MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department

When refusal of entry clearance interferes with family life under article 8, proportionality must be assessed without a separate requirement that the circumstances be exceptional. The availability of a route under the Immigration Rules which incorporates safeguards for a proposed inter-country adoption is a relevant and potentially substantial consideration.

A decision-maker may attach weight to the absence of an independent assessment of the prospective adopters, the child’s wishes and relationships, and the proposed arrangements for the child. An erroneous reference to exceptional circumstances does not require appellate intervention where the proportionality conclusion was otherwise lawful and, on no view of the facts, could have been different.

An Indian child had been adopted under Indian law by a couple settled in England. The adoption was not recognised in England and Wales. An Entry Clearance Officer refused her application to enter as an adopted child because she did not satisfy the Immigration Rules. An immigration judge dismissed her appeal, although she found that family life had begun and made several findings favourable to the child and the adopters.

The Asylum and Immigration Tribunal ordered reconsideration but affirmed the immigration judge’s determination. The child appealed, contending that refusal of entry clearance was a disproportionate interference with her family life under article 8. The central issue was whether the immigration judge had made an error of law by omitting the child’s welfare from the proportionality assessment, relying on an exceptional-circumstances test, or treating the alternative route under paragraph 316A as relevant.

1. Appeal dismissed. The immigration judge made no material error of law in holding that refusal of entry clearance was a proportionate interference with the child’s family life.

2. Per Wilson LJ, with whom Ward and Keene LJJ agreed, the immigration judge was entitled to consider that the existing arrangements had enabled family life to continue while the child lived in India. Those arrangements had benefited her, although refusal of entry would prevent the fuller family life which might have developed in England.

3. The immigration judge had not overlooked her favourable findings about the adopters’ care of the child. Those findings did not establish that ending the existing arrangements and moving the child to England would promote her welfare. There had been no independent assessment of the adopters’ home, personalities, relationship or history. Nor had the child been interviewed, her views obtained, her relationship with the adopters independently observed, or the proposed arrangements for her life in England scrutinised.

4. The professional safeguards required for inter-country adoption were material to proportionality. Paragraph 316A of the Immigration Rules provided a possible route for entry for adoption in the United Kingdom. Compliance would require an assessment of the prospective adopters under section 83 of the Adoption and Children Act 2002 and Part 2 of the applicable regulations. The immigration judge was entitled to treat the availability of that route as relevant and to give it substantial weight.

5. The immigration judge had wrongly referred to whether the circumstances were “truly exceptional”. The House of Lords in Huang [2007] UKHL 11 had established that article 8 contains no separate exceptionality test. The error was immaterial, however, because exceptionality was only a label attached after the immigration judge had conducted a lawful proportionality assessment. Per Keene LJ, applying AG (Eritrea) [2007] EWCA Civ 801, the appeal need not be allowed where, on no view of the facts, could refusal have been disproportionate.

6. The tribunal’s own additional reasoning included errors or doubtful points, but the appeal depended on whether the immigration judge had erred in law. She had not. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the conclusion that the immigration judge had made no material error of law: [2008] EWCA Civ 38.
2. Asylum and Immigration Tribunal: On reconsideration, affirmed the immigration judge’s determination because it discerned no material error of law.
3. Immigration judge: Dismissed the appeal against the Entry Clearance Officer’s refusal of entry clearance.