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Cite as: [2007] UKAIT 00038, [2007] UKAIT 38

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FK and MK (EEA Regulations: "Descendants": meaning) Sierra Leone [2007] UKAIT 00038

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 10 October 2006

Date Determination notified: 05 April 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge King

Between

FK and MK	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Mr K Owusu, Pan African Legal Advisory Services

For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

An adoption requires an intention to adopt: mistakenly treating a child as one's own does not amount to adoption. Children not related to the sponsor, and not the subject of adoption, are not his "direct descendants" for the purposes of the Immigration (European Economic Area) Regulations 2006 or the underlying Directive.

These appeals are before us for reconsideration at the instance of the respondent, following a determination by an Immigration Judge allowing the appellants' appeals against decisions of the respondent on 17 June 2005 refusing them EEA family permits. Each appellant claimed and claims to be entitled to an EEA family permit as the daughter of the sponsor, who is claimed to be their father and who is a Finnish national resident in the United Kingdom.

In refusing the applications, the respondent took a number of points against the appellant. He asserted that some of the documents they had produced to support their applications were not genuine, and he recorded also that "the results of DNA testing do not support the claimed relationship between" each appellant and the sponsor. The Immigration Judge resolved all the questions of documentary evidence in favour of the appellants. So far as the relationship is concerned, the Immigration Judge accepted that there was no blood relationship between the appellants and the sponsor, but nevertheless decided that they should be granted EEA family permits on the basis that there had been some form of de facto adoption of the appellants by the sponsor, and that they should therefore be treated as his daughters. He thus allowed the appeals. The grounds for reconsideration are as follows:

"Ground 1

…

Although it is conceded there is no definition of the term 'descendant' for the purposes of the Regulations; it is submitted that in cases involved alleged de facto adoptions an Immigration Judge, taking the purposive approach, should perform a rigorously thorough examination of parental responsibility and dependency. It is submitted that the Immigration Judge has used the wrong test at paragraph 25. Even accepting that the appellants have been 'mainly dependent on him financially' does not give rise to a finding a de facto adoption exists. It is submitted that for a de facto adoption claim to be made out, complete or whole dependence should be shown, along with vested responsibility that must not have been delegated for a substantial period prior to the application. Although strictly speaking the Immigration Rules are not applicable in this case, it is respectfully submitted they can usefully be referred to for guidance in cases such as these. Paragraph 309A(a) makes clear that a de facto adoption can only exist where the adoptive parent has lived with and taken care of the child. The sponsor in this case has not.

Ground 2

In the alternative, it is submitted that the Immigration (European Economic Area) Regulations 2000 do not recognise de facto adoptions, and in fact recognise only blood ties. 'Descendants' should be given its natural meaning. It is submitted that a 'descendant' is one connected to another by a direct vertical blood line. It is submitted that the only exception to this rule within the Regulations must be an official adoption which, in any event, is the legal mechanism for creating a relationship akin to blood ties. Accepting de facto adoptions are not recognised under the Regulations, it is submitted de facto adoptions can only be considered under provisions of HC 395, and not under the Regulations."

This appeal is now governed not by the 2000 Regulations and the Directives those Regulations implement, but by The Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), implementing Directive 2004/38/EC. It is not, however, suggested that this makes any substantive difference to the outcome of this appeal. The question is whether the appellants are, or are entitled, to be treated as "descendants" of the sponsor, within the meaning of the Directive and the Regulations, if, or, if not, whether they are entitled to be treated as "family members" of his.

We do not need to set out the facts in any great detail. The appellants have different mothers. The sponsor has had no contact with either mother for many years. The Immigration Judge was told, and appears to have accepted, that in each case the mother left the sponsor to look after the child, in the first appellant's case in July 1990, when she was between 2 and 3 years old, and in the second appellant's case in August 1989 when she was only 3 days old. The sponsor left Sierra Leone in 1990 and went to Finland, where he married a Finnish woman who he has since divorced. The evidence discloses one (and we think only one) visit by the sponsor to Sierra Leone since 1990. That was in 2001, when it is said he saw the appellants. The appellants' day to day care has been performed by the sponsor's mother in Sierra Leone. The sponsor has, however, taken all the important decisions and has remitted money for them ever since he left Sierra Leone. The Immigration Judge accepted that, despite his long absence from them, he has always behaved to them as a father, that they regarded him as their father and that he regarded them as his daughters.

The sponsor's evidence to the Immigration Judge was that, until the DNA tests in connection with the present applications, he had no idea that the appellants were not his daughters. So far as the first appellant was concerned, he had accepted her mother's allegation that the child was his and in both cases he was unaware that the mother was having a relationship with any other man whilst she was seeing him.

In his submissions, Mr Avery expanded briefly on the grounds for reconsideration. He said that the essence of the problem was that the Immigration Judge had simply given too wide a meaning to the notion of "descendant" and "family member". There was no basis for treating a person who was not related at all to the sponsor (either by blood or by marriage) as falling within either of those categories. Clearly an adopted child should be treated as the sponsor's child, but the appellants had not been adopted. Further, there was no basis for regarding a de facto adoption as having taken place: whether or not paragraph 309A of the Statement of Changes in Immigration Rules, HC 395, was strictly apposite, it ought to have been treated as sound guidance on what might be needed for a de facto adoption. Mr Owusu submitted that a person should be regarded as a child's father if he had assumed the role of the father. He submitted further that there had been a de facto adoption because the appellants had lived in a household with the sponsor for a year before he left Sierra Leone; and there was the matter of the sponsor's continuing support of the appellants. The appellants, he said, were entitled to admission either because, as he put it, "on the face of it" they are the sponsor's descendants, or because they have become his descendants by de facto adoption.

It goes without saying that the proof, during the course of this application, that the appellants are not the sponsor's daughters, causes difficulties for everybody involved. The position is that although the sponsor and the appellants thought they were related, and behaved as though they were related they are in fact not related. The question is then whether, for the purposes of the free movement provisions of the Treaties, they should be treated as related. We may summarise our view by saying that we cannot see any proper reason why they should be. There has been a mistake, and it is a mistake which may have serious consequences; but despite Mr Owusu's advocacy, we do not think that the true facts can be ignored, which is essentially what he would ask.

The appellants are not the sponsor's descendants because they are not his children. They are, in addition, not his adopted children. We would not want to accept Mr Avery's submission that the meaning of de facto adoption is to be governed or even guided in general terms by paragraph 309A of the Immigration Rules, because that paragraph provides the definition of "de facto adoption" for a particular purpose within the limited ambit of certain paragraphs of the Immigration Rules. But in its more general sense, de facto adoption is a notion by which English law has in certain circumstances recognised the assumption of parental rights and duties by one who is not the parent of a child; in particular de facto adoptions may be recognised where the applicable law prevents a formal legally-effective adoption from taking place. We cannot, however, envisage an adoption of any sort taking place without an intention to adopt. There is no such intention in this case. At the date of the application, on the facts as found by the Immigration Judge, the sponsor and the appellants appear to have thought that they were related as claimed. There is no possibility of any of them having regarded an adoption as having taken place before that. After the DNA testing there was a further period during which enquiries were made at the laboratory. Even at the date of the hearing the Immigration Judge heard evidence from the sponsor that he found the results of the tests difficult to accept. There is nothing here to show that at any stage the sponsor voluntarily undertook, or was prepared voluntarily to undertake, the support, maintenance, or duties of a father in respect of children to whom he was not related. What will happen in the future we do not know, but so far as the facts relevant to this appeal are concerned, there has been no adoption. The appellants who, on the facts, had been abandoned by their mothers and, apparently, their real fathers, have had for the whole of their young lives the advantage of the sponsor's mistake as to their paternity. So far as concerns the evidence in these appeals, there can be no suggestion that they have been harmed by any reliance on the mistake. The position is simply that, now the error has been exposed, they are not entitled to rely on the facts as they were thought to be.

For completeness we should say something about Article 8, which underlay a number of Mr Owusu's submissions. We entirely accept that the relationship between the parties to a de facto adoption is capable of amounting to "family life" within the meaning of Article 8. There has, however, been no de facto adoption in this case. The situation has been that the sponsor has supported the appellants in the belief that they were his daughters but has not lived in the same household with them for many years. What the position is and will be now that it is clear that they are not his daughters is entirely unknown. There is no reason at all why he should not continue to support them if he wishes to do so. But nothing in evidence before us or before the Immigration Judge shows that to refuse them admission as his daughters would be a disproportionate breach of anybody's right to private or family life.

For the foregoing reasons we find that the Immigration Judge made material errors of law in his determination and we substitute a determination dismissing both the appellants' appeals.

C M G OCKELTON

DEPUTY PRESIDENT

Date: