Case No. UKUT-00197-(IAC)

which are also reproduced in the Appendix. The agency must also obtain a written report from a registered medical practitioner about the health of the prospective adopter, obtain written reports of each of the statutory interviews with persons nominated by the prospective adopter to provide personal references, contact the local authority for information about the prospective adopter which may be relevant to his suitability and, if the agency considers it necessary, obtain personal references from the prospective adopter’s former spouse, civil partner or partner. 37. The agency’s writ ten plan, written in consultation with the prospective adopter, must map out the procedure for assessing the prospective adopter’s suitability. The detailed contents of the report are set out in reg. 30. This material is then conveyed to the adoption panel whose function is to make a recommendation to the agency as to whether the prospective adopter is suitable to adopt a child. In considering what recommendation to make, the adoption panel may request additional relevant information from the adoption agency and obtain legal advice. Before making any recommendation, the adoption panel must invite the prospective adopter to attend a meeting of the panel. There is scope for the prospective adopter to apply to the Secretary of State for a review by an independent review panel. 38. Once this procedure has been followed, and the adoption agency has received the panel’s recommendation that a prospective adopter is suitable, the material is then sent to the Secretary of State including the record of the proceedings of the adoption panel, its recommendation and the reasons for its recommendation and, where there h as been a review, the relevant material generated by that review. 39. There are also provisions within the regulations imposing a requirement to provide counselling, information and suitable preparation for the adoption. The preparation includes the provision of information to the prospective adopter about a range of material considerations and skills which are necessary for an adoptive parent. 40. In Scotland, the Adoption Recognition of Overseas Adoptions (Scotland) Regulations 2013 and the Adoption and Children (Scotland) Act 2007 provide that , if approved by the adoption agency , the application and supporting documents are passed to the Scottish government’s Intercountry Adoption (ICA) team which checks that the material complies with the relevant United Kingdom , Scottish and adoptee ’ s home country legislation. The application will then be sent to an independent social worker to ensure that the ‘Home Study’ assessment has been carried out properly. Once the application is deemed complete and all supporting documents are in place, the ICA team, acting on behalf of Scottish ministers, attaches a Certificate of Eligibility to the prospective adopters. 41. This summary of the detailed regulations imposed upon the prospective adopters, the accredited adoption agency, the adoption panel and those involved in preparing the case for the Certificate of Eligibility demonstrate the nature and scope of the enquiries made and the decision-making process of the adoption agency. The Certificate of Eligibility must be seen as the definitive outcome of that process which exceeds the ability of either the Home Office or the Immigration and Asylum Tribunal to form its own judgement upon the matters which are the subject matter of the report from the adoption agency and the Certificate of Eligibility. The interface between the law of a doption and the Immigration Rules 42. Nevertheless, paragraph 316A imposes yet further requirements which may not be the same considerations as the adoption agency or the DfE is required to assess. It is, however, very likely that the requirements of the Immigration Rules have been touched upon in the adoption panel’s assessment. For example, sub-paragraph (viii) of paragraph 316A requires that the appellant will be adopted in the United Kingdom in accordance with the law relating to adoption in the United Kingdom which must necessarily include the work of the adoption agency and the DfE . Further, in the same sub-paragraph, an adoption of ‘ convenience arranged to facilitate the child’s admission to the United Kingdom ’ is prohibited. However, it seems unlikely that the assessments made by the agency and the adoption panel will not have considered whether the adoption is genuine and not one of convenience. 43. Similarly, the requirement in paragraph 316A(vi) that the adoption is due to the inability of the original parent or carer to care for the child and, therefore, a genuine transfer of parental responsibility to the prospective adopter is likely to have featured in the adoption agency’s report on suitability and the Certificate of Eligibility. ‘ has…broken his ties…with his family of origin’ 44. We note that the requirement in paragraph 316 A (vii) that the child ‘ has lost or broken or intends to lose or break his ties with his family of origin ’ will be most readily apparent when it is intended that his family of origin cease to have contact with him. However, we would not construe this as requiring a complete cessation of contact. In a case such as this, where the grandmother is incapable of looking after her teenage grandson, it is inconceivable that this should require her to have no further contact. Similarly, whilst the child’s adult siblings are not participating in his up-bringing, we do not regard it as necessary to establish that the ties of kinship must be broken completely before entry clearance will be permitted. The words of paragraph 316A(vii) must therefore be read as envisaging the breaking-off of the existing arrangements for the child’s care. The expression ‘ has lost or broken or intends to lose or break his ties with his family of origin ’ contemplates a fundamental change in the arrangements for the child’s care so as to exclude a situation where the existing arrangements will continue in practice as before but with only a nominal alteration effected by the adoption. However, it must be construed purposively so as not to defeat the aim of the law relating to adoption and the Immigration Rules which contemplate the grant of entry clearance for the purpose of adoption. 45. The above is consistent with, and derived from, the decision of the Immigration and Asylum Tribunal in VB v Entry Clearance Officer, Ghana [2002] UKIAT 1323, a decision of its then President, Collins J, paras. 