Tahid v. Secretary of State for the Home Department

TAHID v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (CIVIL DIVISION)

[1991] Imm AR 157

Hearing Date: 4 October 1990

4 October 1990

Index Terms:

Appeal -- right of appeal in United Kingdom -- appellant had claimed right of abode -- refused leave to enter -- before appeal heard by adjudicator, blood tests disproved claimed relationship to sponsor -- argued before adjudicator that appellant was an adopted son -- whether adjudicator had jurisdiction to hear appeal. Immigration Act 1971 (unamended) ss 2(1)(b), 2(1)(d), 19: HC 169 para 50.

Adoption -- "legally adopted" -- the meaning of the phrase in the 1971 Act. Immigration Act 1971 s 33(1): Adoption Act 1968 s 4: Adoption Act 1976 s 72(3), sch 3 para 17.

Held:

Appeal from Schiemann J who had dismissed an application for judicial review of a determination of the Tribunal upholding an adjudicator's determination that in the events which had happened, he had no jurisdiction to hear an appeal. The appellant had originally claimed he was the son of Abdul Rahman. His "father" had been registered as a British citizen in 1967 (before the birth of the appellant). In August 1984 the appellant had arrived in the United Kingdom and had asserted that he had a right of abode as a British citizen by descent. He was refused leave to enter, the immigration officer not being satisfied of the relationship as claimed. Nevertheless, following the Tribunal determination in Momotaz Begum (4280), he had a right of appeal while still in the United Kingdom. Before the appeal came before the adjudicator, DNA tests showed that the appellant was not the son of Abdul Rahman, although there might have been some more distant relationship. Solicitors for the appellant accordingly sought to argue the case before the adjudicator on the basis that the appellant was the adopted son of the sponsor. The adjudicator concluded that the appellant could no longer claim a right of abode: he could only secure leave to enter if he qualified under the relevant subsection of HC 169 paragraph 50. He had no right to mount an appeal on that basis while in the United Kingdom. He declined jurisdiction. On appeal the Tribunal upheld the adjudicator's approach. An application for judicial review was refused. On appeal, it was argued before the Court of Appeal that the adjudicator properly exercising his powers under section 19 of the 1971 Act, should have determined the appeal on its merits, on the amended basis on which it had been put before him. The court considered the definition of "legally adopted" in the 1971 Act. Held: 1. The phrase "legally adopted" in section 2(1)(d) of the 1971 Act was defined in section 33(1) of that Act by reference to section 72(2) and schedule 3 paragraph 17 of the Adoption Act 1976. 2. On the facts the appellant could not assert that he had been "legally adopted" within the meaning of the phrase as defined. 3. It followed that the appellant could not claim a right of abode as a British citizen by descent. 4. The only question before the adjudicator had been whether the appellant had sufficient status to appeal while remaining in the United Kingdom. In the events which had happened, the adjudicator was correct in concluding he had no jurisdiction to hear an appeal grounded on paragraph 50 of HC 169.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214. R v Secretary of State for the Home Department ex parte Abdul Tahid (unreported, QBD 5 March 1990).

Counsel:

F Slevin for the appellant; The respondent did not appear and was not represented. PANEL: Neill, Stocker, Staughton LJJ

Judgment One:

