Input:
The question at issue on this appeal is what connection must a foreign company have with the United Kingdom to entitle an English court to wind it up, if its centre of main interests (or COMI) is in another member state of the European Union.
The answer depends on the meaning of two words, economic activity, in EU Regulation 1346/2000 on Insolvency Proceedings.
The legal framework
Under section 221 of the Insolvency Act 1986, the English court has jurisdiction under its domestic law to wind up a foreign company.
However, in the case of companies whose COMI is in another member state of the EU, the exercise of this power is constrained by the Regulation.
Article 3 of the Regulation provides as follows: Article 3 International jurisdiction 1.
The courts of the Member State within the territory of which the centre of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings.
In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2.
Where the centre of a debtor's main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State.
The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.
Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings.
These latter proceedings must be winding up proceedings. 3.
The COMI is not a term of art, and is not defined in the body of the Regulation.
Recital (13), however, recites what is perhaps implicit in the phrase, namely that it should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties.
Jurisdiction to begin secondary insolvency proceedings in another European jurisdiction is established on a very different basis.
It depends on the existence of an establishment within its territory.
An establishment is defined in article 2(h) as any place of operations where the debtor carries out a non transitory economic activity with human means and goods.
Goods is hardly a satisfactory English word to use in this context.
It is apparent from the equivalent term in the other language versions that it means the same as assets (biens, Vermgen) in article 3(2).
The facts
Olympic Airlines SA was wound up on the direction of the Athens Court of Appeal on 2 October 2009.
Since then, the main liquidation proceedings have been in progress in Greece.
The appellants are the trustees of the companys pension scheme.
Olympic is the principal employer in the scheme and the only employer currently participating in it.
Under the rules of the scheme, it must be wound up upon the liquidation of Olympic Airlines.
Upon its winding up, a deficit was ascertained of (in round numbers) 16m, which Olympic is bound to make good under section 75 of the Pensions Act 1995.
On 20 July 2010, the trustees presented a winding up petition against the company in England on the ground that it was unable to meet this liability.
The size of Olympics deficiency means that they are unlikely to recover much.
But the winding up order was necessary in order that the scheme should qualify for entry into the Pension Protection Fund under section 127 of the Pensions Act 2004.
One of the conditions of entry was that a qualifying insolvency event should have occurred, and the only available one was that the company should have been ordered to be wound up under the Insolvency Act 1986: see Pensions Act 2004, section 121(3)(g).
Accordingly, the question arises whether Olympic had an establishment in the United Kingdom on 20 July 2010 so as to justify the presentation of a winding up petition on that date.
Olympic had had a number of offices in the United Kingdom, but the only ones which it still occupied on 20 July 2010 were its former UK head office at 11 Conduit Street in London, which it leased from an associated company.
The Chancellor heard evidence about the status of 11 Conduit Street and the activities that were carried on there at the relevant time.
He and the Court of Appeal made the following findings: (1) On 28 September 2009, shortly before the commencement of the liquidation proceedings in Greece, the area manager for Olympic in London was instructed that the company would cease all commercial operations as from 00.01 on the following day.
From that time all flight operations were undertaken by an unrelated company. (2) On 17 June 2010, the Greek liquidator informed the trustees of the pension fund that the employment of the 27 remaining UK staff would be terminated with effect from 14 July 2010.
Three persons, Mr Savva the General Manager, Mr Platanias the Finance and Purchasing Manager, and an accounts clerk, were retained thereafter on short term ad hoc contracts.
At the time of the English winding up petition, they were the only persons still working there. (3) Mr Savva attended the office at Conduit Street as required.
In practice this was about three or four times a week.
His function was to deal generally with anything requiring attention, principally instructions and requests from the liquidator and staff in Athens retained by him. (4) Mr Platanias arranged the payment of bills for his own salary and Mr Savvas, council tax, electricity and cleaning, and for minor repairs following a break in.
He reconciled bank statements, copied and sent relevant documents to the liquidator and his staff in Athens and dealt generally with post and telephone calls.
He supervised the disposal of the companys assets in England, a process which had begun before the winding up petition and continued for some time afterwards.
These comprised a current and deposit account, computers and office furniture, fixtures and fittings and computerised accounting records.
They had no substantial realisable value.
The Chancellor found that Mr Platanias functions were exactly what is to be expected from one responsible to an overseas liquidator for winding up the affairs of a foreign branch of a formerly substantial overseas trading company. (5) The clerk assisted in these activities under the direction of Mr Savva or Mr Platanias.
The decisions of the courts below
The Chancellor considered that to be economic an activity did not have to amount to external market activity: [2013] 1 BCLC 415.
He found that these activities constituted non transitory economic activities for the purpose of the definition of establishment and made the winding up order.
The Court of Appeal (Moore Bick LJ, Sir Stephen Sedley and Sir Bernard Rix) overruled him: [2014] 1 WLR 1401.
In summary, they thought that the relevant economic activity had to consist of more than the activity involved in winding up the companys affairs, and that the three remaining employees were doing no more than that.
After the Court of Appeal handed down its decision, the law was changed.
A statutory power under the Pensions Act 2004 was exercised so as to prescribe an additional insolvency event for the purpose of section 121.
The additional event was defined in such a way as to apply only to cases in which insolvency proceedings had been commenced in another member state of the EU in respect of an employer whose COMI was located in that state, and secondary proceedings had been begun in the United Kingdom but had subsequently been set aside for want of jurisdiction: see the Pension Fund (Entry Rules) (Amendment) Regulations 2014 (SI 2014/1664).
This appears to be a class of one: the present case.
However, for technical reasons, the present issue remains important even though the effect of the amendment is to enable the Olympic pension scheme to qualify for the Pension Protection Fund on the basis of the Greek proceedings.
The reason is that where the new insolvency event applies it is deemed to occur on the fifth anniversary of the commencement of the Greek proceedings, ie on 2 October 2014.
This is rather more than four years after the date of the winding up order made by the High Court.
This matters, because of the possibility that the Board of the Pension Protection Fund might require the trustees of the Olympic scheme to claw back any overpaid benefits between the commencement of the Greek liquidation proceedings and the relevant insolvency event.
If that event occurred on 2 October 2014 instead of 29 May 2012, the period over which the benefits may be clawed back will be longer.
Authorities
The text of the Regulation is largely derived from the Convention on Insolvency Proceedings which was opened for signature in Brussels on 23 November 1995, but failed for want of a sufficient number of signatories.
The Convention had been the subject of an authoritative commentary by Professor Miguel Virgos and M Etienne Schmit.
According to the Virgos Schmit Report (3 May 1996, OJL 6500/96), the definition of establishment reflected a compromise between universalist states, who favoured a single liquidation with universal effect, and territorialist states, who wished to recognise a jurisdiction to open national territorial proceedings based on the mere presence of local business assets whether or not there was any local place of business.
The compromise consisted in the acceptance by the territorialists that jurisdiction to open secondary proceedings should be founded on the existence of a local establishment, but with a broad definition of the activities that must be carried on there.
At para 71, the Report commented on the resultant definition as follows: 71.
For the Convention on insolvency proceedings, establishment is understood to mean a place of operations through which the debtor carries out an economic activity on a non transitory basis, and where he uses human resources and goods.
Place of operations means a place from which economic activities are exercised on the market (ie externally), whether the said activities are commercial, industrial or professional.
The emphasis on an economic activity having to be carried out using human resources shows the need for a minimum level of organization.
A purely occasional place of operations cannot be classified as an establishment.
A certain stability is required.
The negative formula (non transitory) aims to avoid minimum time requirements.
The decisive factor is how the activity appears externally, and not the intention of the debtor.
The rationale behind the rule is that foreign economic operators conducting their economic activities through a local establishment should be subject to the same rules as national economic operators as long as they are both operating in the same market.
In this way, potential creditors concluding a contract with a local establishment will not have to worry about whether the company is a national or foreign one.
Their information costs and legal risks in the event of insolvency of the debtor will be the same whether they conclude a contract with a national undertaking or a foreign undertaking with a local presence on that market.
Naturally, the possibility of opening local territorial insolvency proceedings makes sense only if the debtor possesses sufficient assets within the jurisdiction.
Whether or not these assets are linked to the economic activities of the establishment is of no relevance.
This provides much the most useful source of guidance.
By comparison, there is very limited help to be had from decided cases.
Decisions on the location of a companys COMI are addressed to a different test.
Decisions on what constitutes an establishment can rarely be more than illustrative given the fact sensitive nature of the inquiry.
In (Case C 396/09) Interedil Srl (in liquidation) v Fallimento Interedil Srl [2011] ECR I 9939: [2012] BUS LR 1582, the Court of Justice of the European Union dealt with the question whether the presence of immovable property was enough to confer jurisdiction to open secondary insolvency proceedings.
The court did not specifically address the question what constituted economic activity, but it dealt generally with the definition of establishment at paras 61 63 as follows:
61. Article 2(h) of the Regulation defines the term establishment as designating any place of operations where the debtor carries out a non transitory economic activity with human means and goods. 62.
The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required.
It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an establishment. 63.
Since, in accordance with article 3(2) of the Regulation, the presence of an establishment in the territory of a member state confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
Two English decisions illustrate the application of the test to particular facts.
In Shierson v Vlieland Boddy [2005] 1 WLR 3966, the Court of Appeal was concerned with an English debtor whose COMI was in Spain but who let and managed premises in England.
It cited and implicitly adopted para 71 of the Virgos Schmit Report, and concluded that the letting and management of the premises themselves was enough to make them an establishment.
In In re Office Metro Ltd [2012] BCC 829, Mann J was concerned with secondary proceedings in England in respect of an English company whose COMI was in Luxembourg and which was in liquidation there.
It used an office in England, at which it handled the settlement of liabilities on guarantees of leases to associated companies, dealt with Companies Act filings, forwarded post, and occasionally took legal and accountancy advice.
Perhaps wisely, the judge did not attempt a general definition of economic activity, but expressed the view that the activities carried out at the relevant premises were not economic activities and that in any event they were transitory.
Application to the present case
The definition in article 2(h) must be read as a whole, not broken down into discrete elements, for each element colours the others.
The relevant activities must be (i) economic, (ii) non transitory, (iii) carried on from a place of operations, and (iv) using the debtors assets and human agents.
This suggests that what is envisaged is a fixed place of business.
The requirement that the activities should be carried on with the debtors assets and human agents suggests a business activity consisting in dealings with third parties, and not pure acts of internal administration.
As the Virgos Schmit Report suggests, the activities must be exercised on the market (ie externally).
I am inclined to think that the same point was being made by the Court of Justice when it observed in Interedil that the activities must be sufficiently accessible to enable third parties, that is to say in particular the companys creditors, to be aware of them.
I do not think that this can sensibly be read as requiring that the debtor should simply be locatable or identifiable by a brass plate on a door.
It refers to the character of the economic activities.
They must be activities which by their nature involve business dealings with third parties.
Manifestly, some activities which a company in liquidation might carry on, may satisfy the definition.
This may happen not only where the liquidator carries on the business with a view to its disposal but also, for example, where he disposes of stock in trade on the market.
On the other hand, where a company has no subsisting business it is clearly not the case that the mere internal administration of its winding up will qualify.
Such activity would not be exercised on the market; moreover, if it were enough to establish
jurisdiction then the requirement for economic activities would add little
or nothing to the rest of the definition.
Indeed, the definition would almost always be satisfied by a debtor who retained premises in the United Kingdom with inevitable outgoings such as the payment of rent, business rates, and so on.
It is unnecessary in the present case to undertake the difficult task of drawing a precise boundary between these extremes because, on any reasonable view of the meaning and purpose of the definition, the facts of this case are on the wrong side of it.
Olympic was not carrying on any business activity at 11 Conduit Street on the relevant date.
The last of the companys business activities had ceased some time before.
All that Mr Savva and Mr Platanias were doing was handling matters of internal administration associated with the final stages of the companys disposal of the means of carrying on business.
The company cannot therefore be said to have had an establishment in the United Kingdom.
Reference under Article 267 TFEU
In my opinion, the necessity for showing at least some subsisting business with third parties before the definition can be satisfied is acte clair, even if the exact nature of that business and the degree to which it must be visible to outsiders may be open to argument.
Since in this case no external business at all was carried on from 11 Conduit Street, there is no point of principle calling for a reference.
Disposal
I would dismiss the appeal.

Output:
Olympic Airlines SA was wound up by a court in Athens on 2 October 2009.
The main liquidation proceedings are ongoing in Greece.
The company pension scheme has a 16m deficit.
Olympic Airlines SA is liable to make good the deficit by s 75 of the Pensions Act 1995.
It is unlikely to be able to do so.
Members of the pension scheme are eligible for compensation under the Pensions Act 2004 from the UKs Pension Protection Fund in respect of the shortfall.
Such compensation is payable from the date when a qualifying insolvency event occurred.
There are two possible dates in this case.
The first possible date is 20 July 2010, which is when the trustees of the pension scheme presented a winding up petition in England.
The winding up of a company under the Insolvency Act 1986 is a qualifying insolvency event: Pensions Act 2004, s 121(3)(g).
English courts have jurisdiction to wind up a foreign company under the Insolvency Act 1986.
However, under EU Regulation 1346/2000 on Insolvency Proceedings (the Regulation), where (as here) the company has its centre of main interests in another member state of the European Union, the English court is only permitted to wind it up if it has an establishment in England, meaning any place of operations where the debtor carries out a non transitory economic activity with human means and goods (article 2(h)).
The second possible date is 2 October 2014, which is the fifth anniversary of the commencement of the proceedings in Greece.
The possibility of treating this date as the date of a qualifying insolvency event in the specific circumstances of this case was created by a change in legislation subsequent to the Court of Appeals decision in this case refusing to make a winding up order on the basis of lack of jurisdiction: Pension Fund (Entry Rules) (Amendment) Regulations 2014.
The trustees of the pension scheme would prefer compensation to be treated as payable from the earlier of those two dates, namely 20 July 2010.
The only question for the court is therefore whether Olympic Airlines SA had an establishment in the UK on 20 July 2010 entitling the English court to make a winding up order under the Regulation, so that it can be said that a qualifying insolvency event occurred on that date.
By 20 July 2010, Olympic Airlines SA had: closed all of its offices in the UK except for its head office at 11 Conduit Street in London; ceased all commercial operations; and terminated the contracts of all remaining UK staff except for the General Manager, the Purchasing Manager, and an accounts clerk, who were retained on short term ad hoc contracts to implement instructions from the liquidator in Athens, supervise the disposal of the companys assets in the UK, and pay bills and conduct other administration relating to the head office building.
At first instance, the judge held that these activities constituted non transitory economic activities and Olympic Airlines SA therefore had an establishment in the UK entitling him to make the winding up order.
The Court of Appeal disagreed and held that the remaining activity consisted only in the winding up of the companys affairs, which was not enough to give the court jurisdiction to make the order.
The trustees of the pension scheme appeal from the Court of Appeals decision.
The Supreme Court unanimously dismisses the appeal.
Lord Sumption gives the only judgment.
Lord Sumption holds that the Regulations definition of establishment, which must be read as a whole, envisages a fixed place of business and business activity carried on there consisting in dealings with third parties, and not merely acts of internal administration [13].
For example, disposal of stock in trade would clearly satisfy the definition, but mere internal administration of the winding up including administration of remaining premises in the UK would not [14].
Olympic Airlines SA was not carrying on business activity at its head office on 20 July 2010 and did not therefore have an establishment in the UK at that date [16].
The requirement of showing at least some subsisting business with third parties is acte clair and so no reference to the Court of Justice of the European Union is necessary [16].


Input:
This is an interlocutory appeal in a criminal case which concerns the correct construction of section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
The appellants are a limited company and two individuals connected with its management.
They are indicted for, inter alia, offences of unauthorised use of trade marks, contrary to section 92(1)(b) and (c) of the 1994 Act.
No trial has yet been held, and the Crown case remains at this point a matter merely of allegation, which may or may not be proved.
At a preparatory hearing in the Crown Court, they advanced a submission that part of what was alleged was, on any view, outside the terms of section 92 and no offence.
Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
They renew it in this court.
What is alleged is that the defendants are engaged in the bulk importation and subsequent sale of goods such as clothes and shoes.
The goods, or many of them, are said to bear what appear to be the trade marks of well known brands, such as Ralph Lauren, Adidas, Under Armour, Jack Wills, Fred Perry or similar.
The goods were manufactured abroad, in countries outside the EU.
Some of the goods in the possession of the defendants are said to have been manufactured by people who were neither the trade mark proprietor, nor authorised by the proprietor to make them.
This first category of goods, the appellants describe as counterfeits in the true sense.
A significant portion of the remainder of the goods are, however, ones where there had originally been an authorisation of manufacture by the registered trade mark holder, whether by subcontract, licence or otherwise, but whose sale had not been authorised by him.
They were thus sold, bearing the trade mark, without the consent of the owner of the mark.
The causes of the non authorisation of sale might be, it is said, various.
Some garments might deliberately have been made by the factories in excess of the numbers permitted by the trade mark owner, so that the balance could be sold for their own benefit.
Some might have been made in excess of the order without that original ulterior intention (indeed perhaps as precautionary spare capacity planned and approved by the trade mark owner), but then have been put on the market without his consent.
Some might have been made under a permission which was cancelled by the trade mark owner; that in turn might include cases where the trade mark owner was dissatisfied with the quality and not prepared to have the goods put on the market as if their own, but cancellation might not be limited to that cause.
Those are not exhaustive of the possibilities.
These latter various types of goods are described by the appellants as goods appearing on the grey market.
It is common ground that neither the indictment nor the way the Crown puts its case distinguishes between these various different provenances.
That led to submissions that the indictment would turn out either to be bad for duplicity or to be misleading, and at risk of producing verdicts which it was difficult to interpret.
Thus was the point now at issue identified.
In short, it is common ground that: (i) before there can be a criminal offence of unauthorised use of a trade mark there must be an infringement of that mark which would be unlawful as a matter of civil law; see R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; and (ii) the sale, or the possession in the course of trade, of goods of any of the various provenances set out in para 5 above, would amount to an infringement of trade marks, giving rise to civil liability.
But the appellants case is that whilst any of the various provenances set out would involve civil liability, it is only in the case of what they describe as true counterfeits that there is any criminal offence.
They say that goods which were originally manufactured with the permission of the trade mark proprietor, but which are ones where he has not authorised the sale, are not true counterfeits and are not within the statute.
Section 92(1) does not apply, they contend, to goods put on the grey market.
The resolution of this contention depends on the true construction of section 92(1) of the 1994 Act.
It says: 92. (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
Subsection 92(5) adds a reverse onus statutory defence: (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.
The appellants contention focuses on the use of the expression such a sign in subsection (1)(b).
That refers back, they say, to subsection (1)(a).
And by referring back to (1)(a), they say, it means that (b) applies only to goods where the relevant sign (ie trade mark) has been applied without the consent of the proprietor.
Any goods in the grey market category have had the trade mark originally applied with the consent of the proprietor.
It is only the sale which the proprietor has not authorised.
Therefore, they say, those goods are not ones to which paragraph (a) of the subsection could apply.
It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
It may readily be agreed that the expression such a sign in section 92(1)(b) refers back to the sign described in the immediately preceding paragraph (a).
The difficulty comes when one is asked to read such a sign as incorporating the words without the consent of the proprietor which appear in the first few lines of the section before (a), and also the requirement that the sign has been applied to the goods (without such consent), which is the central component of the offence under (a).
This is simply not a possible construction of section 92(1).
There is no difficulty, on the ordinary reading of paragraphs (a) and (b), in seeing what the reference back to such a sign in (b) imports from (a).
Such a sign in (b) plainly means a sign such as is described in (a).
The sign described in (a) is a sign which is identical to, or likely to be mistaken for, a registered trade mark.
Signs (or trade marks) having any of the provenances described in para 5 above are squarely within this description.
So called grey market goods are caught by the expression.
The offences set out in paragraphs (a), (b) and (c) of section 92 are, as a matter of plain reading, not cumulative, but separate.
It is not necessary that one has been committed (by someone) before one can say that the next in line has been.
The mental element of a view to gain or the intent to cause loss is applicable to all three.
So is the element that the use made of the sign is without the consent of its proprietor.
Paragraph (a) then makes it an offence to apply such a mark, without consent and with the relevant mental element.
Paragraph (b) makes it an offence to sell (etc) goods with such a mark, without the consent of the proprietor and with the necessary mental element.
Paragraph (c) does the same for the preparatory offence of possession in the course of business with a view to behaviour which would be an offence under (b), again without the consent of the proprietor and with the relevant mental element.
Subparagraph (c) thus involves anticipation (but not necessarily the commission) of an offence under (b).
Of course, a person may commit all three offences, or different people may commit all three between them.
But that is not necessary.
Each stands alone.
The appellants reading of paragraph (b) is, by contrast, strained and unnatural.
It does not simply reach back to (a) but to the general words of the section which precede it.
It requires one to read sign in (a), which is incorporated into (b), as which bears a sign, so applied, or at least as such a sign, so applied.
This being so, there is no ambiguity or obscurity in the language such as would justify the court, pursuant to Pepper v Hart [1993] AC 593, in investigating the contents of Parliamentary debate at the time of the passage of the Bill which became the 1994 Act.
Nor can it be suggested that the ordinary (or literal) reading of the Act gives rise to absurdity.
It should be recorded, moreover, that the appellants realistically did not contend that there had been the kind of clear ministerial statement which amounted to a definitive identification of what the Bill was intended to achieve.
The most that is contended for is that the passage of the Bill was marked by several references to the desirability of punishing counterfeiting.
No doubt it was.
But there is not suggested to be any point at which Parliament, or any individual speaker, confronted the suggested difference between fake goods (which the appellants here describe as true counterfeits) and grey market goods.
Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
In support of their contention that such a distinction was plainly intended, the appellants referred to observations made by Lord Nicholls and Lord Walker in R v Johnstone upon the differences between counterfeit goods, pirated goods, and bootlegged goods.
Those observations arose, however, in the context of the case in which they were spoken.
The defendant was charged with offences against section 92(1)(c).
The offences were said to have arisen out of his possession for sale of compilation compact discs comprising songs which had covertly been recorded at concerts given by well known artistes.
The compact discs referred to the artistes by name, track by track, and the artiste had in each case registered his name as a trade mark.
The issue was whether the use of the name was, in the particular circumstances, one which might be taken by the buying public as an indication of authorised origin of the disc, as distinct from identifying the singer.
That was a question of fact, but unless it was demonstrated that the use of the name would be taken as an indication of origin, there would be no civil liability for trade mark infringement, and the decision of the House was that in that event there could be no criminal liability either.
It was in that context that Lord Nicholls referred at paragraph 1 to counterfeit goods as cheap imitations of the authentic article; that was said to distinguish that case from pirated music, which is music marketed without any trade mark, although recorded from a trade marked disc, and from bootlegged music, which is what Mr Johnstone had.
Likewise, Lord Walker, at para 59, referred to counterfeiting as an expression generally used to include unauthorised sale, under a well known trade mark, of goods not made or authorised by the proprietor.
Neither of their Lordships was addressing what is here said to be the critical difference between fake goods and unauthorised goods on the grey market.
Their observations came, moreover, years after the passage of the 1994 Act, and could not have been in mind at the time of its passing.
The appellants are correct that, in the context of goods which a proprietor voluntarily puts into the European single market with his trade mark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
But that is true whichever of the rival constructions of section 92 is correct.
Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
But this sheds no light on the correct construction of section 92.
The appellants further drew attention to the wording of the predecessor of section 92, section 58A of the Trade Marks Act 1938.
