D could look after and maintain the appellant in all respects? What indeed about the immigration judge’s own positive findings, all relevant to welfare, that each of the requirements in paragraph 310(ix), (x) and (xi) was satisfied? Was there a scintilla of evidence to suggest that, on the contrary, it might not be in the interests of the appellant to live with Mr and Mrs D in Coventry?[31]Necessarily linked to these arguments is Mr de Mello’s assault on the immigration judge’s third reason for concluding that interference with the appellant’s family life would not be disproportionate, namely that it was open to the appellant, and more realistically to Mr and Mrs D, to proceed down the avenue provided by paragraph 316A. When pressed to state whether such was a relevant consideration, Mr de Mello stated first that it might or might not be relevant; but he soon recognised that he had to submit that at any rate in the present circumstances it was irrelevant. Stressing the words of Dyson L.J. set out at [29] above, Mr de Mello submits that a process of enquiry in England into the suitability of the adoption, which he tells us might proceed for between one and two years, would demonstrably fail to serve the timescale of the appellant. Mr de Mello recognises that in this regard he cannot point to the appellant’s present age, namely almost 14, because the enquiry is into circumstances obtaining at the time of the ECO’s refusal; so his argument is that, in relation to a child then aged ten and in the light of the weight of the other evidence as to where her interests then lay, the existence of the avenue provided by paragraph 316A was of no materiality.[32]I am unable to accept Mr de Mello’s arguments. On any view there was good evidence that Mr and Mrs D were well serving the interests of the appellant in India. Although everything suggests that his enquiry had been – no doubt permissibly – perfunctory, the guardian judge in Ludhiana had so concluded. Equally, after reading the written evidence of Mr and Mrs D and hearing oral evidence from them, the immigration judge had concluded similarly and had reached the positive findings referable to the parts of paragraph 310, other than (vi), upon which Mr de Mello relies. I cannot accept his contention that, when she weighed proportionality, the immigration judge failed to bear in mind these positive findings which she had articulated in the immediately preceding paragraphs. Indeed in the crucial final paragraph she referred back to “the positive findings in this determination”. But there was no independent evidence – instead only surmise which might or might not be justified – that it would conduce to the welfare of the appellant for the present arrangements beneficial to her to be ended and for her to make a new life in the home of Mr and Mrs D in Coventry. No professional appraisal of the home of Mr and Mrs D or, more importantly, of their personalities, relationship and background history, had been undertaken. The appellant herself had not been interviewed; she had not given evidence to the immigration judge; her views had not been collected; her relationship with Mr and Mrs D had not been appraised by any independent observation of her with them; and their proposals for her life, including education, in Coventry and for the maintenance of her ties with India had not been spelt out, let alone subjected to independent scrutiny. In effect none of the professional checks which under our law are regarded as elementary to an analysis of whether a child’s interests are served by living as an adopted child in the home of others had been undertaken. Nor are such checks regarded as necessary only in the jurisdictions of the U.K. Here lies the relevance of the Convention. It demonstrates that elaborate professional enquiries are regarded at an international level as necessary. Indeed, intriguingly, India itself now subscribes to the Convention: its subscription suggests its recognition that, while adoptions within India may still validly take place in the absence of such enquiries, inter-country adoptions at any rate require them to be undertaken.[33]My conclusion is that the availability to the appellant of the avenue provided by paragraph 316A was a relevant consideration for the immigration judge to weigh in her appraisal of proportionality. In the event she attached substantial weight to it. The degree of weight to be attached to it was a matter for her but, as a footnote, I should state that in my view, as in hers, its relevance was indeed substantial.[34]I consider that on reconsideration the tribunal was right to conclude that the immigration judge had made no error of law in her despatch of the appellant’s argument under Article 8; and so I would dismiss the appeal.[35]I agree. The issue in this case is whether Immigration Judge Osborne made an error of law when dealing with Article 8 which the AIT should have identified. The immigration judge had found that there was at least a start to family life and that that life would be interfered with by refusing entry clearance as sought under paragraph 310 of the Immigration Rules. Such interference would be in accordance with domestic law and would pursue the legitimate objective of maintaining effective immigration control. Consequently, what remained to be determined was the proportionality of that interference.[36]The weighing-up of considerations relevant to proportionality does not normally give rise to any issue of law: see Mukarkar v. Secretary of State for the Home Department [2006] EWCA Civ 1045. So the question becomes: did the immigration judge in making her decision on proportionality fail to take in to account any relevant factor or arrive at a perverse decision or adopt the wrong approach in law? I am not persuaded that she left any relevant matter out of account. The welfare of the child is referred to in paragraph 33 of her decision, both in respect of the care and education of the child in India and by reference to the need for a home study report if it is desired to bring the child to the United Kingdom for adoption purposes. The extent of the ties between her and the prospective parents are referred to only a few paragraphs earlier and patently cannot have been overlooked. The reasons for the conclusion on proportionality are, in my judgment, quite adequate.[37]The finding on proportionality is a long way from being perverse. In particular, paragraph 316A is a relevant matter, to which the immigration judge was entitled to attach weight, because it provided at least one route to achieving entry to the United Kingdom under the Immigration Rules and was a route available to the appellant. This consisted of making an application for limited leave to enter for the purpose of being adopted. That course requires certain safeguards to be observed, especially (viii), namely compliance with the legal requirements for an adoption in the United Kingdom. That would include a home study report. That is an important step intended to ensure that the prospective parents are suitable as parents for the adoption of the child in question. Requiring the appellant to follow that course cannot in the circumstances of this case be regarded as inappropriate. It was clearly open to the Immigration Judge to conclude that a refusal of clearance for entry outside the Immigration Rules was proportionate.[38]I accept that she was wrong to apply the test of whether the circumstances “were truly exceptional”, given the decision now available of the House of Lords in Huang. That error, however, does not require the appeal to be allowed if this court concludes that on no view of the facts could the respondent’s decision be disproportionate on a proper approach to this issue: see AG (Eritrea) v. Secretary of State for the Home Department [2007] EWCA Civ 801 at paragraph 37. That is the conclusion which I have reached and in those circumstances I agree that this appeal should be dismissed.[39]I agree with both judgments and have nothing useful to add.

Cited in 2 later judgments