NEILL LJ: This is a renewed application by a boy called Abdul Tahid, who is now aged 14, for leave to apply for judicial review of the decision of an immigration officer dated 26 August 1986, the determination of an adjudicator dated 22 February 1989 and the decision of the Immigration Appeal Tribunal dated 26 October 1989. Leave is sought to seek orders for the quashing of those decisions, and in addition leave is sought to apply for mandamus ordering the Secretary of State to confirm that the applicant has the right of abode in the United Kingdom. The application is renewed following the refusal of leave by Schiemann J on 5 March 1990. The applicant was born in Sylhet, Bangladesh on 1 March 1976. He arrived at Luton Airport on 1 August 1986, then being ten years of age. He was accompanied by Mr Abdul Rahman and Mr Rahman's wife, Razia Begum, as well as by another child. As I understand it, Mr Abdul Rahman is a Commonwealth citizen. He was born in Sylhet at a time when that city was part of India. In 1962 he came from what was then East Pakistan to the United Kingdom and was registered as a British citizen in May 1967. On arrival on 1 August 1986 Mr Rahman claimed that the applicant was his son, but the immigration officer, after interviewing Mr Rahman and consulting some earlier files, was not satisfied; on 25 August 1986 leave to enter was refused. That is the first of the decisions which it is sought to quash. There was then an appeal to the adjudicator. It seems that unfortunately there was a substantial delay before that appeal came on, but in the meantime some blood tests were taken. From those it appeared that the applicant was not the biological son of Mr Rahman. When the matter came on before the adjudicator on 20 February 1989 the claim that the applicant was a biological son was abandoned. The case was then argued on the basis that the applicant was a British citizen by descent being the adopted son of Mr Rahman. At that stage reliance was placed on section 2(1)(b) of the Immigration Act 1971 before it was amended. Now reliance is sought to be put on section 2(1)(d) which provides that a person has the right of abode in the United Kingdom if he is "a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands". It is convenient for the purposes of this application to approach the matter on the basis that Mr Rahman had citizenship in the United Kingdom and would therefore be qualified under section 2(1)(d). The question that was considered by the adjudicator and subsequently by the Immigration Appeal Tribunal was whether the applicant had been legally adopted. At that time that depended upon the definition of "legally adopted" in section 33 of the Immigration Act 1971, which provides: "'Legally adopted' means adopted in pursuance of an order made by any court of 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." It was pointed out by counsel in the course of this hearing that the Adoption Act 1968 has now been repealed. However, as one would expect, there is a comparable provision in the Adoption Act 1976, which is the one to which we were referred, which provides in schedule 3 paragraph 17: "In section 33(1) of the Immigration Act 1971, in the definition of 'legally adopted', for the words 'section 4 of the Adoption Act 1968' there are substituted the words 'section 72(2) of the Adoption Act 1976.'" That takes one back to the definition contained in section 72(2), which is the interpretation section, of an "overseas adoption". It provides in that subsection: "'Overseas adoption' means an adoption of such a description as the Secretary of State may by order specify, being a description of adoptions of children appearing to him to be effected under the law of any country outside Great Britain; and an order under this subsection may contain provisions as to the manner in which evidence of an overseas adoption may be given." It seems to be quite clear that, in the result, it is impossible for the applicant in this case to show that he was legally adopted within the meaning of section 33(1) either if one has regard to the terms of the 1968 Adoption Act or if one has regard to the terms of the 1976 Adoption Act. The relevance of that is that, for the purpose of the appeal before the adjudicator, it was only if the applicant could show that he had a right of abode in the United Kingdom that he was entitled to bring his appeal to the adjudicator and thereafter to the Immigration Appeal Tribunal while still in this country. Having considered the matters which were argued before him, the adjudicator came to the conclusion as follows: "For all these reasons I found that having abandoned his claim to be the true child of the sponsor the appellant has also abandoned the only basis on which he could whilst in the UK appeal against the decision that he required leave to enter the United Kingdom." The adjudicator therefore concluded he had no jurisdiction to proceed. An appeal was brought with leave to the Immigration Appeal Tribunal. They upheld the decision of the adjudicator and decided that they considered that Mr Callender, the adjudicator, had been right to reach the conclusion that he had no jurisdiction to deal with the merits. The real basis of the application before us has been to the effect that, notwithstanding the definition of "legal adoption", the adjudicator should have gone on to consider the merits of the matter, to have had regard to the fact that there was some evidence that the applicant was related to Mr Abdul Rahman, as the DNA tests showed that there was more than a stranger's relationship between them by blood, and therefore should have considered whether it was a case where the discretion of the Secretary of State should have been exercised differently. Thus the application is on the basis that the adjudicator did not appreciate the extent of his powers and duties under the Immigration Act and in particular under section 19 of that Act. Similarly, it would be claimed that the Immigration Appeal Tribunal failed to exercise the powers they should have exercised under section 20 of the Immigration Act 1971. In support of that submission we were referred to a judgment of Glidewell J (as he then was) in Kwok On Tong [1981] Imm AR 214 in which it was said, on very different facts, that when appellate authorities hear appeals they are not restricted to considering only the reasons for refusal given by the immigration authority in a written statutory notice. For my part, I do not find any assistance in that case on the facts of this case. It seems to me that the only matter for the adjudicator to determine was whether or not the applicant had sufficient status to appeal while still remaining in this country on the basis that he had a right of abode here. It is not seriously in dispute that the applicant was bound to fail because he could not show that he had been legally adopted. We are told there is no system of legal adoption, as we understand it, in Bangladesh. That may be, but it was not suggested that there was any order of the Secretary of State on which reliance could be placed. In these circumstances, notwithstanding all that has been urged upon us, it seems to me that this application to apply for judicial review is bound to fail. I would therefore refuse it.

Judgment Two:

STOCKER LJ: I agree.

Judgment Three:

STAUGHTON LJ: I also agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Hafiz & Co

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