R v. Immigration Appeal Tribunal, Ex parte Tohur Ali

R v IMMIGRATION APPEAL TRIBUNAL ex parte TOHUR ALI

Queen's Bench Division

[1987] Imm AR 189, [1987] Fam Law 311

Hearing Date: 19 December 1986

19 December 1986

Index Terms:

Adoption -- admission of children -- whether the rules allow for the admission of adoptive children where there has been no legally recognisable adoption process in the applicant's home country. Adoption Act 1926 ss 4, 72(2); Immigration Act 1971 ss 2, 3(5), 5(4), 33: British Nationality Act 1981 s 11(1): Adoption (Designation of Overseas Adoptions) Order 1973 (SI 19 of 1973): HC 169 para 50(f).

Jurisdiction -- obligation of the appellate authorities to consider all relevant rules. Immigration Act 1971 ss 19, 20.

Held:

The applicant was a citizen of Bangladesh, born in 1969. He was related to a Bangladeshi family settled in the United Kingdom. His mother disappeared: then his father died. Before his father died a member of the family settled in the United Kingdom had promised to look after the child and claimed then to have done so; other relatives in Bangladesh had taken care of two other children. There had not been any legal adoption of the applicant by the family nor could there be under Islamic law. The applicant was refused entry clearance to join the family in the United Kingdom. On appeal, the adjudicator found that there had not been a de facto adoption, rather the child had been fostered by the family. On appeal to the Tribunal those findings of fact were upheld. The Tribunal also followed its earlier decisions in holding that for there to be an 'adoptive parent' within the meaning of the immigration rules, there must have been a legal adoption of the child. On application for judicial review, it was submitted that the narrow interpretation adopted by the Tribunal was incorrect. It was further argued that even if the Tribunal concluded that the sponsor was not an 'adoptive parent', it should have gone on to consider whether on the facts the sponsor was a 'relation other than a parent' within paragraph 50(f) of HC 169. Held: 1. The word 'adoptive' in paragraph 50 of HC 169 does not connote any 'legally recognisable adoptive process'. Even without any adoptive 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: ex parte Narinder Kaur approved. 2. There was evidence that the applicant was related to the sponsor. Neither the adjudicator nor the Tribunal was asked by either party to consider the case as falling under HC 169 paragraph 50(f). Nevertheless, in discharging its obligations under s 19(1) of the Act, the Tribunal had a duty to consider the matter and erred in law in not doing so.

Cases referred to in the Judgment:

Mathieu v Entry Clearance Officer, Bridgetown [1979-80] Imm AR 157. R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214. R v Immigratio Appeal Tribunal ex parte Alexander [1982] Imm AR 50. R v Secretary of State for the Home Department ex parte Narinder Kaur (unreported, QBD, 23 July 1984). Tohur Ali v Entry Clearance Officer, Dhaka [1985] Imm AR 33. Manjit Singh (unreported) (2297). Sunah Bi (unreported) (3132).

Counsel:

A Riza for the applicant; R Jay for the respondent PANEL: Hodgson J

HODGSON J:

The applicant seeks judicial review of a decision of the Immigration Appeal Tribunal given on 2 April 1985. By its decision the Tribunal dismissed an appeal by the applicant from the decision of an adjudicator given on 10 September 1984, when he dismissed an appeal from the decision of an entry clearance officer refusing the applicant's applicationfor entry clearance to settle in the United Kingdom as the dependent adopted son of the sponsor, Hushar Ulla. That decision was given on 29 August 1983. The case raises two issues of some general importance. The immigration rule upon which the application for entry clearance was based is rule 50 of HC 169. So far as relevant it reads:

". . . children under 18, provided that they are unmarried, are to be admitted for settlement:

(f)if one parent or a relative other than a parent is settled . . . in the United Kingdom and there are serious and compelling family or other considerations which make exclusion undesirable for example, where the other parent is physically or mentally incapable of looking after the child -- and suitable arrangements have been made for the child's care.

In this paragraph 'parent' . . . 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 to facilitate the child's admission."

The applicant was born in Bangladesh on 2 February 1969. The entry certificate officer expressed some doubt as to the accuracy of this, but the point was not pursued before the adjudicator. The sponsor was born on 18 March 1955. The appellant and the sponsor are related; the sponsor's father was the nephew of the applicant's real father. Evidence as to this fact was given both to the entry certificate officer and the adjudicator. In 1970 the sponsor arrived with his parents for settlement in the United Kingdom. The sponsor gave evidence to the adjudicator that the applicant's mother, who had been begging from door to door, had disappeared. On 2 October 1975 the sponsor returned to Bangladesh for the first time. The applicant was then living with his real father. He told the adjudicator what happened:

"We found Tohur's father had become a beggar from door to door . . . as they (the father and Tohur) were very poor we were occasionally helping them with money and rice. After a few days his father became too old and weaker and weaker -- after about 2 or 3 months he became too old and weaker and weaker -- after about 2 or 3 months he became unable to beg and he had no income. My mother frequently went to their house to nurse the old man and took his 3 children into our house -- I used to go with my mother as well. Tohur's father was dying and much worried about his children and used to talk about them to my mother. We used to tell him we would be coming round but whatever happened we will help you. When he was too ill and dying he wanted assurance from all the relatives that his 3 children would be taken by 3 relatives to bring up. I gave it serious thought and reached the conclusion I would take the boy and bring him up, realising that if it goes wrong the blame will be on my shoulders as well."

He then told how the other two children were taken by other relatives. He concluded:

"We went to the house with food and 3 days after the death the children were taken."

Although under cross-examination the sponsor modified the seriousness with which he had undertaken the responsibility for the applicant, the adjudicator accepted that there was a genuine transaction. In her Determination and Reasons she said this:

"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 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 fostering of a child rather than an adoption de facto by the sponsor."

That last conclusion was the one upon which she based her decision. She did not, however, attempt to distinguish between "de facto adoption" and "fostering" or define either relationship. She was referred to Tribunal decision Sunah Bi (1984) TH/108424/83 and, upon the authority of that case, reached her conclusion:

"In view of that decision I cannot accept Mrs Lal's submission for the reason that the lex loci does not recognise adoption. In any event the facts before me do not on the balance of probabilities show a de facto adoption by this sponsor but a situation more akin to fostering of this boy by a family unit."

The Tribunal was referred to the judgment of Woolf J, as he then was, in R v Secretary of State for the Home Department ex parte Narinder Kaur (unreported) (1984) CO/906/83, as well as Sunah Bi. The Tribunal concluded:

"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 made 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."

But, like the adjudicator, the Tribunal made no attempt to define what was meant by "de facto adoption." The first question I have to ask is whether the Tribunal directed itself properly in following the Tribunal decision in Sunah Bi. Sunah Bi was decided by a Tribunal in 1983. It is not reported, but I have been provided with a transcript. The relevant passage from the decision appears in the adjudicator's determination at p 4 of the bundle:

"While it is unclear to what extent English law will require a foreign adoption recognised by or indeed an order made in the domicile of all the parties, it is clear that without any legally recognisable adoptive process there is no basis for recognising such an 'adoption'. Further, to base considerations of entry to the United Kingdom on a de facto adoption seems to us to pose an almost insuperable task for entry clearance officers. A de facto equivalent of the legal concept of 'adoption' is difficult to envisage when the legal concept by definition confers rights and duties which the 'de facto' situation would not.

We do not see the Immigration Rules as based on the maintenance of a 'family unit' de facto but as normally requiring a family relationship according to the personal law of the parties."

I do not understand the first half of the first sentence, but the second half clearly states the ratio decidendi of the decision. The question therefore is whether the use of the adjective "adoptive" in rule 50 connotes a relationship resulting from a "legally recognisable adoptive process." I propose to approach this task of construction first by looking at the rules themselves bearing in mind the words of Lord Roskill in Alexander v Immigration Appeal Tribunal [1982] 2 All ER 766 at 770:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed."

I also bear in mind the fact that in Islamic law there is no "legally recognisable adoption process": verse xxxiii 37 of the Koran abolishes the pre-Islamic custom of adoption, under which an adopted child had the legal status of the adopter's own child" -- see A History of Islamic Law by NJ Coulson, p 13 (NJ Coulson, A history of Islamic law, Edinburgh, 1964, 1978.). According to Mr Coulson, this law "was designed to settle the controversy which arose from the marriage of The Prophet to the divorced wife of his adopted son Zayd." If, therefore, the Sunah Bi construction is correct, a huge number of would-be immigrants would be excluded from the provisions in rule 50 relating to adoption. The word "adopt" in its ordinary meaning does not connote any legal process. The primary meaning in the Shorter Oxford Dictionary is "To take voluntarily into any relationship especially that of a son." And Webster has this "To take by choice into a relationship, as child, heir, friend, citizen, etc; esp, to take voluntarily (a child of other parents) to be in the place of, or as, one's own child." In his grudging bestowal of his daughter upon Othello, Brabantio said "I had rather to adopt a child then get it." Indeed, until 1926, there was no legally recognisable adoptive process known to English law. The reasons which led to the Adoption Act 1926 appear from Professor Bromley's Family Law (1981) 6th ed at p 335:

"In common parlance the term 'adoption' is frequently used in a sense much wider than its strict legal one. If a child's parents die or abandon it and it is brought up by someone else, the latter is often said to have adopted the child, particularly if he is a stranger in blood. This relationship is described as foster parenthood in this book, and its legal results will be discussed later. One of the disadvantages of mere de facto control is that, since the relationship is one which is strictly not recognised by the law at all, the legal position of the person assuming control is precarious. One of the gravest threats is that the child's parents or legally appointed guardians may try at any time to assert their legal powers, and although their claim may well be defeated on the grounds that it will not be in the interests of the child to be torn away from those who have brought it up, the latter may nevertheless live in real fear of losing the child. When the relevant sections of the Children Act come into force, it will be possible for people in this position to have themselves appointed custodians of the child and thus give some legal authority to the situation. But their relationship to the child in cases such as these often resembles that of parent rather than custodian, and there were no means either at common law or in equity of creating a legal relationship in any way equivalent to that of parent and legitimate child. The view taken by English law that a parent's rights over his child were inalienable meant that it could recognise no change of status comparable to the adoption or adrogatio of Roman law. Consequently, spouses who were probably childless and anxious to bring up another's child as their own hesitated to do so, and the child was in turn deprived of the opportunity of a normal home life and remained in the orphanage or some other institution.

The result was a demand for reform which led eventually to the passing of the Adoption of Children Act in 1926. The provisions of this Act were revolutionary for, subject to certain limitations, it permitted anyone wishing to bring up somebody else's child as his own to apply for an adoption order from a court of competent jurisdiction, the effect of which, if it was granted, was to break entirely the legal relationship between the child and its natural parents and to vest the parental rights and duties relating to it in the adopters. The result, in brief, is that the adopters for all legal purposes step into the shoes of the child's natural parents; by its 'parents' in other words are now meant not its natural parents but its adoptive parents.

The relationship between the parties is thus distinguishable from that of parent and legitimate child, parent and illegitimate child, and guardian (or custodian) and ward. It resembles most closely the first, for, although there need be no blood relationship between the parties, the legal consequences are almost the same. It differs most markedly from the second for the law still does not always give effect to the natural rights and duties which the blood relationship creates: adoption in fact creates virtually the converse situation. It resembles the third in that the adoptive parents, like guardians and custodians, stand in loco parentis to the child to whom they are not necessarily related in blood, but differs from it in that the relationship of guardian (or custodian) and ward does not make the latter a member of the former's family for the purposes, for example, of the devolution and acquisition of property."

In its natural meaning, therefore, and in the context of rule 50 itself, which deals with the children of parents, step-parents, parents of illegitimate children end relatives other than parents and is concerned with child dependency, I would construe "adoptive" in its wide sense. I would not limit it to cases where there has been some "legally recognisable adoptive process." At first sight the provisions of the 1971 Act itself provide strong support for this view of the rule. S 3(5) provides for the deportation of persons. So far as relevant, it reads:

"A person . . . shall be liable to deportation . . . (c) if another person to whose family he belongs is or has been ordered to be deported."

S 5(4), so far as relevant, provides:

"For purposes of deportation the following shall be those who are regarded as belonging to another person's family (a) where that other person is a man, his wife and his or her children . . . and (b) where that other person is a woman her children; and for purposes of this sub-section an adopted child, whether legally adopted or not, may be treated as the child of the adopter and, if legally adopted, shall be regarded as the child only of the

The Act therefore clearly distinguishes between legally adopted children and children not legally adopted. I have been referred to no decision as to whether the "adopted" child of a Muslim parent would properly be included in this rule. However when one looks at the definition of "legally adopted" the matter becomes less clear. S 33 provides that "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 . . . under S 4 Adoption Act 1968".

(S 72(2) of Adoption Act 1976 which includes the new rule making power has not yet come into effect).

Other than in s 3(5) the phrase "legally adopted" is found in the 1971 Act in s 2 before it was amended by the British Nationality Act 1981. Its provisions are still effective, however, because s 11(1) of the 1981 Act provides, so far as relevant:

"a person who immediately before commencment . . . (b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen.

S2 of the 1971 Act dealt with right of abode. S 2(1) provides:

"2. Statement of right of abode, and related amendments as to citizenship by registration.

(I)A person is under this Act to have the right of abode in the United Kingdom if:-

(a)he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(b)he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either:-

(i)then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or

(ii)had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or

(c)he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more; or

(d)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 Islands.'

