Patel v. Visa Officer, Bombay

PATEL v VISA OFFICER, BOMBAY

IMMIGRATION APPEAL TRIBUNAL

[1990] Imm AR 297

Hearing Date: 21 February 1990

21 February 1990

Index Terms:

Adoption -- deed of adoption in India -- whether an adoption recognised by English law -- whether an "overseas adoption" -- whether recognised by English common law -- whether parents domiciled in country of adoption -- whether there had been a "de facto" adoption -- whether there was a claim to admission under s 1(5) of the 1971 Act -- whether there were serious and compelling reasons for the admission of the child within the immigration rules -- whether the rules allowed for the admission of a child for the purposes of adoption. Immigration Act 1971 s 1(5): Adoption Act 1976 ss 38(1)(d), 72(2): HC 169 paras 50(a), 50(f).

Held:

The appellant was a citizen of India, a minor. She was adopted in India by her aunt and uncle, resident in the United Kingdom. Application was made in Bombay for entry clerance, for her to join her adoptive parents. The application was refused and an appeal before an adjudicator dismissed. Before the Tribunal her case was put on a variety of different bases. It was argued that the deed of adoption in India should be recognised or, alternatively the adoption was valid under the common law. Either basis would have grounded an application under subparagraph 50(a) of HC 169 provided the over-riding requirement of a genuine transfer of parental responsibility on the ground of the natural parents' inability to care for the child were satisfied. Alternatively it was argued that there were serious and compelling reasons for the child's admission, within sub-paragraph 50(f) of HC 169. Counsel also argued that the applicant had a claim for admission under s 1(5) of the 1971 Act. Finally the child should be admitted for the purpose of adoption. Held: 1. India was not a country designated under the Adoption Act 1976: the deed of adoption was not accordingly recognised pursuant to the statutory provisions of that Act. 2. Following re Valentine's Settlement, the adoptive parents not being domiciled in the country of adoption, the adoption was not recognised by the common law. 3. On the facts, there had been no "de facto" adoption. 4. On the facts, there was no serious or compelling family reasons making the exclusion of the child undesirable: accordingly the application failed under subparagraph 50(f) of HC 169. 5. Following Ruhul, no argument, in the circumstances could be put before the appellate authorities, relying on rules in force before the 1971 Act came into force. 6. The appellate authorities had no jurisdiction to consider an appeal against a refusal of entry clearance for the purpose of adoption: that was not an application within the rules and required the immigration authorities to depart from the rules.

Cases referred to in the Judgment:

Re Valentine's Settlement [1965] Ch 831: [1965] 2 All ER 226. Immigration Appeal Tribunal v Haque, Rahman, Ruhul [1987] Imm AR 587. Immigration Appeal Tribunal v Tohur Ali [1988] Imm AR 237.

Counsel:

V Kothari for the appellant; A Cunningham for the respondent. PANEL: Professor DC Jackson (Vice-President), BJS Edmonds Esq, AK Khandwala Esq JP

