Sharma v Entry Clearance Officer (New Delhi)

For settlement as an adopted child under paragraph 310(ix) of the Immigration Rules HC 395, the original parents must lack the skill, means or opportunity to provide care. Parents who can care for a child but choose not to do so are unwilling, not unable, to care. Section 3 of the Human Rights Act 1998 does not justify giving “inability” that strained meaning where Article 8 can be addressed through the discretion to grant leave outside the Rules. The Rule’s requirements are not exclusive: leave must also be granted where refusal would breach Convention rights.

An eight-year-old Indian child appealed against refusal of entry clearance to settle in the United Kingdom with her adoptive parents. The adjudicator dismissed the appeal under paragraph 310(ix) of the Immigration Rules HC 395, finding that the natural parents had rejected the child by choice rather than being unable to care for her, and that there had been no genuine transfer of parental responsibility. The adjudicator also found no breach of Article 8 of the European Convention on Human Rights. The Immigration Appeal Tribunal upheld that decision and declined to treat unwillingness as inability. The appeal concerned the meaning of “inability”, the effect of section 3 of the Human Rights Act 1998, and the relationship between the Rules and Article 8.

Appeal dismissed. The Court of Appeal unanimously agreed with Pill LJ’s reasoning and conclusions.

1. Paragraph 310(ix) requires that the child was adopted because the original parents or current carers were unable to care for the child, and that there was a genuine transfer of parental responsibility. “Unable” means lacking the skill, means or opportunity to do something. It does not include a case where parents are able to care but choose not to do so. The natural parents’ gender-based rejection therefore did not satisfy the first limb.

2. 3 IAS 2000 (No 15) was factually distinguishable. There, the father’s absence in the United States meant that he could not care for the children in the circumstances. That did not support treating voluntary unwillingness as inability in the present case.

3. The construction was not altered by section 3 of the Human Rights Act 1998. The Court accepted that the Immigration Rules are subject to the interpretative duty, reflected in [2004] 3 WLR 113. However, inability and unwillingness were distinct concepts, and section 3 could not require the strained interpretation proposed.

4. The requirements in paragraph 310 are not an exclusive statement of when leave may be granted. Leave must be granted outside the strict wording of the Rules where refusal would breach the Secretary of State’s duties under the Human Rights Act 1998. On the facts, the adjudicator was entitled to find no breach of Article 8. Keene LJ added that the entry clearance officer could act compatibly with Convention rights by exercising the discretion to grant leave outside the Rules.

5. The alternative arguments concerning paragraph 297, the interpretation provision in paragraph 6(d), and the adoption’s compliance with the competent Indian authority were either procedurally unavailable or unnecessary to decide.

• Court of Appeal (Civil Division): Appeal from the Immigration Appeal Tribunal dismissed.
• Immigration Appeal Tribunal: Appeal from the adjudicator’s determination dismissed on 18 August 2004.
• Adjudicator: Appeal against the Entry Clearance Officer’s refusal of entry clearance dismissed on 18 June 2003.