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19 DEC 2008

IMMIGRATION: MK (Somalia) (by AH) v Entry Clearance Officer; Joint Council for the Welfare of Immigrants intervening [2008] EWCA Civ 1453

(Court of Appeal; Waller, Thomas and Kay LJJ; 19 December 2008)
The mother of the three children had been killed for resisting rape in Somalia; thereafter the children had been cared for by a maternal aunt until the aunt and two of the aunt's natural children were taken into slavery. The aunt's husband took over caring for the children and two of his own children. Meanwhile, the aunt and one of her children escaped to England, where they were granted refugee status (the other child had died in captivity). Eventually, entry clearance was given to the aunt's husband and the couple's two natural children, but was refused to the three 'adopted' children. The adoption was not recognised as a de facto adoption because the aunt and uncle had not been living with the children together for the previous 18 months, a requirement that would never be met in an asylum case. Formal adoption was not possible in the current situation in Somalia, and was in any case problematic in a Moslem context. The children were currently being cared for in Ethiopia by a remote relative. The aunt appealed the immigration decision on the basis that under the family reunion policy for refugees the children ought to go further than the Immigration Rules, allowing entry clearance in such cases.

There was no freestanding policy operating outside the Immigration Rules, accruing to the advantage of de facto adoptive children who fell outside the Rules. However, the family had a case by reference to Art 8 of the European Convention on Human Rights, which had not received adequate consideration by the tribunal. On the facts as found it struck the court that the case based on Art 8 was compelling.

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