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of India, appeals against a decision of an adjudicator (Mr JB Forge) dismissing her appeal against the refusal of entry clearance to join Mr Jayantkumar Chaturbhai Patel and his wife, Mrs Hansaben Patel, in this country, as adoptive parents or as the niece of Mrs Patel. The notice of refusal reads: "You have applied to enter the United Kingdom for adoption by Mr and Mrs JC Patel but there is no provision for your admission on this basis under the Immigration Rules. Furthermore, consideration has been given to your application on the basis that you are Mr and Mrs Patel's niece but the Secretary of State is not satisfied that there are serious and compelling family or other considerations which make your exclusion undesirable". It is common ground that by the date of decision (ie 15 April 1987) the appellant, the natural parents and the adoptive parents had gone through a ceremony of adoption. There is before us, as there was before the adjudicator, a deed of adoption dated 23 January 1987. The nature of the application The application could be construed: i. for the admission of an adopted child under HC 169 paragraph 50(a) on the basis either (a) a legal adoption (b) a de facto adoption; ii admission as the niece of Mrs Patel -- in which case the appellant must show (a) that there are serious and compelling family or other considerations which make exclusion undesirable and (b) that suitable arrangements had been made for the appellant's care (HC 169 paragraph 50(f)); iii. for admission for the purpose of adoption. Insofar as the claim is based on adoption (ie (i) above if it is established that the adoption would be recognised in English law, consideration must be given as to whether the appellant can rely on section 1(5) of the Immigration Act 1971 and if so, whether the provisions under the Commonwealth Immigrants Acts 1962 and 1968 are more beneficial to her than the immigration rules otherwise applicable. The background facts Both Mr and Mrs Patel, the sponsors, are Hindus. They were married in India in 1971 and Mrs Patel joined Mr Patel in this country in that year. Both are now British citizens. For some years Mr and Mrs Patel have tried to have a family but Mrs Patel suffered from four miscarriages and a premature still-birth. At a time around 1985 or 1986 they decided that the risk of further pregnancy was too great and began discussions with Jesmaben's parents about the possibility of adopting her. If they adopted, they wished to adopt a child of relatives who was a Hindu. Jesmaben, the appellant, is the daughter of Mr Ashwinkumar Patel and Mrs Kailashben Patel. Mrs Kailsashben Patel is the sister of the co-sponsor, Mrs Hansaben Patel. Jesmaben was born on 25 October 1982, being the second child of her natural parents. In 1983 Mrs Patel, the sponsor, went to India and stayed with Jesmaben and her family. She stayed from 18 September to November 1983, and apparently Mr Patel, the other co-sponsor, stayed for a shorter period. The next visit was in 1987. Mrs Patel, the sponsor, went to India on 13 January 1987, staying until 7 April 1987. She said in an affidavit dated 2 June 1989 that she intended to go again to India on 5 June 1989 for a stay of 2 months. A "deed of adoption of a daughter" was executed on 23 January 1987 and is before us. It is declared by this deed that Jesmaben was on that day handed over by her natural father to the sponsors. It is recorded that the intention was that Jesmaben "shall be from that time onward and has actually become the daughter" of her adoptive father. The deed records in its final paragraph that: "That the adoption hereby recorded is irrevocable and from the moment of its completion as aforesaid the said JESMA has become the adopted daughter of the said SHRI JAYANTKUMAR and SMT HANSABEN and is living with them as their daughter". The question of adoption appears to have been discussed first in 1986. The natural parents were agreeable. Mr Patel, the sponsor, told the adjudicator that Jesmaben's mother was not in good health, having had back problems. A medical certificate dated 11 June 1988 states that in her pregnancy Jesmaben's mother suffered from bronchitis and bronchial asthma and sciatica on the leg and backache. She continued to suffer from backache due to arthritis and from bronchial asthma. These disabilities, it is said in the certificate, made it physically difficult for her to look after Jesmaben. At the interview in connection with this application Jesmaben's mother said that she had a slipped disc. She however agreed that it was not a disability which compelled her to give up her child. Jesmaben's mother said "My sister has no children" and, it is recorded, agreed that the adoption was "to help my sister". Jesmaben's father agreed. Both said they were happy about the arrangement. Jesmaben's father said that he was employed as a technician with the Indian Petrochemical Company. He said that Jesmaben knew that the sponsors would be her parents and that she would be separated from him and his wife. In answer to the adjudicator the sponsor said that Jesmaben knew that she had been adopted and referred to him and his wife as mother and father. The sponsor said that they wished to adopt as they had no child and to help Mrs Patel's sister. Her sister had pains in the back and leg after Jesmaben's birth. There was before the adjudicator