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Discretionary and Mandatory Refusal Grounds _ Cases  

De facto adoption under the immigration rules

Mohamoud (Paras 352D and 309A - de facto adoption) Ethiopia [2011] UKUT 378 (IAC) (27 September 2011)

This case was heard at the Upper Tribunal at Field House. The case considered paragraph 252D of the Immigration Rules and the adoptive children of refugees.

Facts of the case

The appellant, Master Mohamoud, applied for entry clearance with Mr. Wadour in order to join the sponsor Maryan in the UK. The sponsor was recognised as a refugee in the UK on 6th September 2007. Mr. Wadour applied for entry clearance as the sponsor’s husband and Master Mohamoud applied for entry clearance as the child or adoptive child or nephew of the sponsor. The applications were refused by the entry clearance post overseas in March 2010 and the appellants appealed against the decision. At the Tribunal, the Immigration Judge allowed the appeals under paragraph 352A of the Immigration Rules for Mr. Wadour and under paragraph 352D and on Article 8 for Master Mohamoud. Permission to challenge the decision was sought by the respondents in the case of Master Mohamoud (but not Mr. Wadour).

The issue before the Upper Tribunal

The sole issue at hand was that, in allowing Master Mohamoud’s appeal under paragraph 352D, the Immigration Judge had materially erred. The question of whether the appellant was qualified under paragraph 352D as a ‘child’ of the sponsor was raised.

The appellant’s representatives argued that the appellant was “at the very least a de facto child of the family” and that his appeal should be successful under article 8 of the ECHR. The Tribunal set out the relevant provisions under the Immigration Rules (paras 309A, 352D) and the definition of ‘parent’ which is

"adoption" unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of paragraph 309A of these Rules, and "adopted" and "adoptive parent" should be construed accordingly.”

The paragraph continues to state what is included in the definition of ‘parent’. Paragraph 352D provides that:

“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant:

(i) is the child of a parent who has been granted asylum in the United Kingdom;”

The appellant’s representatives argued that he had been adopted by the sponsor from the time when he had lost his parents in the civil war and the sponsor. The sponsor maintains that she looked after the appellant since he was a baby.

The appellant’s representatives argued that, if it is accepted that the appellant was de facto adopted by the sponsor than Mr. Wadour would be considered his stepfather. Therefore, the care provided by Mr. Wadour should be taken into account in order to determine whether paragraph 309A(a) and (b) are satisfied.

Relevant Legal Framework and Conclusion

The Upper Tribunal referred to the Court of Appeal case of MK (Somalia) & Ors v Entry Clearance Officer [2008] EWCA Civ 1453. In that judgment it was stated that:

“In the present case (and, I accept, many others), this test of de facto adoption is not satisfied because it requires that both adoptive parents have spent at least 18 months living with the child immediately prior to the child's application for entry clearance, whereas in an asylum case at least one of the parental figures will usually be in the United Kingdom, having successfully sought asylum.”

The Tribunal concluded this was consistent with the approach in the case of SK (“adoption” not recognised in UK) India [2006] UKAIT 00068and MN (Non-recognised adoptions: unlawful discrimination?) India [2007] UKAIT 00015. 

Paragraph 352D makes it clear that it is necessary to show that the appellant is “the child of a parent who has been granted asylum in the United Kingdom”. As the sponsor has refugee status, it must be shown that the appellant is her child in order to succeed under this paragraph. The next issue was to deal with the definition of ‘parent’. The Tribunal stated that paragraph 6 sets out 5 different ways in which a person can be defined as a parent.

The Tribunal held that the definition of ‘parent’ represents an exhaustive list of the ways in which someone can be regarded as a parent. It was also held that the meaning of ‘de facto adoption’ also applied to paragraph 352D even if it did not specifically say so. The Tribunal held that

“Given that “de facto adoption” has been given a specific and restrictive meaning for the purposes of paragraphs 310 to 316C, it would be very odd if this existed side-by-side with a less demanding meaning for other purposes under the Immigration Rules. If it were possible for a different genus of “de facto adoption” to satisfy the requirements of paragraph 352D, this would mean that refugees would be able to circumvent the protection afforded to children by paragraph 309A but non-refugees would not.”

The Tribunal concluded that the appellant was not the de facto adopted son of the sponsor and that the First Tribunal had materially erred in law.

It was held that “For the purposes of paragraph 352D of the Immigration Rules, an adopted child can include a de facto adoption under paragraph 309A but a parent who is a refugee will normally not be able to meet the residence and care requirements of paragraph 309A.”

The decision was set aside and a new decision dismissing the appeal was made.

