Adoptions from Abroad: Article 8 Fails to Assist

12 November 2015 by Gideon Barth

SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109

A child (SM) who was adopted in Algeria by a French couple living in the UK was refused an application for a right of entry as a family member. Having been overturned in the Upper Tribunal, the Entry Clearance Officer (ECO) successfully appealed to the Court of Appeal. SM was not, the court held, a family member of Mr M. A keen human rights observer might think this was an apparent infringement of article 8 ECHR (the right to family life).

This post will look at two questions:

1. Why was SM not considered to be a ‘family member’?
2. Where was article 8 hiding?

Mr and Mrs M, a French couple of Algerian origin, living in the UK, sought to adopt a child from Algeria. In 2009, they underwent an assessment of their suitability to be legal guardians in Algeria under the kafalah system (Islamic alternative to adoption). They were found to be suitable, applied to be legal guardians, waited the three months required by Algerian law and were issued with a Legal Custody Deed in March 2011.

The couple and their child lived in Algeria for a year before Mr M, who has a permanent right of residence in the UK, returned to work in the UK as a chef. An application was made in May 2012 to confer upon SM a right of entry as a family member of Mr M. That was refused by the ECO for the following reason:

“…not satisfied that your adoption is legally recognised in the UK and therefore I am not satisfied that under UK law you are related as claimed or that the national of whom you claim to be a family member is a qualified person.”

Why was SM not considered to be a family member?

The European Citizenship Directive sets out a number of principles seeking to promote the free movement and residence of persons and conferring that right on family members. But where a person does not fall in the Directive’s definition of family members, then the rules to be applied are the rules of the Member State.

What is the definition of a ‘family member’ for the purposes of the Directive?

• Article 2(2) of the Directive defines a ‘family member’ as a spouse, a registered partner, a direct descendant under the age of 21, and dependent direct relatives in the ascending line;
• Article 3(2) of the Directive requires that a Member State shall facilitate entry for ‘any other family members’ not falling in the article 2(2) definition but who are dependants or household members in the country from which they have come.

In addition, there are two relevant Immigration Regulations:

• Regulation 7 provides that a person should be treated as a ‘family member’ if they are a spouse or civil partner, or direct descendants who are under 21 or dependants;
• Regulation 8 provides that an ‘extended family member’ is a person who does not fall in the definition of Regulation 7 but who satisfies other conditions under Regulation 8.

There are also two relevant UK Immigration rules:

• S.309A provides the circumstances where a de facto adoption shall be regarded as having taken place;
• S.309B provides that where there is no de facto adoption, prospective adopters should obtain a Certificate of Eligibility from the Department for Education first.

The judgment of the Court of Appeal, delivered by Lord Justice Laws, looked first at whether SM was a ‘family member’ in accordance with Regulation 7 and Article 2.

An adopted child is treated in law as the natural child of the adopters so SM could fall in this category of ‘direct’ descendants. However, the Member State can make its own rules defining what foreign adoptions it recognises and the UK does not recognise adoptions in Algeria. In addition, Mr and Mrs M had not obtained a Certificate of Eligibility in accordance with the UK Immigration Rules.

What about overriding principles of EU law which might help? EU legislation and communications require the Member State to act in the best interests of the child. The court accepted that the UK’s arrangements gave effect to both the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption and the UN Convention on the Rights of the Child. Therefore, the UK immigration rules were lawful and under those rules, SM was not a family member.

Secondly, the court looked at Regulation 8 and Article 3.

But no luck for SM here either. If the Directive permits the Member State to restrict the forms of adoption it will recognise in the best interests of children, then article 3 cannot contradict that position. Even if previous tribunals found that SM was a ‘relative’, the Directive gives clear permission to the UK to make its own rules.

So what happened to article 8 ECHR?

Peculiarly, the human rights argument seems to have fallen away without so much as a whimper. To see why, we must look back at the earlier decisions.

In the First Tier Tribunal (FTT), article 8 was considered. Given that Mr M’s wife would not be able to join him in the UK if the child remained in Algeria, there was a clear interference with article 8. So was the interference proportionate?

In this instance, the FTT found that the interference was proportionate: the couple have ties to Algeria and family there, and SM was settled; by contrast there was no family support in the UK, and, it found, scant regard was had for the best interests of the child. Therefore, the interference was lawful and proportionate. In other words, there was no breach of article 8.

On appeal, the Upper Tribunal (UT) looked at the definition of an ‘extended family member’ under Regulation 8. It held that the Regulation must be read or interpreted to comply with article 8 ECHR (under the provisions of section 3 Human Rights Act (HRA) 1998). Although SM would not be defined as such under the regulation alone, she would be considered a ‘relative’ and a family member with the assistance of article 8.

This was subsequently overturned in the Court of Appeal for a very simple reason. The Upper Tribunal had (implicitly) accepted the FTT finding that the refusal of an EEA family entrance permit involved no violation of article 8 ECHR. The section 3 HRA interpretation provision should only be done where without it there would be a breach of the Convention rights. Therefore, the UT interpretation was unnecessary and inappropriate in the circumstances.

Without the assistance of article 8, SM was not deemed to be a family member or an extended family member and the refusal for a visa was upheld.