AA (Somalia) v Entry Clearance Officer (Addis Ababa)

A child cared for under the Islamic institution of Kafala is not the child of an adoptive parent for the purpose of paragraph 352D of the Immigration Rules unless the requirements governing a de facto adoption in paragraph 309A are satisfied. The Rules must be read sensibly according to their natural and ordinary meaning. Their language cannot be rewritten to achieve a fairer result.

General international principles concerning children’s best interests, family reunion and non-discrimination do not enlarge the Rule where no specific international obligation requires that result. Any Convention rights arising after admission must nevertheless be respected when discretionary leave is granted or extended.

AA, a Somali orphan, became part of her sister and brother-in-law’s household under the Islamic institution of Kafala. Her brother-in-law later obtained refugee status in the United Kingdom. Entry clearance under paragraph 352D of the Immigration Rules was granted to two other girls in the household but refused to AA.

The First-tier Tribunal allowed AA’s appeal under paragraph 352D and article 8 of the European Convention on Human Rights. The Upper Tribunal reversed the decision under the Rules but upheld it under article 8. AA consequently entered the United Kingdom, although her immigration status remained potentially less advantageous than status obtained under the Rules.

The Court of Appeal dismissed her appeal in [2012] EWCA Civ 563. The issue before the Supreme Court was whether paragraph 352D extended, or should be treated as extending, to a child for whom parental responsibility had been assumed through Kafala.

1. Appeal dismissed unanimously. Lord Carnwath delivered the judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agreed. Paragraph 352D did not cover AA’s relationship with her brother-in-law.

2. The Immigration Rules are construed sensibly according to the natural and ordinary meaning of their words. The Secretary of State’s objectively discerned intention must be found in the language used, rather than in supposed policy considerations. Although paragraph 309A was ill-adapted to refugees from unstable or war-torn countries, the court could not legitimately rewrite the Rules to produce a fairer result.

   Paragraph 6 specifically confines an “adoptive parent” to an adoption recognised by the United Kingdom or a de facto adoption satisfying paragraph 309A. The inclusive form of the definition of “parent” did not admit additional forms of de facto adoption. Nor did the words “unless the contrary intention appears” enlarge the definition of adoption. Kafala therefore could not bring AA within paragraph 352D where paragraph 309A was not satisfied.

3. The domestic and international recognition of children’s best interests did not establish a specific obligation covering AA’s position. The court approved the conclusion in MK (Somalia) that international materials disclosed increasing flexibility in the concept of family but no precise customary international law obligation prescribing a state’s treatment of de facto adoption. Earlier policy concerning Somali family reunion likewise treated flexibility as a matter for exceptional consideration rather than legal obligation.

4. It was unnecessary to decide whether AA’s less favourable treatment could amount to unlawful discrimination. Any relevant rights applied to her position in the United Kingdom regardless of the basis on which she had been admitted. When granting or extending discretionary leave, the Secretary of State remained obliged to comply with the European Convention on Human Rights, including article 14.

   Lord Carnwath nevertheless criticised the restrictive incorporation of paragraph 309A into a rule concerning refugees. Amendment of the Rules to reflect the Secretary of State’s actual practice and international obligations would provide greater clarity.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court affirmed the construction adopted by the Court of Appeal.

2. Court of Appeal: In [2012] EWCA Civ 563, the court dismissed AA’s appeal and held that the relevant wording of the Immigration Rules was plain and unambiguous.

3. Upper Tribunal: The Secretary of State’s appeal was allowed in relation to paragraph 352D, but the First-tier Tribunal’s decision under article 8 of the European Convention on Human Rights was confirmed.

4. First-tier Tribunal: AA’s appeal was allowed under paragraph 352D and article 8.