and is before us, a comprehensive "Home Study Report" in respect of the sponsors by Mr B Gibbs, an experienced social worker. That report concluded that no conclusive recommendation could be made as Mr Gibbs was not in a position to interview either the child or her natural parents. Mr Gibbs said of Mr and Mrs Patel, the sponsors: ". . . I have no doubt that Mr and Mrs JC Patel are sincere and genuine in their wish to offer themselves as loving and caring substitute parents to Jesmaben. They also believe that this would be in the best interests of Jesmaben's parents, who are agreeable to the proposal, and of Jesmaben herself. They would not wish to offer themselves as prospective adopters of any other child. I think that they are being a little naive in not recognising possible difficulties arising out of identity problems on the child's behalf, or out of the inevitable clash of cultures which would be involved, but I do not say that these would necessarily be insurmountable. Mr and Mrs Patel are a warm, kind and friendly couple. They impress as being honest, straightforward and mature. I am sure that in general they would be caring, concerned and commited parents." The adjudicator said that he was satisfied that the sponsors were unable to have children and "I am also satisfied that they are an excellent couple who are eminently suitable as adoptive parents for the appellant". The adjudicator summarised the circumstances: "The appellant's situation is this, her mother has a good deal of sympathy for her sister's inability to have children and as soon as she had her second child she and her husband agreed that the sponsors should adopt the child and take her to live with them in this country, and an adoption within the Indian Law took place on the 23 January 1987 when the appellant was about four and a half years of age; since that time the appellant has continued to live with her parents." The adjudicator recorded that although Jesmaben's mother suffered from some health problems, the evidence was that she and Jesmaben's father was able to look after Jesmaben and her brother. The adjudicator re-iterated his recognition of the attempts to have children by the sponsors and of the sponsors' wish "fervently to have the appellant in their home in this country and to adopt her as their own child to compensate for not having children of their own". However, he concluded first, that the adoption was not recognised as a legal adoption in the United Kingdom, and secondly in respect of the application as Mrs Patel's niece, that the required serious and compelling family or other considerations had not been established. There is before us an affidavit sworn subsequent to the adjudicator's decision by Mr Ellis Meyer, an expert in Hindu law. Mr Meyer states that adoption is permitted by section 12 of the Hindu Adoptions and Maintenance Act 1956. In paragraph 6 of his affidavit, Mr Meyer sets out the effect of an adoption: "6. Section 12 of the Act provides that an adopted child shall be deemed to be the child of her adoptive father or mother for all purposes with effect from the date of the adoption and from that date all the ties of the child in the family of her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The adoption therefore irrevocably transfers all rights of maintenance and inheritance which the child has in the family of her birth to corresponding rights in her adoptive family. The adopted child is not any longer entitled to any maintenance from or share in the estate of her natural family and the obligation to maintain her and her right to succession is thenceforth confined only to her adoptive parents and their estate. Under Section 15 of the Act a valid adoption cannot be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth". Subsequent to leave for appeal being granted by the Tribunal, the Home Office produced a supplementary explanatory statement dealing with the claim based on adoption as distinct from admission for the purpose of adoption. In the explanatory statement the claim was rejected, it being maintained that the act of adoption was not recognised in English law and that there had been no de facto adoption. The grounds for reaching the latter conclusion were that: i. the sponsors had not in fact taken over all responsibilities for the appellant, including those of a day to day nature to the exclusion of the natural parents; ii. the appellant had not been living with the sponsors as an integral part of the family for a substantial period of time. The Secretary of State was therefore not satisfied that a genuine transfer of parental authority had taken place and therefore that a de facto adoption had occurred. Claim based on adoption Has there been an adoption of Jesmaben to create a foundation for the claim To be recognised the adoption must be through a legal act recognised by English law or for the purposes of the immigration rules a de facto adoption. a A "legal adoption" A foreign act of adoption is recognised in English law on one of two grounds; a an "overseas adoption" under statute; and b under common law (a ground omitted from the supplementary explanatory statement). a An "overseas adoption" It is common ground that this adoption deed does not constitute an "overseas adoption" which would provide statutory recognition of it. Such an adoption is one in a country designated by the Secretary of State under the