The Entry Clearance Officer, Addis Ababa v Master Ahmed Mohamed Mohamoud

For Immigration Rules paragraph 352D, a child may include an adopted child. A de facto adoption, however, has the single and restrictive meaning prescribed by paragraph 309A. The rules do not permit a wider, ordinary meaning of de facto adoption for refugee family reunion.

The parent whose status matters under paragraph 352D is the person granted asylum. That parent must satisfy paragraph 309A's residence-abroad and care requirements. Care provided by that person's spouse cannot substitute for the refugee parent's required residence and care. Although this will normally prevent a refugee from meeting the de facto adoption requirements, an appropriate claim under Article 8 may remain available.

The respondent applied for entry clearance to join the sponsor, who had been granted refugee status in the United Kingdom. He claimed to be her nephew, adopted child, or step-nephew.

An Immigration Judge allowed his appeal under paragraph 352D of the Immigration Rules and under Article 8 ECHR. The Entry Clearance Officer appealed only the paragraph 352D decision. At the Upper Tribunal hearing, the challenge to the Article 8 decision was not pursued.

The central issue was whether the respondent was a child of the refugee sponsor for paragraph 352D, in particular whether an asserted de facto adoption had to satisfy paragraph 309A.

1. The Entry Clearance Officer's appeal ultimately failed, because the unchallenged Article 8 decision allowing entry clearance remained in force. However, the Immigration Judge's decision allowing the appeal under the Immigration Rules was set aside for material legal error and remade by dismissing the appeal under those rules.

2. Paragraph 352D requires the applicant to be the child of the parent who has been granted asylum. The relevant parent was therefore the sponsor, not her husband, who had not been granted refugee status.

3. The definition of parent in paragraph 6 is exhaustive despite its use of the word “includes”. An adopted child may fall within paragraph 352D because the exclusion concerning paragraphs 297 to 303 does not extend to paragraph 352D.

4. A de facto adoption for paragraph 352D has only the meaning given by paragraph 309A. The Tribunal rejected the submission that a less demanding, ordinary form of de facto adoption could suffice for refugee family reunion. A contrary construction would undermine safeguards against children being transferred between adults without proper protection and would create an unjustified distinction between refugees and non-refugees.

5. The sponsor had to meet paragraph 309A's residence and care conditions herself. The husband's care could not be counted in her place. The Immigration Judge gave no sustainable reason for finding that the sponsor had lived with the child for the required 12 months immediately before the entry-clearance application. The respondent had therefore not established a paragraph 309A de facto adoption or status as the refugee sponsor's child under paragraph 352D.

6. The Tribunal declined to direct the period of entry clearance under section 87(1) of the Nationality, Immigration and Asylum Act 2002. That period was a matter for the Entry Clearance Officer.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer's appeal was dismissed overall. The Tribunal set aside the Immigration Judge's decision under the Immigration Rules and remade it by dismissing the appeal under those rules, while leaving the unchallenged Article 8 decision in force: [2011] UKUT 378 (IAC).
• Immigration Judge: Allowed the respondent's appeal under paragraph 352D and Article 8 ECHR. The Entry Clearance Officer challenged only the paragraph 352D ruling.