United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/12111/2015

 

 

THE IMMIGRATION ACTS

 

 

Before

 

UPPER TRIBUNAL JUDGE blum

 

 

Between

 

AS

(anonymity direction MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

 

 

CONSENT TO WITHDRAWAL

 

1.       The Entry Clearance Officer (Respondent), by means of the update/skeleton argument dated 25 September 2017, has decided to withdraw the decision of 30 October 2015 refusing the Appellant's entry clearance application because, on the totality of the evidence, it is now accepted [1] that the Appellant meets the requirements for entry clearance under paragraphs 309A and 310 of the immigration rules (HC 395).

 

2.       The Respondent has invited the Upper Tribunal to consider whether it should exercise its discretion and allow for the withdrawal of the Respondent's case from its own jurisdiction with reference to SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 64 (IAC). In a letter dated 27 September 2017, received by the Upper Tribunal on 28 September 2017, the Appellant's legal representatives indicated that the Appellant agreed to the Respondent's withdrawal.

 

3.       In directions issued to both parties on 9 October 2017 the Upper Tribunal indicated its preliminary view that there was no need for a further hearing and that the Upper Tribunal would consider whether to exercise its discretion to allow the Respondent to withdraw her case on the basis of the documents provided by the parties, including the Appellant's representations contained in the letter dated 27 September 2017. Both parties were given until Friday 13 October 2017 to make representations as to whether they agree to this proposed course of action. The Upper Tribunal received a further letter from the Appellant's representatives, dated 12 October 2017, agreeing to the proposed course of action, and repeating their view, expressed in their earlier letter, that the Respondent's update/skeleton argument represented a full and accurate rendering of the law and its application regarding the entry of de facto adopted children to the UK. There were no further representations from the Respondent.

 

4.       Pursuant to Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and having regard to the documentation before me and the representations of the parties, and in light of the Respondent's decision to withdraw the underlying decision refusing entry clearance on the basis that the requirements of the immigration rules have been met, I give my consent to the withdraw of the ECO's case.

 

5.       Given the history of this matter and the issues involved, and having regard to TPN (FtT appeals - withdrawal) Vietnam [2017] UKUT 295 (IAC), I now provide a brief outline of the reasons for my decision.

 

Factual background

 

6.       The Appellant was born in November 2009. NS and RN are his aunt and uncle (RN's brother is the Appellant's biological father). NS and RN are also the Appellant's sponsors in his entry clearance application as his 'de facto adoptive parents' as described in paragraph 309A of the immigration rules (HC 395). On 13 August 2015, the Appellant applied for entry clearance under paragraph 310 of the immigration rules as a child who had undergone a 'de facto' adoption.

 

7.       NS and RN are unable to have children of their own. In 2009 they were informed by RN's brother that his wife was pregnant with their 2 ^nd child. Because RN's brother and his wife were struggling financially, and because of her health issues, they offered the Appellant to NS and RN. A guardianship appointment was made in respect of NS and RN on 13 February 2010. An earlier application and subsequent appeal was unsuccessful because neither NS or RN were British citizens (as they were both PBS migrants the application was not made under paragraph 310) and because immigration judge Bennet was not satisfied there had been a genuine transfer of parental responsibility.

 

8.       NS and RN naturalised as British citizens in 2013. In November 2013 they returned to Pakistan to undertake the Appellant's full-time care and live with him. Guardianship and permission to relocate with the Appellant was confirmed by a Pakistani Court on 7 April 2014. On 13 August 2015, the Appellant applied for entry clearance on a de facto adoption basis.

 

The refusal of entry clearance and the First-tier Tribunal decision

 

9.       The Respondent refused the application on the basis, inter alia, that there had not been a de facto adoption, and that there was no Certificate of Eligibility, required in the circumstances described in paragraph 309B of the immigration rules (with reference to the Adoption and Children Act 2002 (ACA 2002) and the Adoptions with a Foreign Element Regulations 2015). The decision (which was a refusal of a human rights claim) was appealed to the First-tier Tribunal but the First-tier Tribunal, in a decision promulgated on 13 June 2017, dismissed the appeal.