Adoption Act 1976 and India is not such a country. b Common law It would seem that the common law rule of recognition of adoptions is not entirely settled. However, it is settled that the law which governs the validity of the adoption is that of the domicile of the parties, the uncertainty going to whether an adoption valid according to the domicile of some of the parties but not according to the domicile of others would be recognised. However in re Valentine's Settlement [1965] 2 All ER 226 the Court of Appeal by a majority held that an adoption order of a court of a foreign country would not be recognised in English law unless the adopting parents were domiciled in the country of the court making the order. The basis of this principle is that adoption creates a status and status is governed by the law of the domicile. It may be that a second requirement would be that the child was ordinarily resident in the foreign country in which the order was made. It does not seem that recognition is restricted to orders made by a court. In this case, however, the element which defeats Mr and Mrs Patel, the sponsors, is that at the date of the adoption, they were clearly domiciled in England and had been for some considerable time. Mr Kothari (somewhat bravely and perhaps faintly) argued that Mrs Patel could have an independent domicile and that that domicile was India. We have to say that in our view in this case, the contention that at any material date Mrs Patel was domiciled in any state other than England is quite unarguable. We conclude therefore that no reliance can be placed in the deed of adoption as creating the status of adoption under English law. c A de facto adoption In Tohur Ali [1988] Imm AR 237 the Court of Appeal by a majority held that a "de facto" adoption could be the basis of admission of an adopted child under the immigration rules. Of the three members of the court, only Woolf LJ adverted to the criteria which might be applied to decide if there has been an adoption de facto. Woolf LJ said (at page 254): " . . . A child would only be regarded as the adopted child of adoptive parents if the adoptive parents have decided permanently to treat the child as their own and to accept all the responsibilities that this involves, and the child in turn regards himself as being the child of the adoptive parents and part of their family to the exclusion of his natural parents and any family they may have. It is to be remembered that the onus to establish the de facto adoption will be on those who allege that there is such an adoption. It will be a difficult onus to discharge in the absence of some legal formality or a long-standing relationship. Furthermore, in such cases the task of the immigration authorities and appellate bodies will be little different from that which in any event exists in the case of "legally" and otherwise lawfully adopted children. In such cases a decision has to be made as to whether 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". These are very much the same factual issues which have to be investigated in order to ascertain whether there has been a de facto adoption. Once more the absence of any legal formality will make it more difficult for sponsors to satisfy the adjudicating body that there has been a genuine transfer of parental responsibility and that the adoption is not merely a device to facilitate the child's admission into this country". We should not approach a judgment as it were a statute. However we respectfully agree with the underlying principle that the de facto adoption requires the establishment of a parent/child relationship in the adopting family in the place of the family of the natural parents. Such a change is most easily established through a long standing arrangement but as indicated by Woolf LJ, this is not exclusively so. Where as here there has been a ceremony, that ceremony if shown to reflect the genuineness of the arrangement may go far to establishing the relationship. In other words, an adoption de facto is the inferred creation of a recognised legal status by means other than recognised legal acts. To this extent, we disagree with the supplementary explanatory statement if it implies the need for day to day care or living with the sponsors as an integral part of their family as a necessary element to establish the relationship. The critical feature is a recognition of the relationship by the parents and (where appropriate) the child. Secondly, we agree with Woolf LJ that the requirements of the immigration rules overlap (at least to some extent) with those relevant to the creation of a de facto adoption. So the central feature of the de facto adoption is the genuine transfer of parental responsibility and whether the purpose is to facilitate the child's admission is in turn relevant to that issue. However, with respect, the requirement of the immigration rules that the transfer must be because of the inability of the natural parents to care for the child, does not seem to be a requirement of a de facto adoption. While its absence may go to genuineness, an adoption may be perfectly genuine without such an inability. In this case we are satisfied that from the point of view of the adopting parents (the sponsors), there was a genuine transfer of parental responsibility. The deed of adoption is clear, their intention was clear and their ability to care for the child clear. Ex hypothesi, they could not implement the arrangement by bringing the child to this country but the evidence as a whole (particularly the deed) shows a clear acceptance of parental responsibility. There is no suggestion that the deed did not reflect the intention of the natural parents. However, we have little evidence of how the decision was implemented in and by Jesmaben and her natural family. Although the adopting parents could not, in the circumstances, point to the physical bringing of Jesmaben into their family, the question remains as to how Jesmaben and her natural parents saw their relationship after the deed had been entered into. We do not underestimate the difficulties of assessing the family relationship between Jesmaben and her natural parents. Nevertheless, we do not have any evidence from any source save the adopting parents about Jesmaben's attitude. The natural parents had said in interview that Jesmaben did not understand about adoption. Her father had said that she had been told that she would go away from him and his wife. Her mother said simply that Jesmaben had been told that she would go and stay in the United Kingdom. We have, however, little idea of how this knowledge affected Jesmaben or the relationship between her parents and herself. We have not the advantage of the kind of objective independent assessment that was provided in relation to the sponsors by the Home Study report of Mr Gibbs. In our opinion, therefore the evidence falls short of establishing a de facto adoption from the point of view of the child and the natural parents. The deed is powerful evidence of the intentions of the natural and the adopting parents. Taken together with other evidence of the sponsors' intentions and acts, it satisfies us as to the transfer of parental responsibility from their point of view. However, bearing in mind that Jesmaben has remained with her natural parents, there is not sufficiently powerful evidence to support the deed in showing that as from that date, Jesmaben and her natural parents considered Jesmaben to be the daughter of the adopting parents for us to say that there was a de facto adoption. The operation of the immigration rules and section 1(5) of the Immigration Act 1971 Even if we are wrong as to the existence of a de facto adoption, Jesmaben cannot make a case under HC 169. The evidence is overwhelming that the moving force behind the adoption is the inability of the sponsors to have a child. It is not established that the natural parents were unable to care for Jesmaben -- Jesmaben's mother having health problems but not so as to prevent her from looking after the child. It follows that if there was a de facto adoption, the only route for the appellant is through section 1(5) of the 1971 Act. The argument runs that in respect of the child of a parent both of whom are Commonwealth citizens, the effect of section 1(5) is to preserve the statutory rights of entry conferred by the Commonwealth Immigrants Act 1962 and 1968. Under these statutes, a child under 16 had a right of entry and "child" included "adopted" child. It follows that there could be no pre-requisite for admission that the adoption was for the reason of the inability of the natural parents to care for the child. Mr Cunningham was content to argue that the issue was never reached -- there was no "adoption". Therefore Jesmaben could not be said to be the "child" of the adopting parents. We have so held and we make only a brief comment in respect of the effect of section 1(5). For Mr Kothari to succeed in establishing his case through the statutory provisions, he would have to show that "child" in section 1(5) and in the Commonwealth Immigrants Acts 1962 and 1968 includes a child adopted de facto. While the Court of Appeal in Tohur Ali thought the immigration rules included such a child, it is by no means certain that the benevolent construction there applied could or would be applied to the statutory provisions. This particularly applies, in our view, to the Commonwealth Immigrants Act in which the concept of adoption is not defined nor is any particular meaning of adoption taken. These statutes were enacted after the acceptance in this country of adoption as a legal status. They contain no provision as to the recognition of foreign adoptions and it seems to us strongly arguable that the normal rule of construction would apply so that at most, the relationship recognised in accordance with English law, including the conflict of law rules. As we have said, we are of the view that no case can be made under common law conflicts rules. We do not however need to decide the point, for we base our decision on the failure to establish a de facto adoption. Before leaving the topic of section 1(5) we should record that Mr Kothari also raised before us the question as to whether the appellant can rely on the Instructions to Immigration Officers in force prior to the Immigration Act 1971. In particular, Mr Kothari sought to rely on paragraph 38 of Cmnd 4298, a paragraph relecting the statutory provisions of the Commonweath Immigrants Acts. Mr Kothari accepted that such a point could not be argued before us in the light of the Court of Appeal decision in R v IAT ex parte Ruhul [1987] Imm AR 587. In that case, the Court of Appeal held that whatever be the effect of section 1(5), it could not resurrect rules or instructions which had been superseded. We