Mathieu and Others v. Entry Clearance Officer, Bridgestown

MATHIEU AND OTHERS v ENTRY CLEARANCE OFFICER, BRIDGETOWN, TH/12426/77(1764)

Immigration Appeal Tribunal

[1979-80] Imm AR 157

Hearing Date: 6 May 1980

6 May 1980

Index Terms:

Adoption -- "Overseas adoption" -- Child of an "adoptive parent" under immigration rule for control on entry -- Adoption valid under law of country (St Lucia) where adoption order made -- Adoption not an "overseas adoption" under United Kingdom statutory law -- Child not "legally adopted" as defined in the Immigration Act 1971 -- Whether child's eligibility for settlement in the United Kingdom with "adoptive parent" under immigration rule precluded if adoption not designated an "overseas adoption" under English law -- Immigration Act 1971, s 33(1) -- Adoption Act 1968, ss 4(3), 11(1) -- Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No 19), Schedule Part I -- HC 79, para 43.

Held:

In order to qualify for admission to the United Kingdom for settlement as the child of an "adoptive parent" under para 43 of HC 79 it was not necessary that the child be "legally adopted" as defined in s 33(1) of the Immigration Act 1971, namely that the adoption be "specified as an 'overseas adoption' by order of the Secretary of State under s 4(3) of the Adoption Act 1968" n1. Thus it would not be an impediment to the admission of the child appellants in the present case that the country, St Lucia, under whose law they were adopted by their sponsor was not amongst the countries specified by the Secretary of State in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973, made under s 4(3) of the 1968 Act. n1 Section 4(3) of the Adoption Act 1968 is in the following terms: "In this Act 'overseas adoption' means an adoption of such a description as the Secretary of State may by order specify, being a description of adoptions of infants appearing to him to be effected under the law of any country outside Great Britain, and an order under this subsection may contain provision as to the manner in which evidence of an overseas adoption may be given." The Tribunal so held in the determination reported below, but dismissed on the facts the appeals of the three children because their adoption in St Lucia by the sponsor, their "adoptive parent" under para 43 of HC 79, was (as found on the facts by the entry clearance officer and confirmed by the adjudicator) "one of convenience arranged to facilitate their admission" to the United Kingdom, and therefore did not comply with the requirements of para 43. Per curiam: The definition of the expression "legally adopted" in s 33(1) of the Immigration Act 1971 was irrelevant to the construction or application of para 43 of HC 79, for that expression did not occur in that rule for entry; instead, the expression "adoptive parent" was largely defined in that rule n2, and in the Tribunal's judgment it would not be permissible to import a further restriction by reference to the definition of a different expression in the Immigration Act. [1979-80] Imm AR 157 n2 The relevant part of para 43 is set out in the determination, on p 159, post.

Counsel:

A. McGeachy of the United Kingdom Immigrants Advisory Service, for the appellants. D. Massey for the respondent. PANEL: A. Hooton Esq (Vice-President), J. H. Bowman Esq, A. S. W. Newman Esq

Judgment One:

THE TRIBUNAL: The appellants Michael, Lucia and Raymond Mathieu appeal to the Tribunal against the determination of an adjudicator (Mr I. M. S. Donnell) dismissing their appeals against the refusal by the respondent on 28 January 1975 to grant them entry clearances to come to the United Kingdom for settlement as the adopted children of Mr and Mrs Mathieu. At the time of the refusal they were citizens of the United Kingdom, Associated States and Colonies, (St Lucia). Mr and Mrs Mathieu were also at the date of the refusal citizens of the United Kingdom, Associated States and Colonies (St Lucia) but living in and settled in the United Kingdom. Mr Mathieu had been ordinarily resident here ever since 1961. He claims to be the natural father of all three appellants. Michael and Lucia were both born in 1957, but of different mothers. Lucia's mother gave birth to Raymond two years later in 1959. When Mr Mathieu came to this country the three children remained in St Lucia where they lived with their mothers. In 1974 Mr Mathieu paid a visit to St Lucia and whilst there, on 7 February 1974, obtained orders from the High Court of Justice of St Lucia under which he and his wife adopted all three children. On 25 March 1975 the ECO received the appellants' applications for entry clearances. The ECO considered the applications under para 43 of HC 79. He was however very unhappy about the adoption orders. Although Mr Mathieu claimed to be the natural father of Michael, so did a Mr Joseph whom Michael's mother had married and she confirmed that Mr Joseph was Michael's father. The boy had been brought up in their household -- nobody else had ever had effective care of him. Moreover the ECO noted that Mr and Mrs Joseph's marriage certificate contained a statement that by their marriage Michael was legitimated. So the records showed that Michael was the legitimate child of Mr and Mrs. Joseph. Now the Adoption Ordinance 1954 of St Lucia contains a provision that an adoption order shall not be made without the consent of the parents. Mr and Mrs Joseph had not consented to the adoption of Michael by Mr and Mrs Mathieu, yet an adoption order in their favour had been made. How did this happen? The ECO took the matter up with the authorities in St Lucia and eventually the Attorney-General was asked to take the matter up. He did not do so. Thus, as the adjudicator says in his determination, this matter remains unresolved, and Michael's name remains on the Adopted Children Register of St Lucia. In any event, in the opinion of the respondent, there had been no genuine transfer of parental responsibility to Mr Mathieu for any period whatsoever. [1979-80] Imm AR 157 Although the paternity of the other children does not appear to have been in issue, the ECO decided as follows (in the words of para 10 of this explanatory statement): "Since there has never been any genuine transfer of parental responsibility in either case for any period whatsoever, I cannot be satisfied that the intention of this adoption was genuine, made in good faith, and not entered into with a view to facilitating the children's admission to the United Kingdom. Under paragraph 43(a) of HC 79 children under the age of 18 qualify for admission for settlement if both parents are settled in the United Kingdom. The definition of "parent", is extended to include:

"an adoptive parent, but only were there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child, and the adoption is not one of convenience arranged to facilitate the child's admission."

The ECO therefore refused the applications -- even if the adoption orders were valid in St Lucia, Mr and Mrs Mathieu were not "parents" for the purposes of para 43(a). At the appeal to the adjudicator Mr Mathieu gave evidence. He had come to the United Kingdom in 1961 and only returned to St Lucia in 1974 when he adopted the appellants, all of whom he asserted were his children. He adopted them because he was their father, their mothers being unable to look after them. After the adoptions he took them all away from their mothers and passed them over to his sister, who had since then looked after them. He had maintained them ever since he came to this country, but he was not getting any tax relief for the children. In the course of a thorough and fully reasoned determination Mr Donnell found that the adoptions were gone through purely in order to secure the appellants' entry into the United Kingdom. He set out his reasons for this finding in his determination as follows:

"Mr Mathieu arrived in St Lucia after some 13 years' absence, and expressed the intention of adopting the second and third appellants, who were then living with their mother. No complaint was made about the appellants' conditions. The first mention of these came with the notice of appeal. Mr Mathieu's evidence on the point was extremely brief. He stated that the mother of the first appellant was married to another person, so he could not stay with her. But this is manifestly incorrect, since this appellant had lived most of his life with the couple. Mr Mathieu said that the mother of the other two appellants could not maintain them, but it appears that it was Mr Mathieu who had maintained them. In any event responsibility was not transferred to Mr Mathieu but to his sister. In these circumstances it would appear these adoptions were gone through purely in order to secure the appellants' entry to the United Kingdom."

In the course of his determination, the adjudicator rejected submissions made on behalf of the appellants that the adoptions were "overseas adoptions" within the meaning of s 4(3) of the Adoption Act 1968 n3 and that the appellants had a right of abode in the United Kingdom by virtue of s 2(1)(b) of the Immigration Act 1971. [1979-80] Imm AR 157 n3 Section 4(3) is set out in footnote 1. In arguing the appeal to the Tribunal Mr McGeachy did not argue that the children were exempt from immigration control under s 2 of the Immigration Act 1971. He submitted, however, that the adoption orders were valid in St Lucia (Mr Massey accepted this proposition) and further that they were valid and recognised in this country as legal adoptions, being "overseas adoptions" by virtue of s 4(3) of the Adoption Act 1968 (Mr Massey disputed this further proposition). Mr McGeachy contended that the adoption orders, made by the High Court of St Lucia, were of themselves evidence of "a genuine transfer of parental responsibility" to Mr and Mrs Mathieu, this evidence being strengthened by the recognition of the adoptions under British legislation. He submitted that the reason for the adoptions was the inability of the natural mothers to care for the children. They were not adoptions "of convenience" and the appellants qualified to join their adoptive parents in this country. The Tribunal does not accept Mr McGeachy's argument that the adoptions of the appellants in St Lucia are "overseas adoptions" under the Adoption Act 1968. St Lucia is not specified in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973 made under s 4(3) of the Act, and the Tribunal agrees with the adjudicator's opinion that, since that order was made, adoptions in St Lucia are not, on a straightforward reading of s 11(1) "overseas adoptions". n4 n4 Section 11(1) of the Adoption Act 1968 (the interpretation section) defines the words 'specified country' as meaning, for the purposes of any provision of the Act, "any of the following countries, that is to say, Northern Ireland, any of the Channel Islands, the Isle of Man and a colony, being a country designated for the purposes of that provision by order of the Secretary of State or, if no country is so designated, any of those countries". St Lucia is not included amongst the 39 "Commonwealth Countries and United Kingdom Dependent Territories" specified in Part I of the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No 19), though amongst them are included such small territories as Pitcairn, St Vincent and Tonga (to name only three). At this juncture it is convenient to consider a submission made by Mr Massey in the course of his address as to para 43 of HC 89. He suggests that a parent can only be an "adoptive parent" under that paragraph if the applicant has been "legally adopted" as defined in s 33(1) of the Immigration Act 1971, which reads: "'legally adopted' means adopted in pursuance of an order made by any court in the United Kingdom and Islands or by any adoption specified as an overseas adoption by order of the Secretary of State under section 4 of the Adoption Act 1968." n5 n5 A consolidating Adoption Act was passed in 1976 (Cap 36), but it has not yet (October 1980) come into operation, and reliable information suggests that it will not be operative for several years. Mr Massey argues that as the appellants were not adopted by an overseas adoption, they were not "legally adopted" under this definition. So far we agree with him. We however cannot accept that this definition is relevant to the construction or application of para 43 of HC 79. The expression "legally [1979-80] Imm AR 157 adopted" does not occur in that paragraph. The expression used is "adoptive parent", and the rule goes on to prescribe conditions for acceptance of this relationship. Put another way, the expression "adoptive parent" is largely defined in the rule itself and it would not, in the judgment of the Tribunal, be permissible to import a further restriction by reference to the definition of a different expression which does not occur in the rule. In the opinion of the Tribunal a person can be an "adoptive parent" for the purposes of para 43 even if the adoption process does not amount to an "overseas adoption". We do not therefore accept Mr Massey's submission on this point. The appeal thus narrows down to the question whether there was sufficient evidence to support the adjudicator's finding of fact that the adoptions were adoptions "of convenience arranged to facilitate" the appellants' admission to this country. Only in exceptional circumstances will the Tribunal upset a finding of fact made by an adjudicator, particularly where he has had the advantage of hearing and observing the demeanour of important witnesses. In the present instance there was, in the opinion of the Tribunal, overwhelming evidence to support the adjudicator's conclusion; indeed we are of the view that no reasonable adjudicator could, on the evidence, have reached a different conclusion.

DISPOSITION:

Appeals dismissed.