 

10.   It is not necessary to consider in any detail the First-tier Tribunal's decision. It was agreed by both representatives at an 'error of law' hearing in the Upper Tribunal (permission having been granted by the First-tier Tribunal on 6 July 2017) before myself on 1 September 2017 that the First-tier Tribunal decision was infected by material legal errors (a conclusion with which I expressed complete agreement). In a decision promulgated on 7 September 2017 I gave a brief decision identifying the various material legal errors committed by the First-tier Tribunal judge. The reasoning contained in this judgment is annexed to this decision. Given the relative complexity of issues the matter was adjourned to enable the Respondent's representative to obtain instructions from the relevant policy department and for further evidence to be gathered in preparation for a de novo hearing before the Upper Tribunal.

 

11.   On 25 September 2017, the Upper Tribunal received the Respondent's update/skeleton argument indicating that she was withdrawing the refusal of entry clearance because, on the totality of the evidence provided post October 2015, the Respondent now accepts that the Appellant meets the requirements of the immigration rules, and setting out broad reasons for this conclusion.

 

Legal framework

 

12.   The principles issues in contention related to the proper interpretation of paragraphs 309A and 309B of the immigration rules. At the date of the Respondent's decision these rules read:

 

309A. For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:

 

(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and

 

(b) during their time abroad, the adoptive parent or parents have:

 

(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and

 

(ii) have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.

 

309B. Inter-country adoptions which are not a de facto adoption under paragraph 309A are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. As such all prospective adopters must be assessed as suitable to adopt by a competent authority in the UK, and obtain a Certificate of Eligibility from the Department for Education, before travelling abroad to identify a child for adoption. This Certificate of Eligibility must be provided with all entry clearance adoption applications under paragraphs 310-316F.

 

13.   Section 83 of the Adoptions and Children Act 2002 (ACA 2002), as amended by the Children and Adoption Act 2006, reads,

 

Restriction on bringing children in

 

(1)    This section applies where a person who is habitually resident in the British Islands (the "British resident")

 

(a)           brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or

 

(b)           at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time.

 

The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

 

(2)    But this section does not apply if the child is intended to be adopted under a Convention adoption order.

 

Analysis

 

14.   The Respondent accepts that the applicable version of paragraph 309B was that in force when the entry clearance application was made in August 2015, as the updated version that came into force on the 24 November 2016 (as inserted by HC 667) only applies to applications made on or after 24 November 2016.

 

15.   The Respondent accepts that the scenarios covered by the provisions of paragraphs 310 to 316F of the immigration rules are (a) de facto adoptions, (b) where a child is adopted outside the UK according to a law that is recognised by the UK; (c) where a child is entering for the purpose of adoption; and (d) Hague Convention adoptions.

 

16.   The Respondent accepts that the only circumstances in which a Certificate of Eligibility is required are those where an adoption has taken place less than 12 months before the date on which the child will be entering the UK, and where a prospective adopter has gone overseas for a meeting with a child identified as suitable for them to adopt and whom they are now bringing into the UK for an adoption in the UK. This flows from the specific statutory requirements in s.83(1) of the ACA 2002, read with the Adoptions with a Foreign Element Regulations 2005. I note from the facts of this case that the sponsors had not adopted the Appellant in Pakistan and they did not intend obtaining an adoption order but a Special Guardianship Order (SGO) in the UK, which can only be applied for once a child is present in the UK.

 

17.   Significantly, an adoptive parent who meets the requirements of paragraph 309A(a) & (b) is not habitually resident in the UK at that point and is therefore not caught within the jurisdictional element of s.83(1). This approach is consistent with the majority decision of the Supreme Court in B (A child), Re [2016] UKSC 4. S.83 applies when the adoptive parents and the adoptive child do not share the same habitual residence. As a result, the question of "habitual residence" does not arise in this case, or indeed in this class of cases, by virtue of compliance with the temporal and residency requirements in the immigration rules. The sponsors did not therefore have to produce a Certificate of Eligibility.

 

18.   The Respondent accepts that the requirement of paragraph 309A(b)(i) should be interpreted flexibly and, on the facts of this case, there was no dispute over the breaks in residence declared by the sponsors during the time residing in Pakistan since November 2013. I note that paragraph 309A simply requires that the de facto adoptive parents are or have been 'living abroad' and that there is no stricture that their residence is 'continuous'.

 

19.   The Respondent accepts that recognition of a de facto adoption for immigration purposes does not confer any legal status upon the relationship between the child and sponsors. The Respondent emphasises that where a child is granted Leave To Enter on the basis of a de facto adoption the sponsoring parents should notify their local social services of the child's presence and their circumstances. Section 14A(7) of the Children Act 1989 provides that, before any application for a SGO is lodged with the court, the proposed guardians must give notice to the local authority 'in whose area [the child] is ordinarily resident'. When that notice is given, the proposed guardians are assessed by the local authority. On the facts of this case the sponsors intimated their intention to seek a SGO in respect of the Appellant from an English court as such an order was congruent with their faith.

 

20.   The Respondent acknowledges that the definition of "a parent" in the immigration rules includes where a parent is the subject of a de facto adoption in accordance with the requirements of paragraph 309A. It is also clear that the terms of Appendix FM and Appendix FM-SE (both in maintenance thresholds and evidential requirements) are not directly applicable to an application under paragraph 310.

 

21.   Given the totality of the evidence that is now available in this case, and having regard to the previous decision of Judge Bennett, the Respondent accepts that the sponsors have resided in Pakistan with the Appellant for the required period of 12 months before the application (19 September 2014 to 19 September 2015) and have resided together in Pakistan for 18 months prior to the application (19 March 2014 to 19 September 2015). The Respondent further accepts, based on all the evidence, including the reports of Sadia Tehseen (15 April 2017) and Dr Khan (8 August 2015), that the sponsors have discharged the burden of demonstrating that they assumed parental responsibility for the child for the requisite period and that there has been a genuine transfer of parental responsibility. In reaching this conclusion the Respondent has specifically considered the decision of judge Bennett and the evidence of the biological parents clarifying paragraph 3 of their previous statutory declaration dated 20 April 2010. I agree with the Respondent's analysis contained in her skeleton argument dated 25 September 2017.

 

22.   In respect of paragraph 310 of the immigration rules the Respondent accepts that all the requirements have been met including the maintenance requirements. I agree with this analysis. The financial evidence properly considered indicates that the sponsors can adequately maintain the Appellant in the UK. The Respondent specifically notes NS's consistent monthly earnings from his company as well as his dividend payments evidenced at £12,000 (30 June 2015 to 18 March 2016) and £16,500 (31 August 2016 to 3 April 2017), which are also consistent with the historical financial evidence. The Respondent additionally notes the income derived from the renting of the UK property (£10,800 in the last financial year). Applying Jahangara Begum and Others (maintenance - savings) Bangladesh [2011] UKUT 246 the Respondent accepts that NS has had surplus money in his account in excess of £6000 since August 2016 as well as the potential to earn more money from his company by being present in the UK. The Respondent finally notes the evidence from the application that it is proposed that the current tenant will move out from the rented property once the Appellant is granted entry clearance. The accommodation requirements are therefore met.

 

Conclusion

 

23.   I am satisfied that the Respondent's update to the Tribunal/skeleton argument, as summarised above, sets out a clear and accurate statement of the effects of section 83 of the ACA 2002, and paragraphs 309A and 309B (as it was) of the immigration rules, and that the requirements of paragraph 310 are met in this case. In the circumstances I am entirely satisfied that it is appropriate to consent to the Respondent's withdrawal of her case before the Upper Tribunal.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the Appellant in this appeal is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

10 November 2017

 

Signed Date

 

Upper Tribunal Judge Blum

 

 

ANNEX: REASONING IN 'ERROR OF LAW' DECISION, 7 September 2017

 

DECISION AND REASONS

 

1.       This is an appeal against the decision of Judge of the First-tier Tribunal R Hussain (the judge), promulgated on 13 June 2017, dismissing the Appellant's appeal against the Respondent's decision taken on 30 October 2015 to refuse his application for entry clearance.

 

2.       At the date of the judge's decision the Appellant, a male national of Pakistan, was 7½ years old. NS and RN are the Appellant's aunt and uncle (RN's brother is the Appellant's biological father) and the Appellant's sponsors in his entry clearance application. They are, it is claimed, his 'de facto adoptive parents' as described in paragraph 309A of the immigration rules (HC 395).

 

3.       On 13 August 2015 the Appellant applied for entry clearance under paragraph 310 of the immigration rules (HC 395) as a child who had undergone a 'de facto' adoption pursuant to paragraph 309A of the immigration rules, and under paragraph 297 of the immigration rules. The application was accompanied by a detailed covering letter from the Appellant's solicitors identifying the various documents provided in support of the application, the relevant legal framework, and describing the background to the application, as summarised below.

 

4.       NS and RN have been married since 1996. They moved to the UK in 2007, NS as a Points Based Migrant and RN as his dependent. NS and RN are unable to have children of their own. In 2009 they were informed by RN's brother that his wife was pregnant with their 2 ^nd child. RN's brother that his wife were however struggling both financially and as a result of her health issues. As a consequence they offered the Appellant to NS and RN. It is claimed that RN assumed care for the Appellant when he was 2 days old and that the Appellant has never lived with his birth parents and has never known them as his parents. An adoption deed was created on 8 January 2010 although this has little legal effect given that adoption is forbidden under Islamic law (instead there exists the concept of kefalah (Islamic guardianship) which provides children with a permanent kafil responsible for taking care of them until they reached adulthood). A guardianship appointment was made in respect of NS and RN on 13 February 2010.

 

5.       In 2010 NS and RN applied for entry clearance for the Appellant to join them in the UK as their adopted child. At the time of this application NS was resident in the UK as a Tier 2 Migrant and RS was resident as his dependent. This application was refused on 24 May 2010 and an appeal was dismissed on 27 January 2011 by Judge of the First-tier Tribunal N J Bennet.

 

6.       NS and RN naturalised as British citizens in 2013. In November 2013 they both returned to Pakistan to undertake the Appellant's full-time care and live with him. Guardianship and permission to relocate with the Appellant was confirmed by a Pakistani court on 7 April 2014. On 13 August 2015 the Appellant applied for entry clearance on the basis that the requirements for a de facto adoption of him by NS and RN were met.

 

7.       The basis for the Respondent's refusal of entry clearance is set out in the decision letter dated 30 October 2015 and an Entry Clearance Manager's review dated 15 July 2016. The Respondent did not accept that there had been a de facto adoption on the somewhat cryptic basis that the sponsor's circumstances were "not necessarily a true reflection" of their actual circumstances. The Respondent referred to inconsistencies between the previous application and the present application as to whether the Appellant had been living with his biological parents. The Respondent was not satisfied that the sponsors demonstrated that they had sole responsibility for the Appellant's care. The absence of a Certificate of Eligibility, required in the circumstances described in paragraph 309B of the immigration rules, was said to be fatal to the application (with reference to the Adoption and Children Act 2002 (ACA 2002) and the Adoptions with a Foreign Element Regulations 2005). Nor was it accepted that there were any serious and compelling or other considerations such as to satisfy paragraph 297(i)(f) of the immigration rules. Nor was the Respondent satisfied that there would be adequate maintenance for the Appellant without recourse to public funds. The application was finally refused on the basis that there were no exceptional circumstances capable of giving rise to a grant of entry clearance under Article 8 ECHR.

 

8.       At the appeal hearing on the 26 April 2017 the judge considered 3 bundles of documents which included, inter alia, the application covering letter, the application form and supporting documentation, a social work report in respect of the Appellant written by Sadia Tehseen and dated 15 April 2017, a report by Dr Jonathan Fluxman in respect of the state of health of the Appellant's mother dated 22 April 2017, and a medical report and prescription for the Appellant's paternal grandmother dated 14 April 2017. NS gave oral evidence at the hearing. At the end of the hearing Ms Cronin was given permission to adduce further submissions on the issue of habitual residence and paragraph 309B and to provide some missing bank documents.

 

9.       The judge considered the decision by Judge Bennett as his starting point, pursuant to Devaseelan [2002] UKIAT 00702. Despite the sponsors' claim to have relocated to Pakistan in November 2013 the judge found that NS continued to be habitually resident in the UK because his business operated from the UK and because he continued to own residential property in the UK, pay UK tax and regularly returned in connection with his business. The judge found that NS appeared to have "a far greater presence in the UK" then he claimed. As a result of his habitual residence the judge found that NS was required under paragraph 309B to have obtained a Certificate of Eligibility pursuant to the Adoptions with a Foreign Element Regulations 2015 demonstrating that he and RN had been suitably assessed, even if NS was also habitually resident in Pakistan. The judge rejected any reliance by the Appellant on paragraph 310(i)(g) because he considered that this envisaged a situation where the adoptive parents were subject to some form of immigration control and, as both sponsors were British citizens, they could not seek admission to the UK for settlement. The judge found there was no genuine transfer of responsibility from the Appellant's birth parents to the sponsors having regard to the social work report. The judge attached little weight to the medical opinion of Dr Jonathan Fluxman because there had been no physical examination by Dr Fluxman and because of a significant gap in the information provided.

 

10.   Given the Appellant's circumstances in Pakistan the judge concluded that there were no serious and compelling family or other considerations making his exclusion from the UK undesirable. The judge additionally concluded, having regard to the financial documents before him he believed he was entitled to consider, that the Appellant would not meet the adequate maintenance requirement. In so concluding the judge also found that the bank statements before him did not cover the actual date of the decision. Given that a rental income relied on by the sponsors derived from the property in which it was proposed that the Appellant reside, the judge concluded that the manner in which the maintenance and accommodation requirements were said to be met appeared to be mutually exclusive. The judge finally considered article 8 ECHR. While being satisfied that family life existed in so far as the Appellant lived as part of the sponsors' family in Pakistan, the judge found there were no compelling circumstances not recognised under the immigration rules sufficient to warrant a grant of leave to remain outside of the immigration rules. In so concluding the judge observed that the refusal of entry clearance did no more than preserve the status quo and that there was an absence of evidence that the Appellant or his sponsors would face any significant difficulties in maintaining and furthering their family life with each other either by continuing the current arrangements or by making a further application for entry clearance having obtained a Certificate of Eligibility.

 

11.   The Appellant sought permission to appeal the judge's decision and permission was granted by Judge of the first-tier Tribunal JM Holmes on 6 July 2017. It is not necessary for me to rehearse in any detail the grounds because both Mr Jarvis and Ms Cronin agreed at the outset of the "error of law hearing" that the judge materially erred in law, and that it would be necessary to have a de novo hearing. Having considered in detail the decision under appeal I indicated my preliminary view, independently reached, that the judge had indeed committed a number of material legal errors rendering the decision unsafe. In these circumstances it is not necessary for me to embark on a lengthy examination of the decision and the following points are a summary of the more egregious errors committed by the judge.

 

12.   Although recording Ms Cronin's submissions as to the applicability of the version of paragraph 309B in force when the Respondent's decision was made it is, at the very least, unclear whether the judge did apply that version. In setting out the relevant legal framework at [2] the judge only includes the iteration of paragraph 309B that came into force on the 24 November 2016 (as inserted by HC 667). It is however apparent from the terms of HC 667 that the new version of paragraph 309B only applies to applications made on or after 24 November 2016. Having set out the version in existence at the date of the decision at [16], the judge then considers guidance as to the construction of the immigration rules established in Mahad v ECO [2010] 1 WLR 48 (at [17]) and finds that the purpose behind s.83 of the ACA 2002 (which criminalises the bringing into the UK of a child habitually resident outside the British islands by a person who is habitually resident in the British islands for the purpose of adoption) is to prevent persons habitually resident in the UK from travelling abroad and adopting a child without being assessed as suitable (at [18]). Despite the wording at the start of paragraph 309B suggesting that the need for a Certificate of Eligibility does not apply to de facto adoptions, the judge fails to adequately grapple with that construction or the arguments advanced by Ms Cronin to the effect that the sponsors had no intention of adopting the Appellant in the UK and that s.83 therefore does not apply to them. Nor is it readily apparent that the judge appreciated that the sponsors were not seeking to adopt the Appellant in the UK but to apply for a special guardianship order. It was incumbent on the judge to engage with these submissions and to give reasons for rejecting the interpretation argued for by the Appellant. His failure to do so constitutes a material error of law.