undertook to Mr Kothari to record that he wished to reserve this argument so that it could possibly be raised at a higher level. Claim based on HC 169 paragraph 50(f) -- are there "serious and compelling" circumstances? The circumstances which could possibly support the appellant's case on this ground at first, the health of Mrs Patel, the natural mother, secondly the emotional attachment of the sponsors to Jesmaben and the effect on them of the non-implementation of the deed of adoption, given Mrs Patel's inability to have a child, thirdly the benefits to Jesmaben as a member of the sponsor's family and finally and perhaps centrally under Indian law, the legal (and irrevocable) status of Jesmaben as a member of the sponsor's family. As did the adjudicator, we accept that the respective parents genuinely intended the arrangement reflected in the deed of adoption. We further accept that if that arrangement is implemented, Jesmaben will have loving and caring parents -- although we stress there is no evidence that her natural parents do not also have these qualities. In addition, Jesmaben will in all probability be economically better off than she would if she remained with her natural parents. However, there must at least arguably be some doubt that the arrangement is in the best interest of Jesmaben. As we have said, there is no evidence that her natural parents are anything but as kind and loving as the sponsors or that her circumstances are anything but happy. The family is not large and there is no evidence that Jesmaben's natural father cannot support the family including both children. Both sets of parents frankly state that the prime motivation for the adoption was the provision of a child for Mrs Patel, the sponsor. There must be a question raised over the uprooting of a child of 4 or 5 years old from an environment in which her natural parents must play a large role to a wholly different environment to live with her aunt and uncle. This is particularly so, as Jesmaben has only seen her aunt and uncle for relatively short periods. We do not say -- any more than Mr Gibbs in his report said, that problems would necessarily arise -- only that this is not a case where the interests of the applicant lie clearly in coming to this country. Mr Kothari argued that there is no "identity" problems in a Hindu adoption because of the nature of the adoption within the family. We appreciate that in such circumstances, adoption may not reflect the concept of the clear and absolute break that it does in English law but we cannot believe that for a child to be plucked from its natural parents and placed with adoptive parents, the change is minimal. Further, it must be recalled that if admitted under paragraph 50(f) Jesmaben would not be admitted as the adopted child of Mr and Mrs Patel. Just as if she was admitted as the child adopted de facto, so Mr and Mrs Patel would have to obtain an adoption order for them to attain their objective in English law. As we have said, whether or not they would succeed, we do not know. Apart from the change in status, there is nothing in the factual circumstances presented to us that could justify a conclusion that the exclusion of Jesmaben was undesirable for serious and compelling circumstances. In considering the effect of the irrevocable change of status under Indian law, we must also consider the lack of such status under English law, particularly as England is the country in which the child is to live. For us to be satisfied that there were such circumstances as would found the claim for admission, we would require much more precise evidence that the circumstances in which Jesmaben was living in India were such that it was in her interests to come to this country. On the totality of the evidence we are of the view that any claim under HC 169 paragraph 50(f) fails. Admission for the purpose of adoption This is a basis of admission outside the rules. HC 169 paragraph 76 provides that a passenger who does not qualify for admission under the On-Entry rules is to be refused leave to enter. It follows that any application for admission outside the On-Entry rules is an application to depart from those rules. By virtue of section 19(2) of the Immigration Act 1971 a refusal to depart from the rules is not challengeable before the appellate authorities. Summary In sum, we find: i that the deed of adoption is not a legal act constituting a status of adoption recognised by English law; ii on the evidence, there is no de facto adoption; iii even if there was a de facto adoption, no claim would lie under HC 169 paragraph 50(a); iv it is doubtful whether the appellant could make a claim through section 1(5) of the Immigration Act 1971 under the Commonwealth Immigrants Acts 1962 and 1968; v on established authority no reliance can be placed by the appellant on the Instructions to Immigration Officers in force prior to the Immigration Act 1971 (in this case Cmnd 4298); vi it has not been established that there are serious and compelling family or other considerations which make the exclusion of the appellant undesirable and therefore, there is no claim to admission under HC 169 paragraph 50(f). vii there is no jurisdiction in the appellate authorities to consider a refusal of entry clearance for the purpose of adoption. The appeal is dismissed.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Leicester Rights Centre.