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Adopting a Child from Abroad? UK Immigration Law & Adoption Demystified

View profile for Shabab Hamid
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Adopting a child from abroad is an undoubtable difficult process, there are many questions to begin with as a prospective parent, what comes first? The adoption? Or which immigration visa will be the best one for your adopted child to enter the United Kingdom with? Do you meet a Family Lawyer first, or an Immigration Lawyer?

For point of reference, you should be aware that your first port of call is the IAC (The Centre for Adoption), (http://www.icacentre.org.uk/), an independent charity that provides a comprehensive service to people considering both domestic and intercountry adoption. The IAC provides detailed information on their website.

You first need to understand that there are three types of adoption:

1. Adoptions under the terms of the ‘Hague Convention’. This type of adoption only applies to inter-country adoptions, so for example, someone adopting a British child within the UK will not adopt under the terms of the Hague Convention. Not all countries are party to the Hague Convention. 

2. Overseas adoptions recognised by United Kingdom laws. These are adoptions which took place in countries or territories whose adoption procedures are recognised by the UK. For adoptions which took place before 3 January 2014, the list of countries is found in The Adoption (Designation of Overseas Adoptions) Order 1973 and The Adoption (Designation of Overseas Adoptions)(Variation) Order 1993. For adoptions which took place after 3 January 2014, the list of countries is found in The Adoption (Recognition of Overseas Adoptions) Order 2013 for England, Wales and Northern Ireland; and in The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013 for Scotland.

3. Overseas adoptions not recognised by UK law. These are adoptions which took place in countries not listed above. These cases can be very difficult in immigration terms unless they are classed as “De Facto adoptions”. De facto adoptions are defined at paragraph 309A of the Immigration Rules as situations where:

  1. 309A. For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:
  2. (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
  3. (b) during their time abroad, the adoptive parent or parents have:
    1. (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
    2. (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.

You need to understand that a de facto adoption is merely a concept of the Immigration Rules, it holds no legal meaning or weight in Family Law or Family Law legislation, and does not grant legal rights to the prospective parents, or pass British nationality onto the child.

UK Immigration Law & Nationality apply differently, depending on the type of adoption that has taken place.

British Citizenship

Under the British Nationality Act [1981], there are two instances where a child will be automatically British at the time of adoption:

  • Where the final adoption order is certified as having been made in accordance with the terms of the Hague Convention, and at least one of the adoptive parent was British and habitually resident in the UK at the time of the adoption order.
  • When the child is adopted by an Order of a Court in the UK, and at least one of the adoptive parents was a British Citizen at the time the adoption order was made.

In the two instances above, the child will be eligible to simply make a British passport application in the first instance, sending in the key documents to evidence the relevant adoption and evidence of the adoptive parents British nationality.

In all other instances, the child could be registered as a British Citizen under the British Nationality Act [1981]. Under this legislation, the only statutory requirements that apply are that the application is made while the child is a minor and the Secretary of State thinks fit to register them. Published Home Office Guidance Notes provides that:

If a child was adopted in a country which was not listed in the designated list, the 2013 Order or the 2013 Scottish regulations you must only consider registering in exceptional circumstances.

must normally only register children adopted overseas by a British citizen in countries or territories whose adoption procedures are recognised by the UK, and subject to the additional criteria below:

  • the adoption is not informal or temporary
  • under the law of the country where the adoption took place the child is the child of the adoptive parents alone and the legal relationship with the birth family has been completely terminated
  • at least one of the adoptive parents is a British citizen otherwise than by descent
  • the current parent(s) have consented
  • there is no reason to refuse on character grounds
  • you are satisfied that all relevant adoption laws have been adhered to, this includes the laws of the country in which the adoption has taken place, the country of origin of the child and the country in which the adoptive parents are habitually resident
  • you are satisfied the adoption is not one of convenience arranged to facilitate the child’s admission to the UK

If some or all of the criteria set out in the above paragraph are not met, you must consider the application on its merits and only register the child if there are exceptionally compassionate or compelling circumstances.

We have many individuals that have unfortunately adopted in countries where the adoption is not legally recognised under UK laws. Therefore, the guidance provided by the Home Office states that normally applications for British Registration will be refused on the grounds that the adoption is not recognised by UK law. The Home Office does however have a wide ranging discretion if there are exceptional, compelling or compassionate circumstances that warrant a grant of British Citizenship.

Please see the following link for more information:

https://www.gov.uk/government/publications/guidance-on-how-adopted-children-can-become-british/intercountry-adoption-and-british-citizenship

Immigration Rule 309A: Visa Application for Adopted Child

There are also provisions in the Immigration Rules to grant Limited or Indefinite Leave to Remain (ILR) or Enter for children adopted by British Citizens or by individuals who have ILR in the UK. In short, children may be granted ILR where:

  • both parents are present and settled in the United Kingdom; or
  • one parent is present and settled in the United Kingdom and the other parent is dead; or
  • one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing; or
  • one parent is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; or
  • in the case of a de facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purpose of settlement;

Children will be granted limited leave to enter in line with the parent instead where

  • one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement; or
  • one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or
  • one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; or
  • in the case of a de facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purpose of settlement;

De facto or Recognised Adoptions

In the case of de facto adoptions, or adoptions recognised by UK law, applicants can apply for limited or indefinite leave to enter the UK under paragraphs 310-316 of the Immigration Rules. In addition to showing the parents’ immigration status as per above, the children will need to meet all of the following requirements:

  • both adoptive parents were resident together abroad; or either or both adoptive parents were settled in the United Kingdom at the time of the adoptions;
  • They can be maintained and accommodated in the UK without recourse to public funds.
  • They are under 18 and not leading an independent life
  • the adoption was one which was in accordance with the decision taken by a competent court in the country where the adoption took place; or it was a de facto adoption
  • They will have the same rights and obligations as any other children of the family,
  • They were adopted due to the inability of the birth parents to care for them,
  • There has been a genuine transfer of parental responsibility to the adoptive parent(s)
  • They have lost or broken her ties with the family of origin
  • They were not adopted out of convenience to facilitate their admission to the UK
  • They do not fall for refusal under the general grounds for refusal

You need to remember that even if a visa is granted to the child to enter the UK under the de factor Immigration Rules, the parents may still need to adopt their child under British Nationality law once in the UK.

Children Entering the UK to be Adopted

We have come across a number of individuals whose adoptions are not recognised under UK Laws. In this instance, they should apply for Limited Leave to Enter under Immigration Rules 316-316A of the Immigration Rules.

The requirements are essentially the same for recognised or de facto adoptions, however parents will need to provide a Certificate of Eligibility issued by the Department for Education (DFE), obtained in the UK. If successful, the prospective adopted children will be given a period of Leave to Remain during which they should be adopted in the UK. Once adopted, they will become British automatically, and eligible to apply for a British passport.

Visa Applications for Children Adopted under the Hague Convention

Some parents may bring their adoptive children to the UK and complete the adoption through the UK Courts. Paragraph 316D-F of the Immigration Rules is a specific category for those bringing a child to the UK for completion of an adoption process already begun abroad under the Hague Convention. To be granted a visa under this category, you must show that:

  • The prospective parents are habitually resident in the UK and wish to adopt the child under the Hague Convention
  • The adoption is in accordance with Article 17(c) of the Hague Convention;
  • The child has been entrusted to the prospective parents by the competent administrative authority of the country from which he is coming
  • The child is under 18
  • The child will be maintained and accommodated adequately without recourse to public funds

Conclusion

No doubt you will conclude that adopting a child from overseas may be difficult to start with, especially given there are many factors which may lead you down different routes, ie which country the child was adopted, when the child was adopted, how the child was adopted, and all of these options impact on the eventual immigration application you will be lodging for the child to enter the UK lawfully.

Please do contact the Immigration Department on telephone number 020 7935 3522 if you feel you require specialist immigration advice.

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