[2025] UKUT 00352 (IAC)

The Judge referred to para. 310(vi)(a) of the Immigration Rules and ruled that, in this context, the Rules were designed to reflect the UK adoption law and that what was required was that at the point in time that the adoption occurred, it was further to a decision taken by a Court or competent administrative authority, provided the UK recognised the adoption orders of that country. At paragraph [42] the judge said:

“I accept that the UK recognises adoption orders effected under the law of India as per the Adoption Order 2013 as ‘law’ is therein defined.”

The Judge went on to refer to the Court Order and legal opinion relied upon by the Appellant and said, at para. [43]:

“…I accept the adoption is valid in India. I find that the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA. There is no court ‘adoption order’ or order granting an adoption in this case unlike in Buama. The adoption was not conducted or effected by legal authorities in India. In this context, the CARA documents present somewhat of an anomaly in referring to prospective adoptive parents but post-dating both the 9 March 2015 customary adoption and the court order and as such were clearly not part of any consideration by a court as to, for example, suitability for adoption or the best interests of the Appellant. The court order dated 4 December 2015 is an order recognising the validity under Indian law of the existing adoption effected by a customary ceremony on 9 March 2015.”

At paragraphs [44] and [45] the Judge found that:

“44.

In light of my findings regarding the circumstances of the Appellant’s adoption, I have concluded that the Appellant has not demonstrated that she meets limb (a) of paragraph 310(vi).

45.

The Respondent does not however dispute that the adoption is a de facto adoption. I accept that a de facto adoption is presented and that the Appellant thus meets the alternative limb (b) of paragraph 310(vi).”

The Judge found at para. [45] that the Appellant met the alternative limb of paragraph 310(vi) of the rules (so the Appellant was the subject of a de facto adoption) and one might think that no further consideration of para. 310(vi)(a) is necessary. However, Mr Wood submits the proper interpretation of para. 310(vi)(a) remains important because the Appellant will be in a more ‘advantageous’ position in terms of the accrual of other rights going forward. Although neither Mr Wood nor Mrs Nolan were able to articulate clearly what additional rights the Appellant may have for immigration purposes if she falls within the former limb of paragraph 3010(vi) rather than the latter, we have addressed the issue.

In summary, Mr Wood submits the Judge accepted that the Appellant was adopted in accordance with the legal process set out in HAMA. The order made by the Court in India was a valid order and the Deed of Adoption executed by the Sponsors and the Birth Parents was a valid adoption under the HAMA. It was therefore, as the Judge accepted at para. [43], an adoption which was valid in India. Mr Wood refers to the decision of the Upper Tribunal in SK ("Adoption" not recognised in UK) [2006] UKAIT 68, in which the Upper Tribunal ruled that:

“14.

…although the evidence is that the legal process in India did amount to a decision taken by the competent administrative authority there, India is not a country whose adoption orders are recognised by the United Kingdom. The relevant legislation is the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19), as variously amended…” (our emboldening).

Mr Wood submits that SK predated the Adoption Order 2013 The relevant legislation is now the Adoption Order 2013 and India is now a country whose adoption orders are recognised by the United Kingdom. It follows, Mr Wood submits, that the Appellant was adopted in accordance with a decision taken by the competent administrative authority or court in India, being a country whose adoption orders are recognised by the United Kingdom. However, here the Judge introduced, at para. [41], a requirement that the adoption was “further to” a decision taken by the competent administrative authority or Court in India. There was no requirement for a decision or order by a competent administrative authority at the time of, or prior to the adoption. Adoption by persons of the Hindu faith in India is governed by HAMA and provided the conditions laid down for a valid adoption are met, there is an adoption under the law of India. The Adoption Order 2013 provides that evidence that an overseas adoption has been affected can be provided by a certificate that the adoption has been effected, signed or purporting to be signed by a person authorised by the law of the country to sign such a certificate. The use of the words “has been effected” is indicative of the ‘past tense’ and something that has already happened. In any event, Article 3 of the Adoption Order 2013 does not provide an exhaustive list of documents, other evidence is permitted.