September 2011

Mandatory grounds for refusal and material non disclosure

Ahmed (general grounds of refusal - material non disclosure) Pakistan [2011] UKUT 351 (IAC) (09 September 2011)

This case was heard on the 12th August 2011 at the Upper Tribunal. The case dealt primarily with the issue of non disclosure and mandatory refusals under the Immigration Rules. It was held ultimately that

“In order to have made false representations of submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised ‘Deception’, as define at para 6. Failing to disclose a material fact is also classed as ‘Deception’. It follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf.”

The facts of this case are as follows:

The appellant, a Pakistani national, arrived in the UK on 3rd September 2009 having obtained entry clearance as a student until 31st December 2010. In August 2010, the appellant travelled the first time by rail thinking he had sufficient funds on his Oyster card. On his journey, a ticket inspector advised him that his Oyster card was not in fact, valid on national rail. The appellant’s details were taken and he was asked to appear before a Magistrates Court where he was fined a total of £134.50. The appellant subsequently made an in time application for an extension of leave to remain. He did not reveal this criminal conviction on the application form as he argued, he had not realised it was in fact, a criminal conviction. The Immigration Judge did accept that the appellant did not realise it was a criminal conviction.

The appellant received a decision in February 2011 refusing his application on the basis of paragraph 245ZX(a) of HC 395 which stipulates that “the applicant must not fall for refusal under the general grounds for refusal’. The appellant had otherwise, satisfied the requirements for further leave to remain. However, he was refused under the general grounds namely paragraph 322(1A) which is a mandatory ground on which variation of leave to remain is to be refused and which includes:

“where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relations to the application”.

The Secretary of State for the Home Department (herein after referred to as the SSHD) refused the application by simply citing that deception had been used. It does not cite any of the wording of the rules above.

The appellant appealed against the decision and the case came before Immigration judge Talbot at the First Tier Tribunal. The judge was presented with the case of FW (Paragraph 322; untruthful answer) Kenya [2010] UKUT 165 (IAC). In this case it was held that

“Where a direct question is asked, and answered untruthfully, there is both a false representation and a non-disclosure; and it is not open to an Appellant who gives an untruthful answer to a direct question in an application form to sat that the matter was not material”.

The judges in this case argued that it did not matter whether the maker of the false representations had made an honest mistake however, this view was corrected in the subsequent case of AA (Nigeria) [2010] EWCA Civ 773 where it was held that “dishonesty or deception is needed, albeit not necessarily that of the applicant himself, to render a ‘false representation’ a ground for mandatory refusal.” 

In this case, Judge Talbot found that the appellant had not been dishonest bearing in mind the case of AA. He concluded that the appellant has not made a ‘false representation’ in the required sense. The judge then turned to the material non disclosure issue and held that the appellant’s criminal conviction was material to the application. He then went on to dismiss the appeal without considering the appellant’s state of mind and whether this was relevant to this issue.

The appellant sought permission to appeal to the Upper Tribunal which was granted.

Conclusion of the Upper Tribunal

The Judge held that dishonesty is required for all aspects of paragraph 322(1A). In the case of AA the judge declined to say anything about the material non0-disclosure aspect however, the Upper Tribunal held that dishonesty required for false representations equally applied to the interpretation of non disclosure. In this case, Judge Talbot had found that the appellant had not been dishonest and it was an error of law to suppose that this finding was irrelevant to the question of whether there had been non-disclosure of a material fact. The Upper Tribunal set aside the First Tier Tribunal’s decision and allowed the appeal under the Immigration Rules. 

TR(CCOL cases) Pakistan [2011] UKUT 33 (IAC) (26 January 2011)

This was an Upper Tribunal case heard on 5th November 2010 at Field House.  The appellant (the SSHD) had refused the claimant’s application for variation of leave to remain. The claimant had successfully completed a postgraduate diploma in Business Management at Cambridge College of Learning (CCOL) between September 2007 and August 2008. This was not the first appeal to deal with CCOL. Reference was made to the case of NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 in which it was stated that CCOL never ran a postgraduate diploma in Business Management or IT COURSE and therefore, relying on such a course to apply for leave to remain under Tier 1 post study work would amount to false representations and fall foul of paragraph 322 (1A) of the Statement of Changes in Immigration Rules HC 395. Notwithstanding this case, there were numerous further appeals made on the same basis including the present case.

In the claimant’s case, the Immigration Judge had allowed his appeal against which the SSHD appealed on the basis that the Judge did not take account of the case of NA and Others. The claimant’s appeal was heard on 6th August 2009 whilst the decision of NA and Others was reported on 11th August 2009 (five days after the hearing but one day before the determination was signed).

