Paragraph 352D of the Statement of Changes in Immigration Rules (1994) (HC 394), as amended and inserted, which provided for the grant of leave to enter to the “child of a parent” who had been admitted to the United Kingdom as a refugee, did not extend to a child for whom a family member had taken responsibility under the Islamic procedure of “kafala” and whose “adoption” did not fall within the meaning of paragraphs 6 and 309A of the Rules.

The Supreme Court so held when dismissing an appeal by the applicant, AA, from the Court of Appeal (Arden, Toulson and Davis LJJ) [2013] 1 WLR 268, [2012] WLR (D) 134 on 1 May 2012 to dismiss her appeal from the Upper Tribunal (Immigration and Asylum Chamber) which, while dismissing the entry clearance officer’s appeal from the decision of the First-tier Tribunal, promulgated on 8 September 2010, that refusal of entry was in breach of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, had held that the First-tier Tribunal had erred in its construction of the phrase the “child of a parent” in paragraph 352D of the Rules.

The applicant was born in Somalia in 1994. She lost her parents in war and, after her sister’s flight to the United Kingdom, lived as a family member with her brother-in-law and his two daughters for five years. He later fled to the United Kingdom where he obtained asylum, was reunited with his wife and sought entry clearance for his daughters and the applicant. Leave was granted to his daughters, but not to the applicant.

LORD CARNWATH JSC (with whom all the other members of the court agreed) said that the approach to the construction of the Rules was well settled: they were not to be construed with the strictness applicable to a statute or a statutory instrument, but sensibly according to the natural and ordinary meaning of the words used, recognising that they were statements of the Home Secretary’s administrative policy and that the court’s task was to discern their intention objectively from the words used: see Mahad v Entry Clearance Officer [2010] 1 WLR 48. Read in accordance with those principles, it was clear that paragraph 352D did not cover the applicant’s case and could not be rewritten in order to do so. Whether kafala could be treated as a form of “adoption” for other purposes, the definition of “adoptive parent” in paragraph 6 extended to “de facto adoption” only within the limitations laid down by paragraph 309A, which did not cover the present case. The specific treatment of adoption in paragraph 6(d) excluded any intention to cover other forms of adoption outside the definition. The wording of the Rules was plain and unambiguous. International instruments cited by the applicant illustrated the need for flexibility in approaching the concept of family, but pointed to no specific obligation covering the present context. Material reflecting ministerial flexibility outside the Rules on the question of family reunion was not treated as a matter of legal obligation but was a matter of “exceptional” consideration. It was harsh for the applicant to be treated less favourably than her adoptive siblings who had obtained entry clearance under the Rules, but it was unnecessary to decide whether such treatment could give rise to a claim for unlawful discrimination under article 14 of the Convention since, in exercising any discretion in relation to the grant or extension of discretionary leave to remain, the Home Secretary was obliged to act in conformity with the Convention, including article 14. Paragragh 309A(b)(i)(ii) appeared ill-adapted to the purposes of paragraph 352D: its stipulations assumed a degree of stability in the home country which was likely to be wholly inappropriate for most asylum-seekers. It appeared that the definition was designed principally to deal with ordinary applications to enter by adopted children. It had found its way into paragraph 352D by a circuitous route which suggested that careful thought might not have been given to its practical implications. The Rules should be amended to bring them into line with the practice actually operated by the Home Secretary, including that dictated by her obligations under international law.