The case of TY (Overseas Adoptions – Certificates of Eligibility) Jamaica [2018] UKUT 197 (IAC) involves the complex interplay between the Immigration Rules and international adoption law. It is a must-read for anyone involved in applications or appeals in this area.

The case is also authority for the proposition that concessions made by appellants’ representatives before the First-tier Tribunal cannot bind different representatives before the Upper Tribunal, or the Upper Tribunal itself.

TY’s predicament

After his mum died in 2010, eight-year-old TY had nobody to look after him in his native Jamaica. At the time of her death he was living with his grandmother, a woman left part-paralysed by a stroke and who herself required care.

TY’s aunt, a British citizen, had been sending money to support him, and called him on a regular basis from the UK to check on his progress. She commenced adoption proceedings in Jamaica in 2011 with a view to bringing him to the UK. He was formally adopted under Jamaican law in December 2014.

On the UK side, TY’s aunt had been vetted and approved as the applicant’s adopter and issued with a Certificate of Eligibility. This is the green light from the UK authorities that a person based in the UK can start the international adoption process.

Jamaican adoptions in UK law

When this process started, Jamaica was on the Adoption (Designation of Overseas Adoptions) Order 1973 (SI 1973 No. 19). This order provided an approved list of countries whose adoptions were recognised in the UK.

By the time the adoption was completed, the previous order had been replaced by the Adoption (Recognition of Overseas Adoption) Order 2013 (SI 2013 No. 1801). Jamaica was not on the new list.

This meant that TY’s adoption was not recognised under UK law, which was a problem in terms of getting permission for TY to live in the UK. Non-lawyers might suppose that a British citizen would have no problem bringing an orphaned relative to live with them in this country, formally adopted or not, but the Rules operate otherwise.

Prospective adoption under the Immigration Rules

There is still a route for a child seeking limited leave to enter the United Kingdom for the purpose of being adopted (i.e. where the formal adoption has not yet taken place, either at all, or as recognised under UK law) under paragraph 316A of the Immigration Rules.

This is not to be confused with the case of a child seeking leave to enter as the adopted child of a parent under immigration rule 310. That route would be appropriate where an adoption recognised by UK law had already taken place.

Proceedings in the tribunal

Hearing an appeal against the initial refusal of the Entry Clearance Officer in Sheffield, the First-tier Tribunal appears to have dealt with the application as one made under rule 310. As TY had not been legally adopted under UK law, the appeal was bound to fail on this basis.

The judge appears to have had limited assistance from TY’s then representative at the initial hearing, who offered a concession that TY could not meet the requirements of rule 316A, and from the Home Office Specialist Appeals Team which suggested in a Rule 24 response that the two rules “essentially concerned” the same issue.

This suggestion appears to have irked the Rt. Hon. Lord Boyd, giving reasons for allowing the appeal in the Upper Tribunal:

In our judgement, the determination was fatally flawed by applying the incorrect – and different – part of the Rules. Paragraph 316A is not ‘ essentially concerned’ with the same issue at all.

The Upper Tribunal found that TY met the requirements of rule 316A, paying particular attention to the fact that a Certificate of Eligibility had been issued to his prospective adopter by the UK authorities.

Notwithstanding the confusion created by the concession by TY’s representative, the decision of the First-tier Tribunal judge is deprecated for arriving at an outcome which would essentially have left the appellant to “become feral”.

Guidance issued

In cases where adoption is not recognised in UK law, the Upper Tribunal provides the following guidance

1. The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued.
2. The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it.
3. Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted.
4. The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility.

In a case where representatives from neither side appear to have covered themselves in glory at various stages of proceedings, Kathryn Cronin of Garden Court Chambers, counsel for TY before the Upper Tribunal, is singled out for particular praise (paragraph 60).