VB v Entry Clearance Officer- Ghana [2002] UKIAT 1323 (02 May 2002) [2002] UKIAT 1323

UKIAT
VB v Entry Clearance Officer- Ghana [2002] UKIAT 1323 (02 May 2002)
[2002] UKIAT 1323 · 2002-05-02
[1][2002] UKIAT 1323 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 19 March 2002 Date Determination notified: 02 May 2002 Before The President The Hon. Mr Justice Collins Mrs. D. E. Taylor Mr. T. S. Culver Between VB APPELLANT and Entry Clearance Officer- Ghana RESPONDENT For the Appellant: Mr. C. Timson, Solicitor. For the Respondent: Mr. M. Davidson, HOPO. DETERMINATION AND REASONS On 16 December 1999 the appellant who was born on 28 September 1983 applied for an Entry Clearance to enable her to settle in the United Kingdom with her adoptive father. He is Christopher Boadi who is the brother of the appellant's maternal grandmother and so her great uncle. He is a British Citizen who was born in September 1933. He is now retired and lives with his wife in Manchester. The appellant was legally adopted by Mr. Boadi and his wife on 8 December 1998 by order of the High Court of Justice of Ghana sitting at Kumasi.[2]In order to obtain an entry certificate, the appellant had to meet the criteria set out in Paragraph 310 of HC395. These are set out in eleven subparagraphs. The material ones are as follows:
"... [T]hat he ... (ii) is under the age of 18; and ... (ix) was adopted due to the inability of the original parent(s) or current carers 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 was not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom ..."
[3]On 23 March 2000 her application was refused by the respondent. The grounds were stated thus:
"... I am not satisfied that you have lost or broken your ties with your family of origin and I am not satisfied that the adoption is not one of convenience arranged to facilitate your admission to the United Kingdom"
. It was being said that there was a failure to establish that the appellant met the provisions of Paragraph 310(x) and (xi).[4]The appellant appealed to an adjudicator. On 30 July 2001 her appeal was dismissed. The adjudicator (Mr. J. Nicholson) concluded that the adoption was not one of convenience, so that Paragraph 310(xi) was fulfilled, but that the appellant had not broken her ties with her family of origin. Leave to appeal was granted because the 'grounds raise an issue as to the proper interpretation of Paragraph 310(x) of HC 395'.[5]The adjudicator, in a careful determination, has set out the facts clearly. The appellant's mother died in childbirth and her father left her in the care of his mother, Mrs. Akua Bena. She brought the appellant up as if she was her own daughter. Mr and Mrs Boadi had taken an interest in the appellant and had done what they could to ensure that she was well looked after. This included financial assistance, although neither Mr. Boadi nor his wife had seen the appellant since they were in the United Kingdom and she was in Ghana, but they had spoken to her on the telephone. He accepted the responsibility on her maternal side which, in the absence of her mother, would otherwise not have been met. In 1993, the appellant's grandmother moved from Kumasi to engage with her husband in cash crop farming in the west of Ghana and the appellant, then 10 years old, was left in the care of the Reverend Seth Adu Gyamfi. Since then, Mr. Boadi has been maintaining her financially.[6]Perhaps because they were aware of the requirements of Paragraph 310(x), both Mr. Boadi and Rev. Seth maintained that the appellant had lost contact with her grandmother. That was untrue. As the appellant said in interview, she visited her grandmother (whom she referred to as her mother) every month. The adjudicator was also not persuaded that Mr. Boadi had told the truth about his intentions: he had said that he had adopted the appellant because in 1998 he was planning a return to Ghana, but had since changed his mind. However, that was at odds with his witness statement in which he had said that he had explained to Rev. Seth that he would not be returning to Ghana and wanted to adopt the appellant so that he and his wife could bring her to the United Kingdom. The adjudicator's conclusion that Mr. Boadi and Rev. Seth had done the appellant's claim no favours in their attempts to explain away the evidence is all too obviously apposite.[7]The adjudicator's findings, so far as material, were as follows:
"In the case of the appellant, the role for her extended family was always going to be that much greater. On the appellant's paternal side, that role has been filled by Mrs. Bena, whom she still regards as her own mother. On the maternal side of the family, the role has fallen to Mr. Boadi, who has provided the financial support the appellant requires for many years. Asked why she could not live with Mrs. Bena, the appellant said that her mother had no job, so Mr. Boadi was taking care of her. That, I think, neatly sums up the position. Mrs. Bena could not afford to feed and look after the appellant when she and her husband moved to the farm, so she left the appellant under the day to day control of the Rev. Seth. Mrs. Bena continued to provide the emotional support for the appellant, albeit from a distance, and Mr. Boadi took on an increasing role and underwrote the arrangements financially. If Mr. And Mrs. Boadi had returned to Ghana, I think it very likely that the appellant would have gone to live with him. That said, I am not persuaded that Mr. Boadi ever really intended to return there or that he would have felt the need to formally adopt the appellant had he done so. It seems to me that things simply came to a head as the appellant grew older. The appellant said that she used to sew, but she had stopped this and had nothing to do. Some decision clearly had to be taken about her future. It was probably not practical for her to move to the farm with Mrs. Bena and the logical thing was for Mr. Boadi to step in. Financially at least, he had effectively become her guardian. Accordingly, to use Mr. Boadi's own words, "