Mr Wood submits the Immigration Rules must be read in a purposive way, so that they are consistent with the requirements of the law of England and Wales relating to the adoption of children from abroad. The Judge’s construction of para. 310(vi)(a) of the Rules has the effect that an adoption which is recognised as an overseas adoption under the Adoption Order 2013 is not recognised as an adoption for immigration purposes despite that fact that the Adoption Order 2013 does not in any way exclude adoptions in India under HAMA. As the Upper Tribunal said in SK:

“23.

…The Immigration Rules cannot properly be segregated from the general law for the purpose of attack on their rules on adoption: on the contrary, the Immigration Rules are, so far as we can see, constructed in such a way as to be consistent with the rest of English and United Kingdom law on the effects of overseas adoptions. They need to be coherent, because otherwise the person might be treated as a child of the family for immigration law purposes but not otherwise; or vice versa. Mr Gill asserts that there is no rational basis for treating India differently from the countries that are on the list of designated countries: he provided no arguments in support of that assertion. As we understand it, the position in India, Pakistan and Bangladesh is that adoption is regarded as a private arrangement between families, with no public effects or need for public scrutiny. In the absence of evidence we can take no firm view on the issue, but we incline to the view that, if that is so, it would be a proper reason for exclusion from designation.”

Mr Wood further submits that the Judge had regard to immaterial matters when considering the involvement of CARA. The Judge referred, at para. [43], to the documents presenting as somewhat of an anomaly because they referred to the Sponsors as ‘prospective adopters’ yet post-dated the events of 9 March 2015 and the declarations made by the Court in India. This was not a matter relied upon by the Respondent and the involvement of the CARA was not required prior to the adoption. The Judge failed properly to assess the role of the CARA and the evidence of MT that they had involved the CARA to obtain identity documents on the Appellant’s behalf. In an unreported decision of the Upper Tribunal in BAS v Entry Clearance Officer, EA/03936/2020 and UI-2021-001713 dated 18 December 2022, Upper Tribunal Judge Frances accepted that under the law of India, the individual had been lawfully adopted under HAMA and there was no requirement to register the adoption with the CARA.

Mr Wood submits the Judge failed to address the effect of her exclusion of a valid adoption under HAMA from adoptions recognised as an ‘overseas adoption’ under the Adoption Order 2013. The Judge said, at para. [43], that “the evidence available supports that the adoption was a customary or family adoption which took place on 9 March 2015 and was thereafter recognised by a court as a legally valid adoption in India as conforming to HAMA.”. The Judge’s conclusion that Appellant’s adoption was a legally valid adoption in India is, Mr Wood submits, inconsistent with her finding that it was “a customary or family adoption”. Article 2(2) of the Adoption Order 2013 operates so that a “customary or common law” adoption is not an overseas adoption within the scope of Article 2(1).

Mrs Nolan submits the Judge considered the ordinary meaning of the words in the Immigration Rules which required that the Appellant “was adopted in accordance with a decision taken by the competent administrative authority or court”. The Appellant was not adopted in accordance with a decision taken by the competent administrative authority or court. At para. [41] the Judge referred to the relevant rule and she was right to say that what was required was that, at the point in time that the adoption occurred, it was further to a decision taken by a court or competent administrative authority, provided the UK recognised the adoption orders of that country. Mrs Nolan submits that in the unreported decision relied upon by the Appellant, (BAS v ECO) the Judge referred to a decision of the High Court in India in which it was held that an application for adoption under HAMA subsequently registered under HAMA could be challenged on the basis it should have been made under the Juvenile Justice (Care and Protection of Children) Act 2015. There was, she submits, a process by which an Adoption under HAMA could have been registered. In the appeal before us, there was no evidence of the adoption having been registered by the authorities. The Court in India had simply made a declaration that the adoption was a valid adoption under HAMA. Applying a literal interpretation of the Rules, the Appellant was simply not adopted in accordance with a decision taken by the Court nor any competent administrative authority.