AA (Somalia) v Entry Clearance Officer - Addis Ababa

Under the Immigration Rules (HC 395), the general interpretation provisions apply to paragraph 352D unless a contrary intention appears. For an adoptive parent, the relevant categories are a UK-recognised legal adoption and a de facto adoption satisfying paragraph 309A. Paragraph 352D creates no separate, broader category for a child who has joined a family through Kafala or another transfer of care. Its requirements are cumulative, so family-unit membership alone is insufficient. The Secretary of State was entitled to adopt that balance, despite the practical rarity of qualifying cases and the international materials relied upon. Article 8 remains available in an appropriate case. A case-specific letter about fees did not establish a general policy outside the Rules.

AA, a Somali child, had lived with Mohamed, her sister’s husband, after separation from her family during the conflict in Somalia. It was common ground that their relationship fell within Kafala, but AA had not been adopted through a legal process recognised in the United Kingdom.

The Entry Clearance Officer refused her application under paragraph 352D. The First-tier Tribunal found that she was part of Mohamed’s family and allowed the appeal under the Rules and, alternatively, under Article 8. The Upper Tribunal rejected the Rules-based conclusion but upheld the Article 8 decision, dismissing the respondent’s appeal.

AA appealed to the Court of Appeal because entry under the Rules would provide a more secure immigration status. The issues were whether paragraph 352D permitted a broader meaning of parent or de facto adoption, and whether a 2007 letter constituted a policy requiring entry clearance.

Lord Justice Davis gave the judgment, with Lord Justice Toulson and Lady Justice Arden agreeing. The appeal was dismissed.

1. Construction of the Rules. The general interpretations in paragraph 6 applied to paragraph 352D unless a contrary intention appeared. In relation to an adoptive parent, paragraph 6 recognised either an adoption by a competent authority in a country whose adoption orders were recognised by the United Kingdom, or a de facto adoption satisfying paragraph 309A. Paragraph 352D contained no separate or broader category of adoption.
2. Cumulative requirements. The six requirements in paragraph 352D were cumulative. Being part of the refugee’s family unit when the refugee left the country of habitual residence satisfied only requirement (iv). It did not establish requirement (i), namely that the applicant was the child of a parent granted asylum. The wording required the applicant to be the child within the meaning of the Rules, rather than merely to be treated as such.
3. Policy and international materials. The fact that few de facto adopted children might satisfy paragraph 309A did not justify departing from the natural meaning of the Rules. The Secretary of State was entitled to take account of competing concerns, including abusive applications and child trafficking. The international materials relied upon did not prevent that approach. Article 8 remained available in an appropriate case, and AA had succeeded on that ground.
4. Authorities. The approach was supported by AS (Somalia) v Entry Clearance Officer Addis Ababa [2008] EWCA Civ 149, MK (Somalia) v Entry Clearance Officer [2008] EWCA Civ 1453, and Entry Clearance Officer Addis Ababa v Mohammed [2011] UKUT 00378 (IAC). The court agreed with and followed the reasoning in MK (Somalia) concerning the application of paragraph 309A.
5. Alleged policy. The argument based on the 6 August 2007 letter had not been advanced in the Upper Tribunal. In any event, the letter was a case-specific response from an Entry Clearance Manager concerning fees. It contained no indication of a general policy operating outside the Rules and could not be elevated into one.
6. The court expressed no concluded view on whether particular Kafala arrangements might constitute de facto adoption under paragraph 309A. That question could depend on the facts, including the permanence or revocability of the arrangement.

1. Court of Appeal (Civil Division): On 1 May 2012, dismissed AA’s appeal from the Upper Tribunal and upheld the interpretation of paragraph 352D.
2. Upper Tribunal (Immigration and Asylum Chamber): The respondent’s appeal from the First-tier Tribunal was dismissed. The Rules-based conclusion was rejected, but the Article 8 conclusion was upheld.
3. First-tier Tribunal: Determination promulgated on 8 September 2010. The appeal was allowed under the Immigration Rules and, alternatively, under Article 8.