This had provided: 58A.(l) It is an offence, subject to subsection (3) below, for a person (a) to apply a mark identical to or nearly resembling a registered trade mark to goods, or to material used or intended to be used for labelling, packaging or advertising goods, or (b) hire, or distribute to sell, let for hire, or offer or expose for sale or goods bearing such a mark, or (i) (ii) material bearing such a mark which is used or intended to be used for labelling, packaging or advertising goods, or (c) to use material bearing such a mark in the course of a business for labelling, packaging or advertising goods, or to possess in the course of a business goods or (d) material bearing such a mark with a view to doing any of the things mentioned in paragraphs (a) to (c), when he is not entitled to use the mark in relation to the goods in question and the goods are not connected in the course of trade with a person who is so entitled. (3) A person commits an offence under subsection (1) or (2) only if (a) he acts with a view to gain for himself or another, or with intent to cause loss to another, and (b) he intends that the goods in question should be accepted as connected in the course of trade with a person entitled to use the mark in question; and it is a defence for a person charged with an offence under subsection (1) to show that he believed on reasonable grounds that he was entitled to use the mark in relation to the goods in question.
This section provided, in subsection (3), for a more stringent test of mental element than does the present section 92.
The appellants invite us to conclude that the earlier, more stringent, mental element may have had the practical effect of confining criminal liability to cases of their category of true counterfeits, and they say that a change in that effect is not demonstrated to have been intended by the 1994 Act.
The difficulty with that is that whilst it is certainly true that the mental element was more stringent, the 1938 Act would still have caught so called grey market goods, for paragraph (1)(b) clearly applied to goods which were sold when sale was unauthorised, whether or not the original application of the mark had been permitted.
Moreover, it is noticeable that the construction now contended for of section 92(1)(b) could not have been applied to section 58A(1)(b) without considerable difficulty, for the words giving effect to the element of absence of consent of the trademark proprietor did not appear at the beginning of the section as they now do, but only at the end; hence it would have been even more problematical to suggest that such a mark imported them.
It is plain enough that the inversion of the order of the words was a grammatical rather than a substantive variation.
Nor is there any reason to strain the language of section 92(1)(b) so as to exclude the sale of grey market goods.
That is not because of the consequentialist arguments pressed on us by the Crown.
It is doubtful that (absurdities or impossibilities apart) difficulties in assembling evidence can ordinarily affect the construction of a criminal statute.
Moreover, some of the supposedly adverse consequences of such a construction which were put before us on behalf of the Crown would be as likely to ensue even on the correct interpretation of the Act set out above.
The possible difficulty of distinguishing, where there has been an overrun, between the goods marketed with the proprietors authority and those which were a backdoor venture on the part of the manufacturer and subsellers, might as well arise on both constructions; no doubt in many cases the circumstances of the exit from the factory and of the subsequent sales will often be telling.
Likewise it is far from clear that there will be greater difficulty occasioned by the appellants suggested construction than by the correct one in the case of convincing fakes.
In both cases the defendant may occasionally be in a position to assert that he was taken in and thus reasonably believed that no infringement was involved.
Such a defence, if advanced, must be met on its merits, which will no doubt involve investigation of, inter alia, the circumstances in which the defendant acquired the goods and the inquiries which he did or did not make.
But, these consequentialist arguments apart, it is, on any view, unlawful for a person in the position of the defendants to put grey goods on the market just as it is to put fake ones there.
Both may involve deception of the buying public; the grey market goods may be such because they are defective.
The distinction between the two categories is by no means cut and dried.
But both are, in any event, clear infringements of the rights of the trade mark proprietor.
Defendants who set out to buy up grey market goods to make a profit on re sale do so because the object is to cash in on someone elses trade mark.
If such be proved, they have scant claim to a beneficent construction of the Act.
As it is, its ordinary reading plainly means that, unless they have the statutory defence, they have committed an offence.
In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
It may be accepted that it is perfectly possible that the imposition of a criminal sanction might be disproportionate where a civil law sanction is not.
But persons in the position of these defendants have no proprietary right in the trade marks.
They do have a right in the goods which they have bought, but the 1994 Act does not stop them selling them, except if they wish to do so whilst still with the misleading and infringing trade mark attached.
The 1994 Act does not, therefore, deprive the defendants of any property which they have.
The most it does is to regulate their use or the manner of their disposal of the goods, which is permitted under the second paragraph of article 1 in the general interest, which must include a general interest in the protection of trade marks.
There is in any event nothing disproportionate in the 1994 Act penalising sales when the infringing trade mark is still attached, nor in imposing a criminal sanction on those who might otherwise calculate that the risk of liability in damages is worth taking.
That is a perfectly legitimate balance to draw between the rights of the proprietor to protect his valuable trademark and goodwill, and those of the person who wishes to sell goods which he has bought.
For these several reasons, these appeals must be dismissed and the trial may proceed accordingly.

Output:
This is an interlocutory appeal in a criminal case in which the appellants are defendants indicted for offences of unauthorised use of trademarks, contrary to section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
An offence is committed under that section where a person does any of the following three things (with the intent to gain or to cause loss, and without the consent of the trademark proprietor): (a) applies to goods a sign identical to, or likely to be mistaken for, a registered trade mark, (b) sells goods which bear such a sign, or (c) possesses in the course of a business any such goods with a view to committing an offence under (b).
The allegations against the appellants (which have yet to be proved) are that they are engaged in the bulk import and subsequent sale of goods bearing registered trademarks, manufactured abroad, in countries outside the EU.
A significant portion of the goods said to be sold by the appellants were manufactured (and the trademark applied) with the permission of the trademark proprietor, but were then sold without the trademark proprietors consent (for example because the goods were in excess of the numbers or below the quality permitted by the trademark proprietor).
The appellant describes these as grey market goods and distinguishes them from true counterfeits manufactured without the authorisation of the trademark proprietor.
At a preparatory hearing in the Crown Court, the appellants argued that while the sale of grey goods attracts civil liability, it is not covered by the offence in s.92(1), which properly construed applies only to true counterfeits.
The appellants argued that such a sign in subsection (1)(b) refers back to (1)(a), so that 1(b) applies only to goods where the trademark has been applied without the consent of the proprietor.
Any goods in the grey market category have had the trademark originally applied with the consent of the proprietor.