 

13.   In concluding that, as British citizens, neither NS nor RN could seek admission to the United Kingdom for the purpose of settlement, the judge failed to consider the definition of 'settled in the United Kingdom' in paragraph 6 of the immigration rules which requires a person to be ordinarily resident. The failure by the judge to consider paragraph 6 of the immigration rules constitutes a material error of law.

 

14.   In concluding that NS appeared to have a far greater presence in the UK than claimed [14] the judge failed to take into account the totality of the evidence before him including the schedule at page 96 of the Appellant's main bundle indicating that NS had only been absent from Pakistan and in the UK for 65 days and that he had lived in Pakistan with the Appellant for 3 ½ years, and the nature of the transactions in NS's bank account between November 2013 and October 2015 (composed of Internet transactions or transactions debited to his accounts immediately after his short visits). Nor was any satisfactory consideration given by the judge to the evidence before him supporting the assertion that there had been a genuine transfer of parental responsibility. In concluding that NS had "a far greater presence in the UK than claimed" the judge additionally acted in a procedurally unfair manner by failing to give NS an opportunity to deal with this observation, which intimated dishonesty on the part of NS.

 

15.   The judge additionally concluded (at [22]) that there were no bank statements covering the actual date of decision and that, as a result the judge was not satisfied that the sums in the bank statements were actually available on the date of decision. There is however no requirement in the immigration rules that there must be documentary evidence showing the sums available to an applicant on the actual date of an ECO decision. Given that financial documents would have to be obtained prior to an application being made it would usually be impossible to provide documentary evidence of the sums actually available on the date of an entry clearance decision. To the extent that the judge appears to have required documentary evidence of the sums available on the actual date of decision, he erred in law. The judge has additionally erred in law by restricting his consideration of the rental income received by the sponsors to the tax year 2015 - 2016. This is because the appeal is a human rights appeal following the significant amendments wrought to the Nationality, Immigration and Asylum Act 2002, which came into force on 6 April 2015. Although a First-tier Tribunal judge was previously able to consider only the circumstances appertaining at the date of the decision to refuse entry clearance, this restriction was lifted in respect of human rights appeals after 6 April 2015. As such the judge misdirected himself in law at [7] and at [22] in stating that he was constrained at looking at matters as at the date of decision. This constitutes another material error of law. I am additionally satisfied that the judge failed to consider the sponsors' savings income held in their savings account, a relevant consideration, when determining that the income support threshold was not met.

 

16.   I am additionally satisfied that the judge failed to take adequate and holistic account of both the social worker report prepared by Sadia Tahseen and the medical opinion prepared by Dr Fluxman. The social worker noted the modest nature of the biological parents shared home, the biological father's limited earnings, that the family struggled to meet their daughter's medical and educational costs, and the presentation of the biological mother's state of health. Nor has the judge given adequate consideration to Dr Fluxman's medical opinion given that the medical expert had before him medical reports prepared by the biological mother's doctor and unchallenged diagnostic blood and liver function tests. These were relevant considerations that the judge ought to have taken into account in determining what weight he could attach to the medical opinion. The judge's failure to take into account the unchallenged and independent evidence relating to the biological mother's state of health constitutes a material error of law, as does his failure to holistically consider the totality of the evidence produced by the Appellant, including that of the sponsors, suggesting that the biological mother may suffer from a serious condition rendering her incapable of looking after the Appellant.

 

17.   I am finally satisfied that the judge's assessment of the proportionality of the refusal of entry clearance decision failed to take sufficient account of the strength of the sponsors' links with the UK and their status as British citizens, or to the difficulties that they would experience if they had to relinquish their home and business in the UK and relocate to Pakistan.

 

18.   Having accepted that the judge's decision was vitiated by various significant legal errors Mr Jarvis was also in substantial agreement with Ms Cronin as to the appropriate way forward with this appeal. Given the complexity of the issues in contention and his inability, as at the date of the hearing, to obtain instructions from the relevant policy department, Mr Jarvis invited me to set aside the judge's decision in full and adjourn the matter to a future date to enable the Tribunal to fully consider the relatively complex legal arguments. Ms Cronin indicated that, to her knowledge, there was no reported Family Law decision relating to the interpretation of s.83 of the ACA 2002. Having considered the submissions from the parties and having regard to the issues in contention I consider it appropriate to adjourn the matter to be heard de novo before the Upper Tribunal.