MK (Somalia) & Ors v Entry Clearance Officer & Anor

Customary international law does not require a receiving state to extend refugee family reunion to children adopted informally. A precise obligation of that kind requires evidence of a clear international consensus.

The family reunion provisions introduced into the Immigration Rules in 2000 superseded the earlier, more loosely expressed ministerial concession. Administrative guidance explaining those provisions does not create a parallel policy with less restrictive requirements. A child who falls outside the Rules’ definition of de facto adoption therefore has no separate entitlement under such a policy, although admission may still fall for consideration on compelling compassionate grounds or under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.

Three Somali children had been raised as members of their maternal aunt’s household after their mother was killed and their father disappeared. The aunt later obtained refugee status in the United Kingdom. Entry clearance was granted to her husband and natural children but refused to the appellants, whose relationship with her amounted to de facto adoption.

The Immigration Judge dismissed their appeals, and a Senior Immigration Judge upheld that result on reconsideration. The children could not satisfy paragraph 297 or the refugee family reunion provisions of the Immigration Rules. They nevertheless claimed an entitlement under a family reunion policy outside the Rules, relying on a 1995 ministerial statement, administrative guidance and customary international law.

It was common ground that the tribunal’s treatment of Article 8 of the European Convention on Human Rights and Fundamental Freedoms contained a material error of law. The contested issue was whether a free-standing policy benefited de facto adopted children who fell outside paragraph 309A.

1. The appeal was allowed in part and the Article 8 claim remitted. The tribunal had reached the correct conclusion on the alleged policy outside the Immigration Rules. Its consideration of Article 8 of the European Convention on Human Rights and Fundamental Freedoms was, however, vitiated by material legal error. That issue required reconsideration.

2. The international materials did not establish a customary international law obligation positively protecting de facto adopted children in refugee family reunion cases. They showed growing recognition that family life may require a flexible approach responsive to social and cultural differences. They did not demonstrate a clear international consensus, or a precise and identifiable obligation prescribing how a receiving state must treat an informal adoption whose existence may be difficult to verify.

3. The 1995 ministerial statement did not establish the claimed entitlement. There was no indication that the statement’s reference to minor children who had lived with the refugee as a family specifically contemplated de facto adoption. Its wording did not justify the expansive construction advanced by the appellants.

4. The family reunion provisions added to the Immigration Rules in 2000 superseded the earlier, more loosely expressed concession. The Rules gave de facto adoption a specific and restrictive meaning through paragraphs 6 and 309A. It would be anomalous for that definition to operate alongside a vaguer policy imposing less demanding requirements.

5. The Diplomatic Service Procedures and their successor entry-clearance guidance explained how the Rules were to be administered. They did not preserve a broader, free-standing family reunion policy. Where the guidance addressed leave outside the Rules, it did so expressly, including the separate route for other dependent relatives where compelling compassionate circumstances existed.

6. Accordingly, no policy outside the Rules accrued to the particular advantage of de facto adopted children who failed paragraph 309A. Maurice Kay LJ nevertheless observed, without deciding the point, that the appellants’ Article 8 case appeared compelling on the facts found. Thomas and Waller LJJ agreed.

1. Court of Appeal (Civil Division): The court upheld the tribunal’s conclusion that no free-standing family reunion policy benefited the appellants, but accepted that the Article 8 decision contained a material legal error. The human-rights claim was remitted for reconsideration.

2. Asylum and Immigration Tribunal, reconsideration: A Senior Immigration Judge upheld the dismissal of the entry-clearance appeals.

3. Asylum and Immigration Tribunal: An Immigration Judge dismissed the appellants’ appeals from the Entry Clearance Officer’s decisions.