It will be seen that, save in the case of someone who has citizenship by adoption, the requirement is that there should be legal adoption as defined in s 33. An order has been made under s 4 of the Adoption Act 1968. It is the Adotpion (Designation of Overseas Adoptions) Order 1973 SI 19 of 1973. It specifies "overseas adoptions" as "an adoption effected in the place in relation to which this Article applies and under the law in force in that place." In a schedule to the Act the countries included are set out. It does not include all the countries which have a legally recognisable adoption procedure. Therefore, the phrase in s 5(4) of the 1971 Act "whether legally adopted or not" does not conclusively show that there can be adoptions which are not made by a legally recognisable process. However, the provisions of s 5(4) itself, seem to me to indicate that the Act recognises, for the purpsoe of s 5(4) adotions which are not the result of any legally recognisable process. The clue is, I think, provided by the phrase "if legally adopted shall be regarded as the child only of the adopter" (my emphasis). The sub-section seems to me to draw a clear distinction between those adoptions which extinguish the rights of the natural parents and those adoptions which do not. It was, of course, precisely the lack of certainty in the latter type which led to the adoption legislation of 1926. I cannot believe that a construction of this section would be acceptable which deprived the Secretary of State of his power to deport the infant adopted son of a Muslim whom he had decided to deport because there had been no legally recognisable process of adoption. I turn next to consider what authority there is on this question. Prior to the decision of the Appeal Tribunal in Sunah Bi, there had been a line of Tribunal decisions which had held that there must have been a "valid legal adoption" for someone to become an adoptive parent. In Sunah Bi the Tribunal cited three such decisions, which, in a careful judgment, the Tribunal followed. The Tribunal cited a passage from Manjit Singh unreported:

"The sponsor must prove first of all that he is an 'adoptive parent'. To do so he must establish that he has adopted the child in accordance with the law governing his or her adoption. He must have the capacity under that law to adopt the child. There must have been a valid legal adoption. De facto control of a child arising only from an agreement between the natural parents and those assuming control is not adoption in the strict sense since the legal relationship between the child and its natural parents has not been broken and replaced by a similar relationship between the child and those assuming control. The natural parents in such a case may still assert their rights. Those assuming control over the child are foster parents and not 'adoptive parents'."

In that passage, perhaps for the first time, the contrast is drawn between adoption and fostering. I have already cited the passage from the judgment in Sunah Bi where there is mentioned the additional policy consideration that entry clearance officers would have "an almost insuperable task". The Tribunal also rejected the argument based upon s 5(4).

"Further, we do not find any inconsistency with the Tribunal's approach and s 5(4) of the Immigration Act 1971 bearing in mind that the phrase 'legally adopted' has a precisely defined meaning for the Act. So there is nothing in section s 5(4) to indicate that the word 'adopted' means anything otherwise than an adoption recognised as such by English law."

That, with respect, must be wrong. The Tribunal cited the previous Tribunal case in Mathieu where the adoption was under the law of St Lucia, a country not included in the 1973 Order and therefore not recognised by English law. Nor did the Tribunal apply its mind to the problem raised by a Muslim adoption, to which I have referred earlier. In R v Secretary of State for the Home Department ex parte Narinder Kaur (1984) unreported, CO/906/83, the question in issue was whether the applicant was an illegal entrant. She had come to this country at the age of 15 and had gained entry by falsely pretending that she was the natural daughter of parents settled in the United Kingdom when, in fact, her true relationship was that the wife was her paternal aunt. The applicant contended that she "was entitled to entry clearance none the less because a de facto adoption had taken place before she obtained entry clearance and Ram Singh and Charan Kaur were at the material times, her adoptive parents". The issue whether they were her adoptive parents was therefore clearly before the court. In his judgment, Woolf J as he then was, said this:

"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 -- 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.

Rule 43 in such a situation provides that children under the age of 18 are to be admitted for settlement if both parents are settled in the United Kingdom or if one parent is settled in the United Kingdom and the other is, on the same occasion, admitted for settlement. The position here was that Mr Ram Singh was settled in the United Kingdom but his wife was not. The rule goes on to say that a parent includes the step-father of a child whose father is dead; the step-mother of a child whose mother is dead and the father as well as the mother of an illegitimate child. It also includes an adoptive parent but only where there has been a genuine transfer of parental responsibility on the ground of the lawful parents' inability to care for the child and the adoption is not one of convenience arranged to facilitate the child's admission. If the entry clearance officer had been informed that the applicant was an adoptive child, then, quite apart from looking at the matter of convenience, he would have had to be satisfied that there was an inability in her parents to care for the child. There was nothing in the papers before me to suggest that it would not have been possible for the applicant to have satisfied that requirement."

