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On appeal from: 2012 EWCA Civ 563.

The question in this appeal was whether the appellant could be considered an ‘adopted child’ within the definition contained in the Immigration Rules, para 352D. The appellant was born in Somalia in 1994. At a young age her father died, and she was separated from the rest of her family during the fighting. Around 2002 her brother-in-law took her in under the Islamic procedure known as ‘kafala’ (a legal process which some consider similar to adoption). In November 2007, her brother-in-law came to live in the UK. He was granted asylum and applied for his family and the appellant to join him in the UK. The appellant was refused and remained in Somalia to appeal the decision. At the appeal, evidence was accepted that kafala is a form of inclusion in the family, and only falls short of full adoption as the child does not enjoy a right of inheritance. The appeal was allowed under para 352D and ECHR, art 8. The Secretary of State appealed the decision to the Upper Tribunal and was allowed the appeal in respect of the definition of adoption in para 352D. However, the art 8 grounds of the lower appeal was upheld. The Court of Appeal confirmed the UT appeal decision and consequently the appellant was granted entry clearance and arrived in the UK in 2012. This appeal was in respect of para 352D.

The Supreme Court dismissed the appeal. The correct construction of the rules was well established. Para 352D did not cover the appellant’s case and could not be held to do so. Kafala may be considered ‘adoption’ for some purposes; however, the definition of ‘adopted child’ in the rules was more restrictive. ‘De facto adoption’ and the ‘best interests of the child’ principles did not cover this specific case either. There was no obligation that goes further to protect the appellant than that under human rights law. It was unnecessary to decide whether this amounted to unlawful discrimination because the appellant’s rights applied equally to her position in the UK, regardless of the basis for her admission.

For judgment, please download: [2013] UKSC 81
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII