Paragraph 352D of the Statement of Changes in Immigration Rules, concerning the entitlement to entry clearance of a child seeking entry into the United Kingdom as a de facto adopted child of a sponsor who had previously been granted asylum as a refugee, did not extend to children who, neither adopted de jure nor de facto within the ambit of paragraph 309A of the Rules, could be styled as “adopted” by reason of having become a child of the family.

The Court of Appeal so held in a reserved judgment dismissing the appeal of the applicant, AA, whose sponsor brother-in-law had fled Somalia and been granted asylum as a refugee in the United Kingdom, against the determination of the Upper Tribunal (Immigration and Asylum Chamber) of 23 May 2011 which, while dismissing the appeal of the entry clearance officer from the decision of the First-tier Tribunal of 8 September 2010 on the basis that the refusal of entry to the applicant was in breach of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, held that the First-tier Tribunal had erred in its interpretation of the phrase “child of a parent” in paragraph 352D of the Rules.

As a result of events in Somalia the family of the applicant, who was born there in 1994, was torn apart. She went to live in Mogadishu with her brother-in-law and his two daughters, her sister having fled to the UK and been granted indefinite leave to remain on compassionate grounds. The brother-in-law was granted asylum in the UK and sought entry clearance for the applicant and his two daughters. Entry clearance was granted for the two daughters but not the applicant. Her appeal to the First-tier Tribunal was allowed on the basis that the applicant was the child of a parent, namely the brother-in-law, who had been granted asylum in the UK, that she was clearly a family member of his family unit and that she fell into a specific category of persons who had been taken into guardianship or the care of others under a transfer of responsibility such that Islamic law would recognise the legal state of the applicant as the child of the sister and brother-in-law for all purposes and in the circumstances in which the applicant was an orphan; alternatively that the refusal of entry was in breach of article 8 of the Convention. The Tribunal affirmed the article 8 point but determined that a transfer of parental responsibility was not enough to meet paragraph 352D and the sponsor brother-in-law was not a “parent” for the purposes of paragraph 352D.

DAVIS LJ said that the interpretative provisions of paragraph 6 of the Rules, and thereby the requirements of paragraph 309A, clearly applied to paragraph 352D. The interpretation of “parent” in paragraph 6 set out exhaustively who was to be regarded for the purposes of the Rules as an “adoptive parent” and there was nothing in either that paragraph or in paragraph 352D to indicate a contrary intention for the purpose of entry clearance applications under paragraph 352D. While it appeared to be likely that most applicants seeking entry to the UK as a de facto adopted child under paragraph 352D would be unlikely to satisfy the requirements of paragraph 309A, that was the balance the Secretary of State had struck when setting out the required approach in the Rules taking into account a number of differing and competing considerations. There was only one meaning of de facto adoption under the Rules and that was the meaning given to it under paragraph 309A, which applied to paragraph 352D as well as to paragraphs 310 to 316C.

TOULSON LJ and ARDEN LJ agreed.