[2025] UKUT 00352 (IAC)

The appeal before the FtT was against the Respondent’s decision to refuse the Appellant’s human rights claim on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. Having concluded that the Appellant is unable to meet the requirements set out in the Immigration Rules, the Judge addressed the Article 8 claim outside the Rules. She had no hesitation in finding that the Appellant had established a family life with the Sponsors and that that the decision to refuse the Appellant leave to enter had consequences of such gravity as to engage the operation of Article 8. Although the Judge said at para. [107], that the decision to refuse entry to the UK did not interfere with her family life as it was then currently enjoyed, she went on to accept that the refusal of entry clearance presented some interference with family life in the sense that it prevented the continuation of family life with the Sponsors in the United Kingdom. The Judge found that the interference was in accordance with the law, and that the interference was necessary to protect the legitimate aim of immigration control.  The central issue in the appeal was therefore whether the decision to refuse leave to enter was proportionate to that legitimate aim.  The Judge’s consideration of that issue was set out in paras. [110] to [121] of the decision.

Mr Wood submitted that the Judge erred in saying, at para. [105], that the current circumstances are that the Appellant is the child of the Sponsors under Indian Law but there has been no adoption recognized by the UK or in accordance with UK law. The recognition of the adoption in the UK was a material factor and the error renders the Judge’s overall assessment irrational. Mr Wood submits the Judge acknowledged that the best interests of the Appellant, is a primary but not a paramount consideration; ZH Tanzania v Secretary of State for the Home Department [2011] UKSC 4. However, she failed to apply the test correctly, having taken into account irrelevant factors such as the possibility of the Sponsors acquiring a ‘certificate of eligibility’ as referred to in para. 309B of the Immigration Rules concerning inter-country adoptions that may be subject to S.83 ACA. The adoption of the Appellant did not have an ‘inter-country’ element and was not a Hague Convention adoption. Finally, Mr Wood submits that the Appellant currently resides in Australia with the Sponsors on a ‘short-term visa’ which is contingent on MT’s employment. The Judge found at para. [117] that the Appellant had no connection to the UK. The Judge acknowledged the absolute right of the Sponsors as British citizens to return and reside in the UK but failed to have regard to their ability to do so without considering the Appellant’s ability to enter the UK as part of the family unit. The Judge failed to have any proper regard to the impact of the refusal of entry clearance on the Sponsors.

We do not need to address each of the criticisms made by Mr Wood regarding the Judge’s analysis of the best interests of the Appellant and whether the decision to refuse leave to enter is proportionate. In our judgment there was a fundamental error in the approach of the Judge which is material to her assessment of proportionality. The Judge found at para. [43] that the Appellant had been adopted by the Sponsors in accordance with HAMA and the adoption “is valid in India”. For reasons that we have already set out at some length in our consideration of ground one, evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules, but that is not to say, as the Judge did at para. [105], that “the Appellant is a child of the Sponsors under Indian law but there has been no adoption recognised by the UK or in accordance with UK law.” India is now listed in the Adoption Order 2013 and so the adoption of a child such as the Appellant is specified as an overseas adoption effected under the law of India. Contrary to what was said by the Judge, it is therefore an adoption which is recognised by the UK. On this we consider that the Judge fell into error.

We cannot be satisfied that the error made by the Judge was immaterial. If she had started her assessment of proportionality on the correct footing that there was a valid overseas adoption effected under the law of a country listed in the schedule to the Adoption Order 2013, and thus recognised by the UK, that may have had an impact upon her consideration of other relevant factors. The recognition of an overseas or foreign adoption does not of itself prevent leave to enter or remain being refused, but it plainly has implications upon the assessment of an Article 8 claim because of the recognition of the clear and permanent parent and child relationship. The adoption does not bind the secretary of state in immigration proceedings, but an adoption that is otherwise recognised by the UK is plainly a relevant consideration.

In our judgment there is force in the criticisms made by Mr Wood regarding the Judge’s consideration of the best interests of the Appellant, which were plainly relevant to the overall consideration of whether the decision to refuse entry clearance was proportionate. The best interests are "a primary" consideration and could be outweighed by other compelling rights-based factors, including those set out in Article 8(2).

A fact sensitive assessment is required, which will include the circumstances surrounding the HAMA adoption. On the particular facts here, the Judge concluded, having regard to the significant length of time that the Sponsors have cared for the Appellant and during which she has lived with them as a family unit, that there has been a genuine transfer of parental responsibility and that the adoption is not one to be regarded as “of convenience arranged to facilitate the Appellant’s admission to the UK”. The extent to which the requirements of the rules are met, and where they are not met, the reasons for that, are relevant to the overall assessment.

Standing back, we are satisfied that the Judge erred in her assessment of whether the decision to refuse permission to enter was disproportionate and thus unlawful under section 6 of the Human Rights Act 1998. Therefore, we consider that decision of the Judge must be set aside.