MK (Somalia) and others v Entry Clearance Officer and Another: CA 19 Dec 2008

The appellants’ mother had been thrown into a well after resisting attempts to rape her. They had then been cared for by another family member who had, along with her natural children been granted asylum here. They appealed refusal of asylum. They could not bring themselves with rule 27. They said that the sponsor was their de facto family, and that their Article 8 rights were infringed, relying on customary international law. The appellants argued that a ministerial statement as to policy extensions survived the later introduction of new rules.
Held: The statement had not considered de facto adoption. That issue had been addressed under the 2000 Rules which superceded any previous policy, and there was no free-standing policy operating outside the Immigration Rules which accrued to the particular advantage of de facto adoptive children who fall outside paragraph 309A.
However the applicants’ article 8 case had not been properly considered by the AIT, which might find this a compelling case. The case was remitted accordingly.
Maurice Kay LJ concluded: ‘Do these documents establish or evidence an obligation of customary international law that is positively protective of de facto adopted children? In my judgment they do not. At best they illustrate an increasing awareness of the need for a flexible approach to the concept of family but they do not address in terms the question of de facto adoption which, because of its very lack of formality, presents a receiving state with obvious problems of verification. There is no material referred to by Mr Pleming which demonstrates a clear international consensus about the particular problem of de facto adoption – quite the contrary. Whilst there is a perceptible concern that the concept of family, in the context of family reunion, should not be resistant to social and cultural change, I do not consider that there is a precise, identifiable obligation of customary international law that is prescriptive of the national approach to de facto adoption.’

Waller LJ, Thomas LJ, Maurice Kay LJ
[2008] EWCA Civ 1453, Times 11-Mar-2009, [2009] 2 FLR 138, [2009] Imm AR 386, [2009] Fam Law 196
European Convention on Human Rights 8, Immigration Rules 2000
England and Wales
CitedAS (Somalia) and Another v Entry Clearance Officer, Addis Ababa and Another CA 29-Feb-2008
When considering an appeal against the refusal of entry clearance, the court must consider only the circumstances as applied at the date of the refusal. . .

Cited by:
CitedMahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
CitedAA v Entry Clearance Officer (Addis Ababa) SC 18-Dec-2013
The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children, Human Rights

Updated: 11 November 2021; Ref: scu.278981