THE UK Government’s hostile environment to immigration is alive and kicking, as a case in the Court of Session in Edinburgh showed yesterday, but it ended with a Scottish judge throwing out the case in strong terms.
Lord Malcolm criticised Home Secretary Priti Patel in the case of a two-year-old Ugandan child who was denied the right to join his adoptive parents here.
The judge not only quashed the Home Office decision but queried why Patel had not entered answers to the petition raised by a Dutch national – the child and his family cannot be named for legal reasons.
In his judgement, Lord Malcolm explained: “In April 2019 the petitioner’s wife, who is Ugandan, adopted a child who is also a citizen of that country. At that time, and also when these proceedings were raised, she and her adopted son lived in Uganda.
“The child was born in September 2018. His natural mother died when he was two days old. The petitioner and his wife also have two biological children.
“In November 2019 the petitioner’s wife, along with the three children, made applications under the EU Settlement Scheme (EUSS) for family permits to allow them to travel to the UK to join the petitioner. This was on the basis that they are family members of a relevant EEA citizen who is exercising treaty rights in the UK.
“Permits relative to the wife and her two biological children were granted. She has now been granted leave to remain in the UK for a period of five years, and her two other children have been granted indefinite leave to remain here. The application by the adopted child was refused. His adoptive mother and siblings having now moved to the UK to be with the petitioner; he is being cared for in Uganda by a family friend.”
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The facts as relayed in court showed the little boy was caught in a nightmare of bureaucracy. The Entry Clearance Officer (ECO), acting on behalf of the Secretary of State, ruled that the adoption order in Uganda was made by an administrative authority or court that is not recognised by the UK.
In the form seeking entry into the UK, on behalf of the child it was written: “I have been adopted by my sponsor and mother, my biological father is unknown and my biological mother is deceased, my sponsor and mother have adopted me, and I cannot be separated from my family.”
The First Tier immigration tribunal found that the child ha d no rights of appeal because the application was made before 11pm on Brexit Day, January 31, 2020, after which any EUSS applicant would have automatic right of appeal.
Lawyers for the child argued that the tribunal should have considered the boy’s human rights, and argued that its decision was unlawful.
Lord Malcolm agreed, and wrote: “Somewhat unusually, no appearance has been entered on behalf of the Secretary of State in the proceedings.”
He added later: “The case has unusual features, and while of obvious significance for the child and wider family members concerned, it has the potential to be of more general importance. Although it was not challenged by the petitioner, the court is troubled by the First tier Tribunal’s view that rights of appeal in cases of this kind were created for the first time in respect of applications made after 31 January 2020. It would have been helpful to have the Secretary of State’s submissions on this.
“As for the proposition that the FtT’s decision is unlawful because it failed to engage with the grounds for the appeal as presented to it, or, if it did, it did not provide adequate reasoning for their rejection, I have no difficulty in upholding this complaint. It follows that the decision will be quashed and the matter remitted to a differently constituted tribunal. Quashing the decision is the most that the court can do in respect of this petition.”
A Home Office spokesperson said: “It would be inappropriate to comment whilst legal proceedings are ongoing.”
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