24 Oct 2016, 33 mins ago

The Court of Appeal (Civil Division) has recently considered whether an adoption order issued abroad would entitle an applicant child to be granted entry in the UK with his adoptive parents.

The case, known as SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109, reached the Court of Appeal following the Entry Clearance Officer’s (ECO) appeal against a determination of the Upper Tribunal (UT). The UT had allowed the child’s appeal against the decision of the ECO to refuse her an EEA family permit.

The appellant is an Algerian national, who applied for entry clearance as the family member of EEA nationals exercising free movement rights (Mr and Mrs M, her adoptive parents).

Mr and Mrs M are French nationals of Algerian origin, living in the UK and exercising free movement rights. They applied to be the legal guardians of the appellant under the Algerian kafalah system, and were granted a Legal Custody Deed in accordance with Algerian law.

Having resided for a year in Algeria, the family intended to return to the UK. An application for a visitor visa made on behalf of the appellant failed, and eventually the appellant submitted an application for a family permit, under EEA Regulations.

The ECO refused the application on the basis that the adoption is not legally recognized in the UK, and therefore the appellant was not a “family member” in accordance with paragraph 7 of the 2006 EEA Regulations.

The ECO maintained that no application for inter-country adoption had been made and no certificate of eligibility to adopt had been issued by the Department for Children, Schools and Families. Such certificate would have made the appellant eligible for entry clearance under paragraph 310 of the Immigration Rules.

The appellant’s appeal to the First Tier Tribunal was dismissed, but she was successful at the Upper Tribunal. The ECO appealed the Upper Tribunal’s determination to the Court of Appeal.

The Court of Appeal considered the Immigration Rules relating to the entry clearance of an adopted child, the Citizenship Directive and the 2006 EEA Regulations and analysed the definition of “family member” and “extended family member” in the context of EEA law.

During the appeal process, both the First Tier and Upper Tribunal found that the foreign adoption, although compliant with Algerian law, is not recognized in the UK, and concluded that the appellant is not a family member of an EEA national because she is not a “direct descendant” as defined by Paragraph 7 of the 2006 EEA Regulations.

In its analysis of Article 8 ECHR (right to private and family life), the First Tier Tribunal concluded that any interference with Article 8 would be proportionate because “Under Regulation 12(5) any family permit can be withheld if there are issues of public policy, public security or public health. The safety of a child is a matter of serious public policy and to be protected. Scant regard has been paid to the welfare and best interests of the appellant. It has been about what is convenient to the sponsor and his wife in getting around the strict rules and procedures in place to protect children and in exercising what the sponsor considers to be his right. There is nothing to prevent the sponsor complying with the authorities in the UK and obtaining a certificate of eligibility to adopt or obtaining approval from a UK adoption agency as to his suitability”.

Contrary to the First Tier Tribunal’s findings, the Upper Tribunal concluded that the appellant, although not a “family member”, meets the definition of “extended family member” contained in Regulation 8, because “it is difficult to see how, in this instance, the Appellant can share a family life with [her adoptive parents] but not be considered a ‘relative'”.

The ECO appealed this decision and the case was heard by the Court of Appeal, which issued judgment on 4 November 2015.

The Court of Appeal referred to the case of MN (India) 2008 EWCA Civ 38, which dealt with the four “avenues for entry to the UK provided by the Rules in respect of a child adopted or intended to be adopted”. The first avenue consists in the requirements of paragraph 310 of the Immigration Rules, for the entry of a child adopted in force of a decision of the competent authority of their country of origin. Algeria is not amongst the countries recognized for this purpose. The other three avenues are: de facto adoption; entry clearance to be adopted in the UK “in accordance with the law relating to adoption in the United Kingdom” and adoption under the Hague Convention.

According to the Court of Appeal, the appellant did not fall under these categories. Furthermore, given that the best interests of the child must be protected, the Court accepted the ECO’s submission that the European legislature cannot have intended that Member States should be required to recognize (for the purpose of the Directive) overseas adoptions as a matter of course, irrespective of the quality, in terms of the child’s interests, of the procedures followed in any particular State.

The Court of Appeal concluded that the European legislator left it to Member States to decide “on the terms upon which adopted children will be recognized as “direct descendants” within the meaning of Article 2 of the Directive”. Therefore the appellant is not a “family member” as defined by Article 2 of the Directive and Regulation 7.

The Court added that for the same reason, the appellant does not meet the definition of “extended family member” of Article 3 of the Directive and Regulation 8. The finding of the Upper Tribunal that the appellant is a ‘relative’ of Mr and Mrs M does not reflect the structure of Articles 2 and 3 of the Directive, nor “does it give weight to the Directive’s distinct purpose, which is not to promote family life as self-standing value”, but to support “the right of free movement and residence of all Union citizens”.

Finally, the Court stated that in relation to Article 8 ECHR “there is no issue in this appeal as to the Convention rights of the respondent, the sponsor or his wife” and the First Tier Tribunal’s findings in relation to Article 8 are unappealed and unappealable.

This decision, together with the Court of Appeal’s decision in MN (India) 2008 EWCA Civ 38, makes it impossible for children adopted abroad to enter the UK as dependents of their adoptive families, unless the adoption is recognized by the UK.

It is therefore crucial for families intending to enter the UK to ensure that they obtain a certificate of eligibility to adopt or prior approval from a UK adoption agency as to their suitability.