13 to 15. Our re-evaluation of the First-tier Tribunal’s determination 46. In his determination, the First-tier Tribunal Judge commenced his findings by stating in paragraph 10: I n submissions the appellant’s representatives accepted that the appellant could not meet the requirements of paragraph 316A. The appellant has not disputed that the adoption in Jamaica is not recognised in the UK under the 2013 Order. The current version of the Order still does not include Jamaica, and adoption orders in Jamaica remain unrecognised in the UK. Similarly Jamaica is not a party to the Hague Convention which is a requirement of paragraph 316, through the application of paragraph 316D. I find that the appellant does not reach the requirements of paragraph 316A, as he is already subject to an adoption order which is not recognised under the 2013 Order and from a country which is not party to the Hague Convention. 47. This paragraph displays a misunderstanding of the circumstances in which a child may be admitted to the United Kingdom for the purposes of adoption. It is, of course, true that Jamaica was not and is not a party to the Hague Convention. It is also true that the adoption affected by CM in accordance with Jamaican law is not an ‘overseas adoption’ recognised by the United Kingdom. The fact that such an adoption has taken place, however, does not operate as a bar to the appellant satisfying the requirements of paragraph 316A which was the reason advanced by the judge for stating that the requirements of paragraph 316A were not met. 48. It is also clear that, as the judge record s in paragraph 11 of the determination , the submissions made by the appellant’s representative that the arrangement with the sponsor amounted to a de facto adoption were also misplaced. 49. Further, the judge appears to have misunderstood the significance the assessment made by the adoption agency. In paragraph 8 of the determination, the judge records : The sponsor had to complete a Home Study and had to be assessed in the UK by a UK social worker with her suitability to adopt. The findings of the UK social worker were then sent to the overseas country as part of the adoption process [in Jamaica ].… 50. We consider that this suggests the First-tier Tribunal considered the accredited UK adoption agency’s function was to provide evidence in support of the Jamaican adoption. The Judge did not, therefore, engage with the process under which the adoption agencies report was directed towards the UK government through the medium of the DfE certifying CM as eligible to adopt the appellant. 51. For the reasons we have stated, whilst it is understandable why the First-tier Tribunal Judge was confused as to the relevance of the adoption agency’s report and the Certificate of Eligibility since these matters were not brought to her attention, this does not operate to prevent the determination being legally flawed. Inevitably, once the requirements of the Immigration Rules had not, according to the First-tier Tribunal, been met, the Article 8 claim was bound to fail. The Rule 24 response 52. It is, perhaps regrettable that the misunderstanding has gone beyond the First-tier Tribunal. In the Rule 24 response, the Specialist Appeals Team opposed the appellant’s appeal. The response pointed out that the judge was guided by the legal submissions of the appellant’s representative, the judge having been informed that the appellant conceded his case under paragraph 316A. It further alleges that the Judge was bound to accept such a submission and not go behind it. We reject that submission. It is of course for the Judge to apply the law and the concession made as to the law applicable under paragraph 316A was legally flawed. Such a legal flaw as this cannot be remedied by concession. 53. The response makes a further serious error. The writer states : Whilst the judge’s findings related to the matters under paragraph 309B and 310 of the Immigration Rules, these were essentially concerned with the same issue and that was the serious and compelling family circumstances (namely whether the grandmother’s state of health, lack of parents and lack of interest from his siblings), which make exclusion undesirable…. Although under a different provision, the judge took into account all of the circumstances of the appellant including the grandmother’s health, the existence of close relatives in Jamaica, the lack of evidence to suggest efforts were made with siblings to take a role in the appellant’s care and upbringing. 54. In our judgement, the determination was fatally flawed by applying the incorrect - and different - part of the Rules. Paragraph 316A is not ‘ essentially concerned ’ with the same issue at all. It is not concerned with serious and compelling family circumstances making exclusion undesirable. 55. Based on what we consider to be an unlawful approach adopted by the Secretary of State in the Rule 24 response, it is unsurprising that the respondent adopted the judge’s finding that there was no interference with family life as it would continue on the same basis that it has since its inception. What was the intended outcome? 56. We are bound to question what the Secretary of State and the First-tier Tribunal considered to be the proper and suitable outcome. It appears to have been contemplated that the child should remain with his partially paralysed grandmother whose inability to look after him was not challenged. Assuming that it was not considered appropriate that the appellant should become feral, the underlying assumption must be that the child should live with one or other of his adult siblings, none of whom had, on the evidence, taken steps to assume any responsibility towards him, two of whom were his elder brothers aged 2 6 and 24 and two of whom were his elder sisters whose circumstances had neither been examined nor the subject of any evidence. We consider that such a dismal outcome should at least have sounded alarm-bells. 57. Thankfully, Mr Duffy did not take the same view as that adopted in the Rule 24 response. He did not materially challenge the submissions made by Ms Cronin. In these circumstances, we conclude that the First-tier Tribunal made a material error of law and that its determination should be set aside. We re-make the d ecision allowing the appeal of T Y by our finding that the appellant met the requirements of the Immigrati on Rules. We consider that a decision made by the respondent that runs counter to the Immigration Rules in the circumstances of this appeal engages Article 8 and amount s to a breach of it , see for example Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075 and Ahmadi & Anor, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 1721 in which the Courts have found family life to exist as between prospective adopters and adoptive children and that the obligation to respect family life requires not only that a State refrains from interfering with existing family life but may also entail s a positive obligation to permit family life to develop. The re-making of the decision 58. We conclude: (i) The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued. (ii) The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it. (iii) Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted. (iv) The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility. 59. We are satisfied that all of the requirements of paragraph 316A have been met. There has never been an issue as to many of them. Thus, the requirement s of age, dependency and the absence of any recourse to public funds ha ve each been met. We are also satisfied that the evidence fully established CM having sole responsibility because of the grandmother’s inability to provide appropriate care for T Y. The process adopted by CM has been a genuine transfer of responsibility in circumstances where there has been, and is intended that there will be, a fundamental change in the ties with the appellant’s family of origin, notwithstanding the fact that members of his family are not expected to sever their links with him. The legal process adopted by CM has carefully followed the law relating to adoption in the United Kingdom . The adoption is the result of the circumstances in which TY now finds himself in Jamaica and is not an artificial device to facilitate admission. Accordingly, we allow the appeal under Article 8. 60. If much of the contents of this determination appears to have striking similarities with the contents of Ms Cronin’s written submissions as they appear in her note to the Tribunal, her skeleton argument and her grounds of appeal, this is not coincidental. We are indebted to the assistance she has provided in guiding the Tribunal through adoption law in the United Kingdom . DECISION 1. The Judge made an error on a point of law and we re-make the decision in the following terms: a. the app ellant satisfies the requirements of the Immigration Rules; b. accordingly, the appeal is allowed on human rights grounds . ANDREW JORDAN JUDGE OF THE UPPER TRIBUNAL 14 June 2018 Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. Appendix Adoptions with a Foreign Element Regulations 2005/392 3. Requirements applicable in respect of bringing or causing a child to be brought into the United Kingdom A person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where section 83(1) of the Act applies must– (a) apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and (b) give the adoption agency any information it may require for the purpose of the assessment. 1 4.— Conditions applicable in respect of a child brought into the United Kingdom (1) This regulation prescribes the conditions for the purposes of section 83(5) of the Act in respect of a child brought into the United Kingdom in circumstances where section 83 applies (2) Prior to the child's entry into the United Kingdom, the prospective adopter must– (a) receive in writing, notification from the Secretary of State that she has issued a certificate confirming to the relevant foreign authority– (i) that the person has been assessed and approved as eligible and suitable to be an adoptive parent in accordance with Part 4 of the Agencies Regulations or corresponding Welsh provision; and (ii) that if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption is effected, the child will be authorised to enter and reside permanently in the United Kingdom; (b) before visiting the child in the State of origin– (i) notify the adoption agency of the details of the child to be adopted; (ii) provide the adoption agency with any information and reports received from the relevant foreign authority; and (iii) [discuss with the adoption agency the proposed adoption and information received from the relevant foreign authority; (c) visit the child in the State of origin (and where the prospective adopters are a couple each of them); and (d) after that visit– (i) confirm in writing to the adoption agency that he has done so and wishes to proceed with the adoption; (ii) provide the adoption agency with any additional reports and information received on or after that visit; and (iii) notify the adoption agency of his expected date of entry into the United Kingdom with the child. (3) The prospective adopter must accompany the child on entering the United Kingdom unless, in the case of a couple, the adoption agency and the relevant foreign authority have agreed that it is necessary for only one of them to do so. (4) Except where an overseas adoption is or is to be effected, the prospective adopter must within the period of 14 days beginning with the date on which the child is brought into the United Kingdom give notice to the relevant local authority– (a) of the child's arrival in the United Kingdom; and (b) of his intention– (i) to apply for an adoption order in accordance with section 44(2) of the Act; or (ii) not to give the child a home. (5) In a case where a prospective adopter has given notice in accordance with paragraph (4) and subsequently moves his home into the area of another local authority, he must within 14 days of that move confirm in writing to that authority, the child's entry into the United Kingdom and that notice of his intention– (a) to apply for an adoption order in accordance with section 44(2) of the Act has been given to another local authority; or (b) not to give the child a home, has been given. Note 1 - Regulation 34 of the Agencies Regulations and corresponding Welsh provision impose additional functions on the adoption agency in relation to a case where section 83 applies. (see below) Note 2 This text is that same as that Adoptions with a Foreign Element (Scotland) Amendment Regulations 2010/173 (Scottish SI) reg 4 save that this provision has an additional clause stating that (6) - In this regulation, “entry clearance” has the same meaning as in the Immigration Act 1971 Adoption Agencies Regulations 2005/389 (as amended)