We wanted to formally adopt Vivian so that we could bring her to the UK".[8]On those findings of fact, the adjudicator concluded that the adoption was not one of convenience within the meaning of Paragraph 310(xi). He pointed out that most overseas adoptions took place in order to facilitate entry into the United Kingdom and so that by itself would not make it an adoption of convenience. The core of his decision lies in the following two sentences in paragraph 18 of his determination: "An adoption of convenience, rather like a marriage of convenience, is one that exists purely for a particular purpose. There is no real substance to it, save in relation to that purpose".[9]He went on the use the word 'sham'. If the adoption was merely to facilitate immigration and the relationship was not going to persist in any meaningful way, it would fairly be described as a sham and so an adoption of convenience. The adjudicator's reasoning has not been challenged before us and we are content to accept that his approach was correct.[10]Before coming to the construction of Paragraph 310(x), we should mention human rights. The Entry Clearance Officer's decision was made before 2 October 2000 and the adjudicator records that in the light of the I.A.T. decision in Pardeepan there was no application for him to consider human rights issues and he had not done so. Before us, it was submitted that that was not necessarily correct and we could and should consider the impact of Article 8. The Immigration and Asylum Act 1999 (Commencement No.6, Transitional and Consequential Provisions) Order 2000 (2000 No.2444) provides that inter alia s.65 of the 1999 Act is not to have effect in relation to events which took place before 2 October 2000: see Articles 3(1)(a) and 4(1)(a) and 4(2) and Paragraph 1(7) of Schedule 2. In any event, on appeal the adjudicator and the tribunal can only take account of material which was available to the Entry Clearance Officer. Thus the appeal is concerned and concerned only with the correctness of the decision at the time it was made. In this case, that means that we have to see what was available in March 2000. At that time, the Human Rights Act 1998 was not in force and the House of Lords has decided that it has no retrospective effect. It follows in our view that the adjudicator was correct and that we cannot consider whether the decision breached Article 8.[11]We are bound to say that we think Paragraph 310(ii) in particular is vulnerable. A cut off at the age of 18 may not be proportionate in an individual case. Here the adjudicator was told that the appellant's grandmother had died but there was no proof provided and without such proof he was not prepared to accept that she had. That proof has now been provided and it establishes that she did indeed die at the beginning of last year. The adjudicator concluded his determination: "...[I]t seems to me that, if satisfactory proof of Mrs. Bena's death is forthcoming then, all other things being the same, the appellant would come within the Rules at this particular time".[12]In the light of that, the appellant, who was then still under 18, went to the British High Commission to make a further application. She says that she was informed she could not do so until her appeal was determined. The respondent does not admit that she was prevented from making an application but we have seen a letter which indicates that she would probably have been advised that there was no point in making a fresh application until the existing appeal was concluded. If such advice was given and a fortiori if she was prevented from making an application, the High Commission acted wrongly. There is nothing to stop a further application being made while an appeal is pending, although we do not doubt that it would not be determined (if it had to be) until the appeal process was concluded. In this case, it is of some considerable importance because she did not manage to make her application until 1 October 2001, three days after she became 18. She therefore cannot now meet the requirements of Paragraph 310(ii) and would have to depend on an appeal under s.65 of the 1999 Act if she has to rely on her fresh application. In addition, any misinformation or prevention of a timely application (if established) would have to be taken into account.[13]We now turn to the true construction of Paragraph 310(x). The adjudicator discussed in Paragraph 17 of his determination what was meant by the expression "ties with his family of origin". He correctly decided that in the circumstances her grandmother, Akua Bena, and her grandmother's family by whom the appellant had been brought up were her family of origin. In our view 'family of origin' is not limited to natural parents but serves to identify the family with whom an individual was living and by whom he or she was being brought up and cared for before the adoption took place.

