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Cite as: [2004] UKIAT 94, [2004] UKIAT 00094

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APPEAL No. MF (Immigration – adoption – genuine transfer of parental responsibility ) Philippines [2004] UKIAT 00094

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18 March 2004

Date Determination notified: 29 April 2004

Before

Mr C P Mather (Vice President)

Ms S S Ramsumair JP

Between

Entry Clearance Officer – Manila	APPELLANT
and
MF	RESPONDENT

For the appellant: Mr G Phillips, Home Office Presenting Officer.

For the respondent: Ms N Adesemowo, solicitor, Adesemowo solicitors

DETERMINATION AND REASONS

The appellant, with permission, appeals the determination of an Adjudicator (Mr D P Herbert) promulgated on 24 June 2003. The Adjudicator allowed the respondent's appeal from the appellant's decision to refuse entry clearance.

The respondent, making her third application for entry clearance, applied to the appellant on 20 August 2001 to join her adoptive parents in the United Kingdom. She was interviewed on 27 February 2002 and the application was refused.

Her history is somewhat complicated. The respondent was born on 7 November 1983. She is the fourth of six children born to her parents. There is evidence in the papers that adoption proceedings were underway in the Philippines by 1994. The intention, even before she was born, was that the sponsor and her husband (she is the respondent's maternal aunt) were to adopt the respondent. The sponsor was already living in the United Kingdom. The documents from the Social Services in Manila, dated about 1994, show that the proposed adoption was for two reasons. First the respondent's parents agreed that they could adopt the respondent because the sponsor and his wife are unable to have children. Second, the birth of the respondent would put some financial strain on her natural parents. It is said, but there is no supporting evidence, that the respondent's mother died in 1995 and at that stage her natural father abandoned all his children. They were all taken in by a maternal uncle in the Philippines. The respondent thereafter continued to live in his house, together with six other children, of which the eldest two are her younger siblings.

We were told that the two previous failed applications for entry clearance were both with the intention that the respondent would come to the United Kingdom and then be adopted here. The reason was that the lawyer in Manila, who was supposed to be dealing with the adoption, did not make any progress with it. It was decided that it would be easier for the adoption to be dealt with in the United Kingdom.

In the event, the adoption was completed on 21 February 2000 when the Regional Trial Court in San Fernando made the appropriate order. That adoption order provided for a new birth certificate to be issued with the names of the adoptive parents in place of the respondent's actual parents. The appellant has not challenged the validity of the order, or suggested it would not be recognised by the United Kingdom courts.

It is in the light of that history that the respondent's application came to be considered by the appellant. At the time of the application she was nearly 18. She is now 20. The relevant date is the date of refusal save that for the purpose of ascertaining age, it is the date of application.

The relevant immigration rule, is paragraph 310 of HC 395. The relevant parts read as follows:-

"310. The requirements to be met in a case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled …. in the United Kingdom are that he:

i) is seeking leave to enter to …. join an adoptive parent or parents in one of the following circumstances:-

(a) both parents are present and settled in the United Kingdom.

ii) Is under the age of 18; and

iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and

iv) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and

vi) (a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin …. being a country whose adoption orders are recognised by the United Kingdom; and

ix) was adopted due to the inability of the original parents or current carers to care for him and there has been a genuine transfer of parental responsibility to the adoptive parent; and

x) has lost or broken his ties with his family of origin; and

xi) was adopted, but the adoption is not one of convenience arranged to facilitate his admission or remaining in the United Kingdom…"

So far as this appeal is concerned it is not disputed that the sponsor and her husband could accommodate and maintain the respondent; that at the time of the application of decision she was under the age of eighteen; or that the sponsor and his wife are both present and settled in the United Kingdom. In addition, the sponsor and her husband have no other children and so the provisions of sub-paragraph viii (which we have not quoted) are not relevant.

Although the appellant, challenging the Adjudicator's decision, cites several parts of the rule he does not assert that the adoption was one of convenience. We are not therefore concerned to deal with that part of the rule.

The appellant gave several reasons for the refusal. The respondent attended the interview accompanied by her natural father. The appellant asserts that is an indication that she has not lost or broken ties with her family of origin. The respondent told the appellant that her adoptive parents, the sponsor and her husband, keep in contact with her by letters, telephone and text messages but produced no evidence of this from before the year 2000. The appellant was not satisfied the sponsor has been solely responsible for the respondent's upbringing or that there has been a genuine transfer of responsibility to her adoptive parents.

The Adjudicator found the respondent complied with rule 310 in its entirety. He found that the fact she was accompanied by her biological father to the interview, and that she sees him once a week does not mean her adoptive parents had not been responsible for her parenting. He accepted the explanation that it would have been unwise for an unaccompanied minor to go to a large city, like Manila, alone. The Adjudicator said that the appellant was wrong when he said in the explanatory statement that the sponsor must be solely responsible for the appellant's upbringing. He said that was too high a test and was not in accordance with the requirement of the rule. He was satisfied the appellant had "ignored clear evidence to suggest there had been a genuine transfer of responsibility to the adoptive parents".

Following submissions, we are satisfied that the adoption is perfectly genuine and was carried out in accordance with the long term plans of both the respondent's natural parents and her adoptive parents. The appellant has not asserted the adoption is one that would not be recognised by the United Kingdom. The questions we have to decide relate to other aspects of the rule.

Ms Adesemowo, who had not prepared any bundles for the hearing before us, relied on the bundle that had been before the Adjudicator both in relation to the statement made by the sponsor and documents which had been produced in support. The Tribunal and the Presenting Officer (who did not have a copy of the bundle on his file presumably because the appellant was not represented before the Adjudicator) shared the one copy that was in the IAA file.

In support of the assertion that there has been a transfer of responsibility for the respondent, we were taken to a number of school fee bills. Those did not help us as there is no indication as to who paid them. The sponsor's bank statements were produced in order to deal with accommodation and maintenance issues, but show no money being sent to the Philippines during the period which they cover. The evidence, in the form of the sponsor's statement, is that she assisted the respondent's natural parents financially, from the United Kingdom. It says little more than that. Although it was suggested to us in submissions that that the sponsor and her husband have been responsible for the respondent financially that was not established in evidence to the Adjudicator.

The rule requires the adoption to have been due to the inability of the natural parents to care for the respondent. There is no evidence that is the case, although, arguably, if the respondent's mother died and her father abandoned her, that could be the situation.

However, the rule says more than that. It also requires there to have been a genuine transfer of parental responsibility to the adoptive parents. Save for sending money from the United Kingdom (the extent of which has not been established) the only other evidence was a series of telephone accounts showing numerous calls to the Philippines and a series of badly photocopied envelopes addressed to the respondent by the sponsor and her husband.

Even if that could arguably be sufficient, it is vitiated by some of the other evidence. It is said that the respondent's father took her to the interview with the appellant because it would have been foolish to expect a young woman to travel alone to Manila to attend the meeting. That may well be true. However, the very fact that it was her natural father who accompanied her, immediately casts doubt on whether there has been a genuine transfer of parental responsibility. Furthermore it calls into question the requirement in rule 310(x) that the respondent should have lost or broken her ties with her family of origin. This latter provision caused us considerable concern. First, we note that within rule 310 the use of the word "family" cannot be restricted to parents. The expression "parents" is used throughout the rule and there is clearly intended to be a distinction when the rule refers to family. The appellant was, at the time of application, and still is, living with her two younger siblings and her maternal uncle, his wife and children. Those siblings, uncle, aunt and cousins are part of her family. They are not distant relations and clearly must come within the meaning of "family" in rule 310. However, there is more relevant evidence. In her interview she was asked how often she sees her father. She answered, "once a week". She said that she did not discuss problems with him, but if she had problems she wanted to talk about, she did so with her elder sister or friends. She confirmed she meant her biological sister. The explanation she gives for her seeing her father once a week is that he has access to the respondent's younger siblings. She says they are not hostile towards him like her older brothers and sisters. They are hostile because he abandoned them and they remember it. Whatever the reasons, she sees him weekly.

it is not sufficient for the purposes of the rule that adoption was made with a legitimate intent and in accordance with the law of the Philippines. In order to obtain entry clearance she has to do more than establish the genuineness of the adoption, she has to be able to comply with all aspects of the rule. She simply cannot do so. She cannot establish on the evidence that she has lost or broken her ties with her family of origin. It would be doing violence to the language of the rule to suggest that the fact her father sees her weekly (even if primarily to see her younger siblings) and accompanied her to the interview can still mean she has broken her ties with him. The ties to be considered are not just with her biological father because the rule refers to her family. She was living with her family. In terms of immediate family, she is with her two younger siblings. Slightly less immediate, but still family, are the uncle, aunt and cousins she was living with. She has lived with them since about 1995 and continues to do so. It cannot possibly be said that she has broken her ties with those parts of her family either.

Whether there has been a genuine transfer of parental responsibility is not determinative because the respondent cannot comply with other parts of the rule. However, we do set out our findings on that. We do not regard sending back unspecified amounts of money, making telephone calls and writing letters as sufficient evidence of a transfer of parental responsibility. The sponsor and her husband have only visited the Philippines twice since 1994 (once was to initiate the adoption proceedings ). There is no evidence the respondent has not met them elsewhere. There is no evidence to show that they have been making the sort of decisions that would point to the transfer of responsibility. Nor is there evidence that the respondent's current carers would not care for her.

The Adjudicator's findings are not backed up by adequate reasons. It was not open to him to conclude as he did from the evidence before him. As Mr Phillips said, the rules are precise, there is no room for ambiguity. The Adjudicator's determination is plainly wrong. Such evidence as he had was available to us. No more was produced. Ms Adesemowo had the opportunity of drawing our attention to the evidence which she felt important and making submissions upon it.

For the reasons which we have set out above we are entirely satisfied that the respondent did not comply with the provisions of paragraph 310 of HC 395 entitling her to leave to enter the United Kingdom to settle as the adopted child of the sponsor and her husband.

The Secretary of State's appeal is allowed.

C P Mather

Vice President