The claimant’s representative argued that the Immigration Judge had not erred in law in that the decision of NA was not a High court decision or starred Tribunal decision neither was it a Country guidance decision. The Immigration judge should take into consideration the evidence as it is presented on the day of the hearing. Further, the representative argued that it was not incumbent on the Immigration Judge to treat the findings of fact in NA as binding and that the Judge considered the case on its own merits.

The Tribunal in this case concluded that there had been an error of law regardless of whether the Judge considered the case of NA. The SSHD had provided significant evidence (including evidence of the Higher Executive Officer at UKBA and the evidence of teachers at CCOL) which had not been properly considered.  The Tribunal states that the Judge’s treatment of the evidence was ‘decidedly uncareful’.

The Tribunal discussed the case of AA (Nigeria) [2009] EWCA Civ 733 which approved the view in the case of NA in that it accepted for deception to arise; false representations must have been made knowingly. It also disagreed that paragraph 322 could cover ‘innocent’ representations. The Tribunal also made reference to the case of Pankina [2010] EWCA Civ 719 in that it was wrong to consider the UKBA guidance manual as mandatory or binding. The mandatory requirements are set out in the relevant Immigration Rules.

Conclusions

The Tribunal concluded as follows:

1.      Just because a decision is not binding does not mean that an Immigration Judge is free not to take account of its findings

2.      Where the SSHD allege that a claimant falls foul of paragraph 322(1A) of the Statement of Changes in the Immigration Rules HC 395, then the case of AA (Nigeria) should be considered

 

3.      Given the extent of overwhelming evidence found in the case of NA to show that no such course (as above) was ever ran at CCOL, an application made on this basis should be closely scrutinized.

 

January 2011

 

PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) (28 September 2010)

This case concerned paragraph 320 of the immigration rules and its application. The appellant is an Indian national who entered the UK illegally in 2000 and claimed asylum His asylum claim was refused. The appellant later met his future spouse, a British Citizen. The appellant returned to India in September 2008 having left the UK voluntarily. His intention was to return to the UK by applying for the relevant spousal visa. His intention therefore, was to regularize his stay in the UK by the appropriate means.   However, the entry clearance officer refused his application for entry under paragraph 281 of the Immigration Rules and paragraph 320 (11) of HC395.

The appellants spouse is living with her cousin in a double room and she is working earning a salary of £840 per month. She receives free food and accommodation.

The appellant appealed against the entry clearance officer’s refusal. The Immigration Judge accepted that paragraph 281 (iv) and (v) had been satisfied. However, he upheld the decision of the entry clearance officer exercise of discretion under paragraph 320 (11).  The appellant appealed further however, the senior immigration judge refused to grant reconsideration. An error of law was found by the High Court and reconsideration was ordered. The appeal came before the Upper Tribunal.

The Upper Tribunal considered rule 320 (11) which provides that entry should be refused:

“where the applicant previously contrived in a significant way to frustrate the intention of the rules.”

Examples are given of those who have used deception, been an illegal entrant or breached a condition attached to their leave in an application for entry clearance or leave to remain. The guidance provides that refusal may be given on a discretionary basis where the applicant has been in breach of immigration conditions or where there are aggravating circumstances. It then goes on to state what those circumstances are such as absconding, sham marriages, not complying with reporting restrictions etc..

The guidance continues to state that all cases must be considered on their own merits taking into account family life and the breach in question. The entry clearance officer must consider whether refusal under 320 (11) is appropriate.

Reference was also made to paragraph 320 (7B) which required an automatic ban of 12 months if the person left the UK voluntarily. Paragraph 320 (7C) was later introduced (in June 2008) disapplying paragraph 320 (7B) where the application involved a spouse, unmarried or same sex partner under paragraph 281 or 295(a) of the Immigration Rules.

In the appellant’s case the entry clearance officer had simply refused his application on the basis that he had entered the UK clandestinely and applied for leave to remain indefinitely which was refused. He had therefore, significantly sought to frustrate the immigration rules. The first Tribunal accepted this argument when dismissing the appellant’s appeal.

The Upper Tribunal held that the entry clearance officer made no reference to the guidance and no proper explanation as to how the appellant’s breach of immigration law was sufficiently aggravating so as to justify refusal. The Upper Tribunal held that the entry clearance officer should have recognized that the appellant left the UK voluntarily over 12 months prior to making his application.   The marriage was accepted to be genuine and the entry clearance officer had not carried out an adequate balancing exercise under the guidelines.

The Upper Tribunal found that there had been a material error of law and the decision was set aside and a new decision made allowing the appeal.

 

 

SD (paragraph 320(11): forgery) India [2010] UKUT 276 (IAC) (10 August 2010)
 
KB (para: 320(7A): "false representations") Albania [2009] UKAIT 00043 (14 October 2009)
 

 

 

 
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