(x) What he said was this:

"In general terms, a tie is something which binds two or more things together. In the case of a family tie it seems to me that the bond is essentially an emotional one. In this case, ... the appellant's ties to Mrs. Bena were the natural ties that exist between a mother and her daughter. Mrs. Bena brought the appellant up as her own as befits her custom"
. He went on to say that the appellant's regular visits to Mrs. Bena showed that the ties had not been broken: to hold otherwise would be to do 'complete violence to the language used by the Rules'. The mere fact of adoption could not break the ties.[14]Modern thinking does not believe that it is necessarily in the best interests of an adopted child to lose all contact with his or her parents or families of origin. Furthermore, the adjudicator's construction would make it almost impossible for an adopted child from a culture which recognises, for example, the adoption by childless couples of children of relations who are unable to provide for them to achieve compliance with 310(x). In Re J (Adoption-non patrial) the Court of Appeal disapproved of the restriction imposed by Paragraph 310(x) because it was likely to work against the best interests of the child, although, since that case did not involve a foreign adoption and a subsequent application for leave to enter the United Kingdom, it did not deal with the construction of the provision. And in Re B (a minor) [1999] 2 All ER 576 , the House of Lords decided that an adoption which was intended to and did achieve a genuine transfer of parental responsibility and conferred substantial benefits on the child should be recognised notwithstanding that those benefits were conferred by the acquisition of British Citizenship and a right to remain in the United Kingdom. It is to be noted that it was not suggested in that case (which involved an adoption in the United Kingdom) that the adopted child had severed her ties with her family of origin in the sense that there was no more emotional bond. It was not necessary to consider that, but it would be strange if a different result followed from a United Kingdom and a foreign adoption assuming each involved a genuine transfer of parental responsibility. The chance that at the material time the child happened to be in the United Kingdom perhaps as a visitor should not determine his or her future.[15]We are satisfied that 'ties with his family of origin' does not have the wide meaning the adjudicator has applied. It is intended to ensure that the adoption is not as it were temporary and that, once the child has obtained the entry to the United Kingdom which the adoption will achieve, the family of origin takes back responsibility. There must be a loss or break of the ties of responsibility. Those of affection may remain. Were it otherwise, a child of a single parent who was smitten with a terminal illness and was wholly unable to care for him or her could not join adoptive parents merely because he or she retained affection for and visited the dying parent.[16]The existence of the wider ties referred to by the adjudicator may throw doubt on the genuinness of the adoption and may justify in a particular case a finding that Paragraph 310(ix) or (xi) has not been satisfied. But if an Entry Clearance Officer is satisfied that 310(ix) and (xi) are satisfied he should only refuse under 310(x) if not satisfied that the adoption is intended to be permanent and that the family of origin is not going to take back responsibility when the entry is achieved. We doubt that a refusal based solely on 310(x) would save in exceptional circumstances be justified since the lack of permanency would usually result in a failure to meet the requirements of 310(xi). While we have not considered Article 8 of the European Convention on Human Rights directly, we are sure that any other construction of 310(x) would not meet its requirements. This fortifies us in our construction of 310(x).[17]It follows that this appeal must be allowed. We direct that an Entry Clearance be granted forthwith to enable the appellant to settle here with her adoptive parents. Sir Andrew Collins President