UK - Upper Tribunal, 27 September 2011, Mohamoud (paras 352D and 309A- defacto adoption) Ethopia [2011] UKUT 378 (IAC)
| Country of Decision: | United Kingdom |
| Country of applicant: | Ethiopia |
| Court name: | Upper Tribunal |
| Date of decision: | 27-09-2011 |
| Citation: | [2011] UKUT 378 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
Headnote:
Domestic Immmigration Rules are likely to bar family reunion for children of refugees who have been informally adopted or whose legal adoption is not recognised by the UK.
Facts:
The applicant was an Ethiopian child who had been informally adopted by his aunt when he was a year old. His aunt fled to the UK where she was recognised as a refugee in 2006. The child and his adoptive father applied to join her under the rules applying to refugees. The husband / adoptive father was admitted but the child was refused entry as he could not satisfy the Immigration Rules. He appealed and won his appeal as satisfying the Immigration Rules and under Art 8 of the European Convention on Human Rights (ECHR). The Secretary of State for the Home Department appealed to the Upper Tribunal on both grounds.
Decision & reasoning:
The Tribunal reviewed the relevant domestic Immigration Rules but concluded that because the adoptive mother had not lived with the child for 12 months immediately preceding the application she had not satsifed a necessary requirement of the Rules. Following the rules through it followed that the child could not show that he was the subject of a ‘de facto” adoption and therefore not the child of a parent who had been granted refugee status. The Secretary of State for the Home Department did not pursue the appeal on Art 8 and the decision to allow the appeal on Art 8 was affirmed.
Outcome:
Observations/comments:
The child will be admitted to join his parents but he will not be granted the same status as his parents. It is arguable that the residence requirement in the general immigration rules is intended to protect vulnerable children against exploitation and trafficking. However, it is highly unlikely that refugee parents of informally adopted children, (and the UK does not recognise adoption in many countries) would ever be able to satisy a requirement of having lived with their children for at least 12 months ‘immediately” before applying for them to come to the UK.
Although the principle of family unity may be honoured by allowing entry under Art 8, in the UK discretionary leave does not grant the status and rights which follow recognition as a refugee.
It is also arguable that the current rules although designed to protect children generally are not in the best interest of the adopted children of refugees.
Similar problems have been identified in realtion to the fiances of refugees, but in all cases in the UK fiances are adults and the grant of discretionary leave does not have the same significance as it does for children, who may find that their educational opportunities for example are affected by their status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Immigration Rules |
| UK - Immigration Rules - Para 6 |
| UK - Immigration Rules - Para 309A |
| UK - Immigration Rules - Para 352A |
| UK - Immigration Rules - Para 342D |