Tohur Ali v. Entry Clearance Officer, Dacca

TOHUR ALI v ENTRY CLEARANCE OFFICER, DACCA

Immigration Appeal Tribunal

[1985] Imm AR 33

Hearing Date: 14 March 1985

14 March 1985

Index Terms:

Entry clearance -- application for admission of adopted son -- whether de facto adoption satisfies requirements of the immigration rules -- whether where there had been no 'legally recognisable adoptive process' there could be a de facto adoption to satisfy the immigration rules -- case of Narinder Kaur distinguished. HC 169 paragraph 50.

Held:

The facts are set out in the determination. Held: 1) that where under the lex loci there is no legally recognisable adoptive process there cannot be de facto adoption that would satisfy the requirements of the immigration rules. 2) On the facts in any event, in the present case no de facto adoption took place.

Cases referred to in the Judgment:

unah Bi (unreported) (3132). R v Secretary of State for the Home Department ex parte Narinder Kaur (QBD 23 July 1984) unreported.

Counsel:

Mrs S Lal for the appellant; Mr T Harris for the respondent. PANEL: DL Neve Esq (President), GW Farmer Esq, Professor DC Jackson (Vice-President)

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Bangladesh. He applied to the entry clearance officer in Dacca for entry clearance to enable him to come to this country for settlement with a Mr Hushar Ullah. He said that he was Hushar Ullah's adopted son. His application was refused. He appealed to an adjudicator against the refusal. His appeal was heard by Mrs AC Davies and was dismissed on 10 September last. Against Mrs Davies' determination he now appeals to the Tribunal. The immigration rule relevant to the appellant's application was paragraph 50 of HC 169 which governs the admission of children to this country. The extent to which the paragaph applies to adopted children is governed by the last sentence of this paragraph which reads: "It also includes an adoptive parent, but only where 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 grounds upon which the entry clearance officer refused the appellant's application are shown in the Notice of Refusal as follows:

"You have applied for an entry clearance to settle in the United Kingdom as the adopted son of Hushar Ullah but I am not satisfied that there has been a genuine transfer of parental responsibility based on your parents' inability to care for you nor that your adoption is not one of convenience arranged to facilitate your entry to the United Kingdom. Furthermore, there is no provision for adoption in Bangladesh or Muslim law."

This refusal came after the entry clearance officer had interviewed the appellant and Latif Ullah, the father of the sponsor Hushar Ullah. The entry clearance officer also referred to the papers relating to an entry clearance application which had been made by Hushar Ullah's wife, Parveen, when she had been interviewed and when Latif Ullah's wife, Azizun Nessa, had also been interviewed. Txhe entry clearance officer refused the application for eight reasons which are enumerated in his explanatory statement as follows: "i) There is no provision for adoption in either Bangladesh or Mohammedan law and therefore the applicant, whatever else was true, was not the legally adopted son of the sponsor. ii) There were variations between the various accounts of what had happened to the applicant's parents. Latif Ullah nd Tohur himself said that his mother had simply disappeared whilst out begging, but in 1980 the sponsor's wife had said that Tohur's mother had died of old age. iii) There was a discrepancy over when the sponsor had assumed his responsibility for the applicant. On the other hand Tohur said that his Mother had disappeared some three years before his father died, but on the other, Parveen said that Tohur's parents had both died within a few days of each other. iv) At the time that the alleged adoption was said to have taken place, the sponsor was single and only 20 years of age, in my opinion an unlikely candidate for an adoptive father. v) The applicant claimed that he had no paternal or maternal uncles or aunts. As a general rule Sylheti families are large because of the combination of lack of family planning and the need to have children to ensure one's survival in later years. Although by no means impossible, it struck me as unusual that the applicant should have no uncles or aunts. vi) On Parveen's application form in 1979 the applicant's date of birth had been given as 15 January 1969. His passport gave it as 2 February 1969, which was the same date as that given on the birth certificate, but I noted that in his letter of 27 July 1983, Mr Geoff Phillpotts of the Oldham Council of Racial Equality had said that the sponsor had spoken to him and had specifically asked him to write to us and to explain that there was no birth certificate because Tohur had been adopted. Where had the certificate come from, and how was it that it purported to have been registered some 17 months before Mr Phillpotts' letter? vii) In view of points ii) to vi) above, I was not satisfied as to the applicant's identity, or that his real parents no longer existed. viii) The applicant had said that Parveen had looked after him until she had gone to the United Kingdom, but in 1980 Azizun Nessa had said that she was taking care of the applicant. There seemed some doubt as to who actually looked after him and I had to bear in mind that he had two married sisters who were in Bangladesh. No documentary evidence of sums remitted to assist with Tohur's upbringing had been forthcoming and I was not satisfied that the sponsor was wholly responsible for his maintenance." At the appeal before the adjudicator she heard evidence from Hushar Ullah, from his wife, Parveen, and from his mother Azizun Nessa. The adjudicator found the facts to be as follows: "I propose firstly to deal with the facts. The sponsor born in March 1955, came to the United Kingdom with his parents and siblings in 1970. He is the eldest son of his father. He told me that he returned to Bangladesh in 1975 with his parents for a visit when they found the appellant's father ill and the whereabouts of his mother unknown. His parents cared for the appellant's father and in the company of his mother the sponsor was in the habit of visiting the father who was distantly related to the sponsor's family. The father, when dying and being distressed for the future of his children, extracted a promise from the sponsor that the latter would look after the appellant and on the death of the father the appellant was taken into the sponsor's family home. At the time the sponsor says he regarded it as a bit of a joke since he himself was only 20 years of age, was about to marry and regarded himself as being too young to become a father. It seems to have been a spur of the moment decision, probably taken to console a man about to die. The appellant was thus taken into the sponsor's family home which in fact the sponsor's father's home and he was looked after by the sponsor and his parents. Since the sponsor's father was the head of that household and that the sponsor was a young single man who in a somewhat lighthearted way brought the boy into that household it is more probable that the responsibility for the appellant was a joint family one rather than the responsibility of the sponsor and more akin to the fostwering of a child rather than an adoption de facto by the sponsor. I have seen little evidence that the sponsor assumed financial responsibility for this boy prior to the application, save for a single receipt of @50 spent on 4 December 1981. The sponsor says that money was sent to the sponsor's parents as the boy was too young to handle money himself. I have no evidence that the sponsor in fact assumed responsibility for his upbringing and have received differing accounts as to why this boy was not included in the sponsor's wife's application in 1979. I note that the wife had said that the family were unable to afford to take him with them and she has now changed her story to agree with the sponsor's version that to include him would have meant deferring consideration of her own application. The sponsor's mother, on the other hand, tells me that she insisted he was left behind as she would have become lonely had he gone to the United Kingdom with the wife. Although, she says that she treats the boy as her grandson and not her son, when I asked her what it meant to adopt a child she said:

"There was nobody to look after this child and my spon brought him to our house and my husband and I agreed he should be looked after."

The evidence suggests that the care of the appellant in their family household has been akin to fostering rather than to a de facto adoption." She found that there had not been a de facto adoption, and even if there had been, that this was not sufficient to entitle the appellant to entry clearance. In so finding she followed the determination of the Tribunal in the case of Sunah Bi (3132). She consequently dismissed the appeal. At the appeal before us Mrs Lal referred us to the case of Narinder Kaur heard by the Divisional Court on 23 July last. The judgment of Woolf J in that case contains the following passage:

"There is no doubt that under the immigration rules which were in force at the relevant time, there is provision for adoptive children to obtain settlement in this country, and it is conceded -- and in my view rightly -- by Mr Moses on behalf of the Home Secretary that even though there has been no legal form of adoption procedure, it is possible for a parent to adopt a child and for that child to be treated as the adoptive child of the parents."

Mrs Lal said that she relied upon this passage -- what was important was whether there had been a genuine transfer of parental responsibility. She referred us to various aspects of the evidence which she submitted did not support the adjudicator's finding that the care of the appellant by the family of the sponsor had been akin to fostering rather than to adoption. Mr Harris asked us to re-affirm the Tribunal's finding in the case of Sunah Bi. He submitted that the remarks of Woolf J in the case of Narinder Kaur had been made obiter and there was no provision in the rules for the admission of de facto adopted children. He pointed out that HC 169 provided for the case of de facto wives (paragraph 49 provides for the admission of a woman who has been living in permanent association with a man as if she were his wife) but there was no such rule relating to de facto children. Mr Harris also referred us to aspects of the evidence and submitted that the adjudicator's finding that there had not been a de facto adoption was fully supported by the evidence before her. We have carefully considered the submissions made to us and the evidence in this case, afforded by the entry clearance officer's explanatory statement and the adjudicator's record of proceedings. First, with regard to the question of de facto adoption. This question has been considered by the Tribunal in a number of cases, culminating in the appeal of Sunah Bi (3132 -- 16 February 1984) in which the point was fully argued and considered. In that case the Tribunal maintained their previous decisions that a de facto adoption was not sufficient to render a child admissible to join his "adoptive" parents. Their reasons for coming to this conclusion are fully set out in their determination and we need not repeat them here. We now have to consider whether, in view of Woolf's J judgment, these earlier cases were wrongly decided. The case of Narinder Kaur was an application for judicial review by a woman whom the Secretary of State intended to remove as an illegal entrant. The question which the learned judge had to determine was, as he says, "Was she in fact guilty of the conduct required to make her an illegal entrant?" Thus it was not a case involving refusal of entry clearance, and the question of whether or not she would have been admissible as an adopted child, although one aspect for consideration, was not conclusive of the application. To this extent we consider that we are entitled to regard the passage cited as obiter dicta. We note that the learned judge records that Mr Moses conceded "that even though there had been no legal form of adoption procedure, it is possible for a parent to adopt a child and for that child to be treated as the adoptive child of the parents". With regard to this, two matters are apparent: first, the concession was made on behalf of the Secretary of State and not on behalf of this Tribunal (which was not a party to the proceedings). And second, Mr Moses' concession referred to cases in which "there had been no legal form of adoption procedure". It did not extend to cases in which (to quote the determination in the Sunah Bi case) there had been no "legally recognisable adoptive process". It might be that in some countries an adoption might be recognisable under the lex loci as legal despite the lack of any formal procedure. But in this case it was conceded that in Bangladesh adoption was not legally recognised. We therefore come to the conclusion that we can properly consider that we are not bound by the judgment in the case of Narinder Kaur -- a conclusion we reach with relief in view of the near-impossibility (referred to in Sunah Bi) of determining whether, in the context of extended families as is usual on the Indian sub-continent, there has in fact been a de facto adoption in any given case. Furthermore we consider that the adjudicator's finding of fact that what had happened did not amount in any event to a de facto adoption was adequately supported by the evidence before her. For both those reasons, therefore, this appeal is dismissed.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Manchester Law Centre.

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