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

The Supreme Court considered whether paragraph 352D of the Immigration Rules, which permits the grant of leave to enter to the child of a parent who has been granted refugee status, extends to a child who has been taken into parental responsibility under the Islamic institution of Kafala (a form of de facto guardianship). The court examined the definitions in paragraph 6 of the Rules and the separate requirements for "de facto adoption" set out in paragraph 309A and concluded that the Rules, read sensibly according to their natural and ordinary meaning, did not cover the appellant. The court rejected arguments based on international instruments and non-discrimination as insufficient to alter the plain wording of the Rules, observing that the appellant had been afforded protection under article 8 of the European Convention on Human Rights and that any discrimination concerns could be addressed within that framework. The appeal was dismissed.

Background and facts.

• The appellant, born in Somalia in 1994, became separated from her mother and later lived with Mohamed (her sister's husband), who accepted her as a family member under Kafala. Mohamed was granted asylum in the United Kingdom in 2008 and the appellant's applications for entry clearance were refused, though her adoptive siblings were permitted to come to the United Kingdom.
• The First-tier Tribunal allowed the appellant's appeal under paragraph 352D of the Immigration Rules and under article 8 ECHR, accepting expert evidence that Kafala creates a transfer of parental responsibility analogous to adoption for many purposes.
• The Upper Tribunal allowed the Secretary of State's appeal on paragraph 352D but confirmed the First-tier Tribunal's article 8 decision. Entry clearance was subsequently granted under article 8 and the appellant arrived in the United Kingdom in June 2012.

Nature of the claim and procedural posture. The appellant appealed to the Supreme Court seeking a declaration that paragraph 352D extends to children in the appellant's position (Kafala/de facto adopted children), thus entitling them to entry under the Immigration Rules rather than by discretionary leave under article 8 ECHR. The case reached the Supreme Court from the Court of Appeal ([2012] EWCA Civ 563).

Issues framed by the court.

1. Whether the term "the child of a parent" in paragraph 352D includes a child for whom parental responsibility has been acquired under Kafala.
2. Whether international law or the principle of non-discrimination require a broader interpretation of the Rules to include such children.
3. Whether the Rules should be interpreted or rewritten to avoid disadvantage to children from countries without formal adoption procedures.

Reasoning and conclusions.

• On construction, the court applied settled principles: the Rules are to be read sensibly according to their natural and ordinary meaning as statements of administrative policy. The definition of "parent" in paragraph 6 expressly includes adoptive parents only where adoption is established in accordance with recognized processes or by meeting the requirements of paragraph 309A for de facto adoption. Paragraph 309A's requirements (notably the specified periods of cohabitation and care) are not met in the appellant's circumstances and are ill adapted to many refugee situations; nonetheless the court concluded it was not permissible to rewrite the Rules to produce a fairer result.
• On international obligations, although the court recognised the importance of international instruments and the "best interests" principle, it found no specific international obligation that required treating Kafala children as within paragraph 352D. The court agreed with earlier authority (MK (Somalia)) that there is no clear international consensus imposing such an obligation.
• On discrimination, the court acknowledged the apparent harshness of treating the appellant less favourably than her adoptive siblings. However, it held that any rights against discrimination would apply equally once the appellant was in the United Kingdom and that the Secretary of State must exercise discretion under article 8 consistently with the Convention, so there was no need to reinterpret the Rules.

The court concluded by dismissing the appeal, while observing that it would be preferable for the Rules to be amended to reflect the practices and obligations actually applied in refugee family reunion cases.

Appeal dismissed. The court held that paragraph 352D of the Immigration Rules does not extend to children who have been taken into parental responsibility under Kafala unless the limited requirements for de facto adoption in paragraph 309A are satisfied. The Rules must be interpreted according to their natural and ordinary meaning; international instruments and non-discrimination arguments do not justify rewriting the Rules. The appellant's protection under article 8 ECHR remained available and there was no need to reinterpret the Rules to secure Convention compliance.

First-tier Tribunal allowed the appellant's appeal under paragraph 352D and article 8 (hearing 3 September 2010). On 23 May 2011 the Upper Tribunal (Judge Grubb) allowed the Secretary of State's appeal in respect of paragraph 352D but confirmed the First-tier Tribunal's article 8 decision. Entry clearance was granted on 14 May 2012 and the appellant arrived on 4 June 2012. The matter proceeded via the Court of Appeal ([2012] EWCA Civ 563) to the Supreme Court ([2013] UKSC 81).