TY (a minor) v The Entry Clearance Officer in Sheffield

Where a child seeks entry clearance for adoption under paragraph 316A of the Immigration Rules, an unrecognised foreign adoption does not itself prevent the child satisfying that route. Paragraph 316A is distinct from the serious and compelling test in paragraph 297.

A Certificate of Eligibility is the definitive product of the statutory adoption assessment. Although it does not determine every immigration requirement, the Tribunal should treat adoption law and the Rules as a unified scheme and should be slow to depart from the underlying circumstances addressed by the certificate.

The requirement that a child has lost, broken, or intends to break ties with the family of origin concerns a fundamental change in care arrangements. It does not ordinarily require all family contact or kinship links to end.

The appellant, a Jamaican minor, sought entry clearance to join his British-resident maternal aunt, who had obtained a Jamaican adoption order. Jamaica was no longer listed for recognised overseas adoptions in the United Kingdom. The sponsor had nevertheless completed the United Kingdom adoption assessment process and held a Certificate of Eligibility.

The Entry Clearance Officer refused the application. The First-tier Tribunal dismissed the appeal after treating it under paragraph 297 of the Immigration Rules and finding that paragraph 316A could not be met. The appellant appealed to the Upper Tribunal on human-rights grounds.

The central issue was whether the First-tier Tribunal had applied the correct immigration route and properly understood the legal significance of the Certificate of Eligibility and the proposed United Kingdom adoption.

1. Appeal allowed. The First-tier Tribunal made a material error of law. It applied the wrong and materially different part of the Immigration Rules, and its decision was set aside.

2. Paragraph 316A, rather than paragraph 297, governed a child seeking limited leave to enter for adoption where the foreign adoption was not recognised. The fact that the Jamaican adoption was neither a Hague Convention adoption nor a recognised overseas adoption did not bar a fresh adoption in the United Kingdom under paragraph 316A. A concession by counsel that paragraph 316A was not met could not relieve the Tribunal of its duty to apply the law correctly.

3. The adoption agency assessment, panel process and Certificate of Eligibility were directed to the sponsor's suitability to adopt under United Kingdom law. The certificate was the definitive result of that fact-finding and assessment. It did not displace the separate requirements in paragraph 316A, but adoption law and the Immigration Rules formed a unified scheme. The Immigration and Asylum Chamber should therefore be slow to depart from the circumstances underlying the certificate.

4. Paragraph 316A(vii) required a fundamental change in the arrangements for the child's care. It guarded against a nominal adoption which left the existing arrangements effectively unchanged. It did not require the child to cease all contact with an incapable grandmother or adult siblings.

5. On the evidence, the sponsor had sole responsibility, the grandmother could not provide appropriate care, parental responsibility had genuinely transferred, and the proposed adoption was genuine rather than a device to secure admission. The remaining requirements of paragraph 316A were met. A refusal contrary to the Rules engaged and breached Article 8, since family life between prospective adopters and adoptive children may require the state to permit its development.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal's decision for material error of law, and remade the decision by allowing the appeal on human-rights grounds.
• First-tier Tribunal: Dismissed the appellant's appeal in a determination promulgated on 27 June 2017.
• Entry Clearance Officer and Entry Clearance Manager: Refused entry clearance on 14 October 2015 and, on review, on 8 August 2016.