It is only the sale which the proprietor has not authorised.
It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
The Supreme Court unanimously dismisses the appeals.
Lord Hughes gives the lead judgment, with which the rest of the Court agrees.
So called grey market goods are caught by the criminal offence in s.92(1), and the appellants contended construction of that section must be rejected.
The plain reading of such a sign in (1)(b) is that it refers back to the sign mentioned in (1)(a) i.e. a sign which is identical to, or likely to be mistaken for, a registered trade mark. 1(b) therefore covers the unauthorised sale of any
goods bearing a trademark (regardless of whether the trademark was applied to the goods in their manufacture with consent or not).
But this reference back to (1)(a) does not also incorporate into the meaning of such a sign the commission of an offence under (1)(a), i.e. the requirement that the sign has been applied without the consent of the proprietor.
Such a reading of (1)(b) is strained and unnatural and requires one to read such sign as such a sign, so applied.
The offences set out in (a), (b) and (c) are not cumulative, but separate, and the requirement in the opening lines of s.92(1) that the use made of the sign is without the consent of the proprietor applies to each type of use specified whether it is the application of a trademark to goods, the sale of goods bearing a trademark, or the possession for sale of goods bearing a trademark. [8 12] The predecessor of section 92, section 58A of the Trademarks Act 1938, also plainly covered grey market goods.
The appellants contention therefore that the more stringent test for intention in s.58A had the practical effect of confining criminal liability to cases of their category of true counterfeits must be rejected. [16 17] There is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act.
In any event, the appellants did not contend that Parliament considered a difference between true counterfeits and grey market goods.
Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
The authorities relied on by the appellants in support of their contention that such a distinction was plainly intended do not assist here, as they were not addressing any difference between fake goods and unauthorised goods on the grey market, and moreover came years after the passage of the 1994 Act so could not have been in mind at the time of its passing. [13 14] The appellants are correct that in the context of goods which a proprietor voluntarily puts into the European single market with his trademark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
But that is true whichever of the rival constructions of section 92 is correct.
Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
But this sheds no light on the correct construction of section 92. [15] There is no reason to strain the construction of s.92(1) to exclude the sale of grey market goods.
This is not because of the supposedly adverse consequences which the Crown argued would follow, some of which would be as likely to ensue even on the correct interpretation of the section.
The distinction between the two categories suggested by the appellant is not cut and dried, but both are clear infringements of the rights of the trademark proprietor.
The plain meaning of the Act is that it is unlawful to put grey goods on the market just as it is to put fake ones on there.
In both cases the trader is setting out to profit from someone elses trademark without permission. [18] In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
But the 1994 Act does not deprive them of their property, as it does not stop them selling the goods, except if they wish to do so whilst still with the misleading and infringing trademark attached.
Such regulation of use or disposal of goods is permitted under the second paragraph of article 1 in the general interest, and is in any event a proportionate measure, striking a legitimate balance between the rights of the proprietor to protect his valuable trademark, and those of the person who wishes to sell good which he has bought. [19]


Input:
Para 352D of the Immigration Rules provides for the grant of leave to enter to the child of a parent who has been admitted to the UK as a refugee.
The issue in this case is whether the Para extends, or should be treated as extending, to a child for whom a family member has taken parental responsibility under the Islamic procedure known as Kafala (described in the agreed statement of issues as a process of legal guardianship akin to adoption).
The facts are fully set out in the judgment of Davis LJ in the Court of Appeal.
The following is a sufficient summary for present purposes. i) AA was born in Somalia on 21 August 1994.
Her family was torn apart by events in Somalia.
Her father was killed in the mid 1990s. ii) An elder sister, Ms A, married Mohamed on 10 January 2001.
In 2002 she came home to find that he, her daughter Fadima, and her step daughter Amaani had been abducted.
She eventually left Somalia and came to the United Kingdom in October 2002.
She was later granted indefinite leave to remain, on compassionate grounds.
Her husband had in the meantime escaped from his abductors and had gone to live elsewhere in Mogadishu. iii) AA became separated from her mother and other siblings during the fighting.
Around the end of 2002 she went to live with Mohamed, Fadima and Amaani and was accepted as a family member. iv) In October 2007 Mohamed left Somalia, and came to the United Kingdom in November 2007, where he was reunited with Ms A.
He was granted asylum on 21 July 2008.
The three girls AA, Fadima and Amaani were left with a maternal aunt in Mogadishu. v) At the end of 2008 the three girls went to live with neighbours.
Contact with Ms A and Mohamed was renewed in March 2009.
Applications for entry into the UK were made for all three girls.
Entry clearance was granted to Fadima and Amaani, who came to the United Kingdom on 22 January 2010. (I shall refer to them for convenience, and without legal implications, as AAs adoptive siblings.) It was refused for AA, who remained in Addis Ababa pending her appeal. vi) Her appeal was heard in the First tier Tribunal on 3 September 2010.
Expert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala, a person may become a protg and part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law (FTT para 21). vii) The tribunal allowed the appeal both under para 352D and article 8 of the European Convention on Human Rights, the former on the basis that AA falls into a specific category of persons who have been taken into guardianship or the care of others under a transfer of responsibility such that Islamic law would recognise the legal status of the appellant in relation to [Ms A and Mohamed] as their child for all purposes and in the circumstances in which the appellant was an orphan. (para 31) viii) On 23 May 2011, the Upper Tribunal (Judge Grubb) allowed the Secretary of States appeal in respect of para 352D, but confirmed the tribunals decision under article 8.
On 14 May 2012 AA was given entry clearance and she arrived in this country on 4 June 2012.
The Court of Appeal accepted that notwithstanding the grant of entry clearance under article 8, the appeal was not academic.
The answer provided is that if entry is permitted under the Immigration Rules the entitlement of AA to remain thereafter will in effect align with the sponsor's entitlement, whereby indefinite leave to remain can be expected to be granted after the expiry of the five year period: whereas grant of leave to remain under article 8 is discretionary and not necessarily so linked to the sponsor's position.
In this court, Mr Gill has provided further details of the differences, legal and practical, between clearance under the rules and discretionary leave to remain (DLR) under article 8.
For example, under policies current at the time a person admitted under article 8 would take longer to reach the point of claiming indefinite leave to remain (ILR) than a person admitted under the rules.
Mr Gill submits that DLR status is not easily understood by employers, educational institutions and others with whom the holder will need to have dealings in ordinary life.
He pointed to other practical disadvantages, such as in relation to travel documents.
Some of his points were contentious.
However, it was not in dispute as I understand it that AAs status, following admission under article 8, might be materially less advantageous than that of someone (such as her adoptive siblings) admitted under Para 352D.
The Rules
The critical provision is Para 352D, in Part 11 of the Immigration Rules which relates to asylum: 352D.
The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom are that the applicant: (i) is the child of a parent who is currently a refugee granted status as such under the immigration rules in the United Kingdom; and (ii) is under the age of 18, and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum;
The principal issue which arises in AAs case is whether her relationship with her brother in law Mohamed can be regarded as that of the child of a parent (under (i)).
For that it is necessary to turn to the interpretation provision, Para 6, which defines parent as follows: a parent includes: (a) the stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership; (b) the stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership and; (c) the father as well as the mother of an illegitimate child where he is proved to be the father; (d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of Para 309A of these Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under Paras 297 303); (e) in the case of a child born in the United Kingdom who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parent(s)' inability to care for the child.
Thus an adoptive parent under a de facto adoption is included, but subject to the requirements of Para 309A.
This is underlined in turn by the definition of adoption: adoption unless the contrary intention appears, includes a de facto adoption in accordance with the requirements of Para 309A of these Rules, and adopted and adoptive parent should be construed accordingly.
Para 309A is in Part 8 of the Immigration Rules relating to Family Members (in the particular group relating to children).
Its present form dates from 2003.
It provides so far as relevant: 309A For the purposes of adoption under Paras 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 Para (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 Para; 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.
Paras 310 316C (referred to in the opening words) form a group of Paras under the general heading Adopted Children, dealing with the general requirements for entry as an adopted child, unconnected with circumstances which might lead to an asylum claim.
We were given little information about the thinking behind these rules, either in the present form, or as introduced in 2000.
Before 2000 a more flexible approach had been applied.
In R v Immigration Appeal Tribunal Ex p Tohur Ali [1988] 2 FLR 523, the Court of Appeal considered rule 50 as it then stood, under which parent was defined as including an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents inability to care for the child The court, by a majority, held that this expression was not confined to adoption under a legally recognizable adoptive process.
Para 352D was originally introduced in October 2000, at the same time as the Human Rights Act 1998 came into effect.
At that time the relevant part of the definition of parent in Para 6 included an adoptive parent but only where a child was adopted in accordance with a decision taken by a competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom (except where an application for leave to enter or remain is made under Paras 310 316).
HC 538 of 31 March 2003 altered the definition of parent to its present form and introduced Para 309A.
We were not given any explanation for these changes, but neither side relies on them as throwing any light on the issue we have to decide.
Para 352D was considered by the Court of Appeal in MK (Somalia) v Entry Clearance Officer [2009] Imm AR 386.
It had been argued that, notwithstanding the introduction of the new rule, reliance could be placed on a free standing policy, outside the rules, expressed in a Ministerial Statement dated 17 March 1995, under which following grant of asylum status to a parent reunion of the immediate family would be permitted as a concession outside the rules.
The court held that this policy had been supplanted by the rules in their amended form.
Discussion
As I understand them, Mr Gills submissions, carefully and fully developed in his printed case and in oral argument, have three main strands: i) Construction To make sense of Para 352D in the context of the family of a refugee, the definitions must be interpreted broadly so as to include a child in the position of AA. ii) International obligations Effect must be given to the UKs international obligations relating to the treatment of children, including a broad approach to the recognition of adoptive children. iii) Discrimination Children who are members of a family unit should not be put at a disadvantage because they come from countries which have no formal system of adoption.
Construction
I would accept that the requirements of Para 309A (b)(i) and (ii) seem ill adapted to the purposes of Para 352D.
They assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war torn Somalia, and indeed for most asylum seekers.
Mr Eadie did not argue otherwise, although he suggested some theoretical scenarios in which the requirements might be achievable.
As appears from its introduction the definition seems to have been designed principally to deal with ordinary applications to enter by adopted children, covered by the immediately following Paras.
It finds its way into Para 352D by a somewhat circuitous route, which suggests that careful thought may not have been given to its practical implications.
If there were any way in which we could legitimately rewrite the rule to produce a fairer result, I could see a persuasive case for doing so.
Unfortunately I do not think this possible.
The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahad v Entry Clearance Officer [2010] 1 WLR 48: The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. (para 10)
Read in accordance with those principles, it is clear to my mind that Para 352D does not cover AAs case, and cannot be rewritten in order to do so.
Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in Para 6 is more restricted.
It extends to de facto adoption only within the limitations laid down by Para 309A, which do not cover this case.
Although in terms directed to the succeeding provisions, the definition is also incorporated specifically into the general definition of adoptive parent and hence into that of parent in Para 6.
Mr Gill sought to make something, first, of the fact that the definition of parent is expressed as inclusive, and, secondly, of the words unless the contrary intention appears in the definition of adoption.
Neither point assists.
The word includes in the definition of parent is readily explicable, having regard to the fact that the particular Paras do not include a biological parent.
They are rather designed to extend the natural meaning of the term.
The specific treatment of adoption in Para (d) excludes any intention to cover other forms of de facto adoption outside the definition.
Similarly, the reference to contrary intention in the definition of adoption, in context, cannot be read as designed to extend the scope of the definition, but rather to indicate that there may be contexts in which the extension to de facto adoption does not apply.
On this aspect, I cannot usefully add to the reasoning of Davis LJ said in the Court of Appeal.
As he said, the wording of the rules is plain and unambiguous.
International obligations
Mr Gill has referred us to a number of international instruments which call for a broad approach to the protection of the interests of children.
As he rightly says, the best interests principle is now, in appropriate areas of law, recognised both by domestic and international law (see ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166).
Without in any way detracting from the importance of the principles affirmed in those instruments, I do not find it necessary to review them in any detail.
Taking them at their highest, Mr Gill is unable to point to any specific obligation covering the position of someone in the position of AA in the present case.
LJ concluded: In response to similar submissions in MK (Somalia) (above), Maurice Kay 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. (para 12) I respectfully agree.
Mr Gill also referred us to Secretary of State for Home Department v Abdi [1996] Imm AR 148.
The Court of Appeal noted a Home Office letter dated 17 May 1990 relating to Somali Family Reunion Applications, which included the following: 8.1.1 If the United Kingdom sponsor has been recognised as a refugee here under the terms of the 1951 United Nations Convention relating to the Status of Refugees then, like most countries, we follow the policy on family reunion agreed by the Conference which adopted the Convention.
We will agree to the admission of the spouse and minor children of the refugee.
However given the nature of the Somali family we are prepared to be flexible and if a refugee is able to show that a person not covered by the policy was a dependent member of the refugee's immediate family unit before the refugee came to the United Kingdom, then we would be prepared to consider exceptionally extending the refugee family reunion provision to cover that person.
Although this is a clear recognition of the importance attached internationally to family reunion, it is equally clear that the more flexible approach proposed for Somali applicants is not treated as a matter of legal obligation, but as a matter for exceptional consideration.
In that respect Mr Gill faces a further difficulty.
It is accepted by the Secretary of State that the rules on this issue are not exhaustive of this countrys obligations under international law.
Hence the decision to allow AA entry under article 8 of the European Convention on Human Rights.
Subject to the issue of discrimination, to which I will come, Mr Gill is unable to point to any international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law.
Discrimination
Mr Gill relies on what he calls the principle of non discrimination as recognised in a number of international instruments, for example: i) UN Convention on the Rights of the Child article 2, under which states parties are required to ensure the rights in the Convention to each child within their jurisdiction without discrimination of any kind ii) The Refugee Convention, the preamble of which reaffirms the principle that human beings shall enjoy fundamental rights and freedoms without discrimination iii) The European Convention on Human Rights article 14, under which the rights set out in the Convention are to be secured without discrimination on any of the grounds there set out.
Mr Gill submits that the discrimination in this case arises on a number of grounds under article 14, including race, religion and nationality, and also (as he puts it in his printed case) other status (the statuses of being a child of a refugee and/or of being a de facto adopted child, ie a child who is not a biological child nor a child adopted in accordance with procedures recognised by the UK.)
I accept that it appears harsh, to put it no higher, that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother in law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes.
It is however unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 or otherwise.
This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission.
Mr Gill did not suggest otherwise.
In exercising any discretion in relation to the grant or extension of DLR, the Secretary of State is obliged to act in conformity with the Convention, including article 14.
It is not necessary to reinterpret the rules to achieve that result.
I would add one comment.
As I have made clear, I see great force in Mr Gills criticisms of the use of the Para 309A definition in the context of a rule which is concerned with the treatment of refugees and their dependants.
Mr Eadies only answer, as I understood him, was that clear definitions were needed to establish bright lines.
That answer loses most of its force if the bright lines are drawn so restrictively that they have in practice to be supplemented by the much fuzzier lines drawn by article 8.
In the interests of both applicants and those administering the system, it seems much preferable that the rules should be amended to bring them into line with the practice actually operated by the Secretary of State, including that dictated by her obligations under international law.
Conclusion
For these reasons, which substantially follow those of the Court of Appeal, I would dismiss this appeal.

Output:
The issue in this appeal is whether AA falls within the definition of an adopted child in paragraph 352D of the Immigration Rules.
AA was born in Somalia on 21 August 1994.
Her family were torn apart by events in Somalia and her father was killed in the mid 1990s.
AA became separated from her mother and other siblings during the fighting.
Around the end of 2002, she went to live with her brother in law, Mohamed.
He had a daughter, Fadima and step daughter, Amaani.
Mohamed took AA into his family home under the Islamic procedure known as Kafala (described as a process of legal guardianship akin to adoption).
In October 2007, Mohamed left Somalia and came to the UK in November 2007.
He was granted asylum on 21 July 2008.
The three girls, AA, Fadima and Amaani, were left with a maternal aunt in Mogadishu.
An application for entry into the UK was made for all three girls.
Entry clearance was granted to Fadima and Amaani who came to the UK in January 2010.
It was refused for AA who remained in Addis Ababa pending her appeal.
Her appeal was heard in the First tier Tribunal (FTT) on 3 September 2010.
Exert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala a person may become a protg and a part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law.
The FTT allowed the appeal both under paragraph 352D and article 8 ECHR (right to respect for private and family life).
The Secretary of State appealed.
The Upper Tribunal (UT) allowed the Secretary of States appeal in respect of paragraph 352D but confirmed the FTTs decision under article 8.
On 2 May 2012, the Court of Appeal confirmed the UTs decision.
On 14 May 2012, AA was given entry clearance and she arrived in the UK on 4 June 2012.
AA appeals to the Supreme Court in respect of paragraph 352D of the Immigration Rules.
The Supreme Court dismisses the appeal.
Lord Carnwath gives the lead judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree.
The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahed v Entry Clearance Officer [2010] 1 WLR 48.
Read in accordance with those principles, it is clear that paragraph 352D does not cover AAs case and cannot be rewritten in order to do so [14 15].
Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in paragraph 6 is more restricted.
It extends to de facto adoption only within the limitations laid down by paragraph 309A, which does not cover this case [15 16].
A number of international instruments call for a broad approach to the protection of the interests of children.
The best interests principle is now, in appropriate areas of law, recognised both by domestic and international law [17].
However, taking them at their highest, there is no specific obligation covering the position of AA [18].
Subject to the issue of discrimination, there is no international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law [21].
It appears harsh that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother in law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes.
However, it is unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 ECHR or otherwise.
This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission.
In exercising any discretion in relation to the grant or extension of definite leave to remain, the Secretary of State is obliged to act in conformity with the Convention, including article 14.
It is not necessary to reinterpret the rules to achieve that result [24].