Yet Another ‘Skype Family’ In the Making

In our October article we explained that the income threshold required for a British national to bring his or her non-EEA resident family into the country was leading to more and more Skype Families. Unfortunatelty, we have to report that a recent Court of Appeal decision has quashed the hopes of many families planning to bring their adopted children into the United Kingdom as dependents under the EEA Regulations.

Unless the adoption is recognised by UK law, children will be refused entry into the country.

The Facts of SM (Algeria) v Entry Clearance Officer, UK Visa Section

The case, SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109, was decided by the Court of Appeal late last month. It concerned an Algerian national (the Appellant), who was born in 2010. Her parents were both French, of Algerian origin, who had been living in the United Kingdom for a number of years. They had travelled to Algeria to become the legal guardians of the respondent under the kafalah system (the Islamic alternative to adoption).

The Entry Clearance Officer (ECO), refused to issue the child with an EEA family permit to enter the UK as a family member of an EEA national exercising free movement rights because they were not satisfied that the adoption was of a kind that was recognised in the UK. The ECO noted that no application for inter-country adoption had been made nor had a 'Certificate of Eligibility to Adopt' been issued by the Department for Children, Schools and Families, so they argued that the child was not eligible for entry clearance under para 310 of the Immigration Rules.

The Decisions of the Lower courts

The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT) dismissed the respondent's appeal. It decided that the respondent did not qualify for an EEA family permit as a family member, extended family member or adopted child of an EEA national. It found that the father, as the child’s sponsor, could have complied with the authorities in the UK by obtaining a certificate of eligibility to adopt under a UK adoption agency. Any interference with Article 8 of the European Convention on Human Rights was found to be proportionate and lawful in the circumstances.

The Upper Tribunal (Immigration and Asylum Chamber) (the UT) allowed the child’s appeal. It agreed that she was not a family member within the meaning of Reg 7 of the EEA Regulations 2007, because the foreign adoption was not recognised in the UK, but found that she was an 'extended family member' 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”.

Following the decision of the UT, the ECO appealed to the Court of Appeal.

The Court of Appeals Decision

The Court of Appeal found for the ECO. It referred to the decision of MN (India) 2008 EWCA Civ 38. This decision highlighted four ways a child can be granted entry to the UK following or pending an adoption. They are:

• In accordance with paragraph 310 of the Immigration Rules, where the adoption process has been completed in a country recognised by the UK for this purpose. Algeria is not included in the list of countries recognised.
• De-facto adoption
• Adoption under the Hague Convention
• Entry clearance for adoption to take place in the UK

The child, in this case, did not fall under any of the above categories.

The Court also considered whether the child was a family member in accordance with Article 2 of the Parliament and Council Directive 2004/38. It held that she was not. In their reasoning, the Appeal Judges considered the welfare of the child, and concluded that the European legislature could not have intended that member states should be required to recognise (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. In fact, the Directive allowed member states to restrict the forms of adoption which they felt did not feel were in the best interests of the child. The Appeal Judges also concluded that the child was not an extended family member under Article 3 of the Directive and Regulation 8 of the EEA Regulations.

The Court also rejected any right of appeal under Article 8 of the ECHR.

Conclusion

This decision makes it clear that the European Parliament, whilst promoting the principle of free movement, intended to leave the mechanics of the implementation of some clauses to the host countries. In situations where vulnerable individuals, such as children are involved, officials must have the ability to ensure the welfare of the child is paramount at all times. However, if this power is misapplied, or misused, it can lead to traumatic cases of children being unnecessarily separated from loving parents.

OTS Solicitors is an Immigration, Employment and litigation law firm, based in Fleet Street, Central London. Committed to providing the best service possible to Immigration clients, both in the UK and overseas, we can assist you with all Immigration matters, including overseas adoption, EEA residence and appeals under the European Convention on Human Rights. To find out how we can help you, please phone our office on 0207 936 9960.