However, Woolf J then went on to consider whether there had been deception and, in the end and with reluctance, upheld the decision to remove the applicant. It is therefore true that the passage which I have cited was strictly obiter. But it was given after what was clearly careful consideration both by counsel and the judge. Narinder Kaur was not cited to the adjudicator but it was cited to the Tribunal. The Tribunal dealt with Woolf J's judgment in this way:

"We have to consider whether, in view of Woolf J's judgment, these earlier cases were wrongly decided.

The case of Narinder Kaur was an application for judicial review by a woman who 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 has been no legal form of adoptive 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."

I find the attempt to distinguish between "legal form of adoption procedure" and "legally recognisable adoptive process" somewhat extraordinary. Looking at the rule itself, taking into account the provisions of the Act and paying much more regard to what Woolf J said in Narinder Kaur than the Tribunal saw fit to do, I have come to the conclusion that the word "adoptive" in the rule does not connote any "legally recognisable adoptive process." I do not think that this will add substantially to the difficulties, already great, of entry certificate officers in considering applications under the dependency provisions in rules 46-53. I turn now to consider what the criteria are by which the question whether there has been an adoption when there has been no "legally recognisable adoptive process" must be judged. I do not agree that the distinction drawn between adoption and fostering is necessarily helpful. It seems to me that what distinguishes adoption from fostering is that an adoption is intended to be a permanent assumption by the adopter of all parental duties towards the adopted person. It was the threat to this permanency which the existence of a child's natural parents constituted that led to the adoption legislation in 1926. In considering whether there has been an adoption under rule 50 it is this question of permanency which, in my judgment, should be the primary concern of the inquiry. The second issue raised in this application arises in this way. Rule 50, in addition to giving a right to be admitted for settlement to an adoptive child also provides, (subject of course to all the other requirements being fulfilled) that a child is to be admitted for settlement "if . . . a relative other than a parent is settled . . . etc." There was evidence before the adjudicator and the Tribunal that the applicant was a relative of the sponsor. Neither the adjudicator nor the Tribunal was asked to consider the application under this part of the rule. Despite this omission, it is submitted by Mr Riza that the Tribunal ought to have considered the case under this part of the rule, and that failure to look at a possibly applicable rule is an error in law. S 19(1) of the Act provides (so far as applicable) that:

"an adjudicator on an appeal to him (a) shall allow the appeal if he considers (1) that the decision against which the appeal is brought was not in accordance . . . with any immigration rules applicable to the case."

In R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214 it was held that:

"The immigration appellate authorities were required to look at the whole of any relevant rule to see whether the circumstances of a particular case appeared to comply with it; if some part of it had not been specifically referred to in the Notice of Reasons for refusal that did not remove that duty or right from the adjudicator or Tribunal."

In his judgment Glidewell J as he then was, said this (at p219):

"Mr Nathan asks what is the point of requiring that the statement shall include reasons except, in effect, to act as a sort of pleading and to tie the Home Office to those reasons thereafter? If that is not the case, then, says Mr Nathan, there is really no point in a short statement of reasons if thereafter, when the matter goes to appeal, the argument can range over other matters as well.

On the other hand, Mr Collins referred me to s 19(1) of the Immigration Act 1971 which deals with determination of appeals by the adjudicators and which, so far as is material, provides:

'Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.'

Section 20(1) provides:

'. . . the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator.'

Mr Collins says that since both the Tribunal and the adjudicator are to consider whether the decision is not in accordance with any immigration rules applicable to the case, they are not merely entitled but actually obliged to look at all the immigration rules to decide which is relevant, and to look at the whole of any relevant rule. In this case, that is para 21. The adjudicator and the Tribunal were both perfectly entitled to look at matters and to consider and make decisions upon matters which were within para 21 but not within the notice of refusal originally issued.

In my judgment that is correct. I take the view that both the adjudicator and the Appeal Tribunal are required to look at the whole of any relevant rule to see whether or not the circumstances of a particular case appear to comply with it. If some part of it has not been specifically referred to in the immigration officer's notice of reasons that does not remove that duty or right from the adjudicator or the Tribunal."

It seems to me that that is plainly right. Accordingly, in my judgment the Tribunal ought to have considered the application of rule 50 in respect of a "relation other than a parent" if they were satisfied that the sponsor was not an "adoptive parent". In this also the Tribunal erred in law. It follows that, when the Tribunal reconsiders this matter in the light of my judgment, if they conclude that, on the facts, the applicant does not satisfy the "adoptive parent" criteria, it must go on to consider whether the applicant can succeed on the "relative" criteria.

DISPOSITION:

Application granted

SOLICITORS:

Manchester Law Centre, Treasury Solicitor
 

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.