International Adoptions & Children coming to the UK for adoption

The new guidance Adopted children and children coming to the UK for adoption (Version 1.0) was published by the Home Office on 23 July 2020. It applies to applications for entry clearance to, or limited of indefinite leave to remain in the UK as (i) the adopted child of a parent or parents present and settled in the UK or being admitted for settlement in the UK, (ii) the adopted child of a parent or parents given limited leave to enter or remain in the UK, (iii) a child for adoption, and (iv) a child for adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993.

This guidance accompanies and explains the Immigration Rule requirements to be met before an adopted child can be granted entry clearance to come to the UK from overseas, and the requirements to be met when entry clearance is sought for a child to come to the UK for the purpose of adoption or on the basis that the child is a de facto adopted child. Children coming to the UK as adopted children or for the purpose of adoption are expected to meet the requirements set out in the Immigration Rules as explained in this guidance.

The practice of adopting a child and bringing him or her up as one’s own is a feature of many cultures. UK adoption law requires there to be a full transfer of parental responsibility to the adoptive parents and for the child to be legally the child of the adoptive parents. In a case where the adopted child retains normal ties with his or her natural parents, the application will not meet the requirements of the Immigration Rules and the Entry Clearance Officer or other decision maker must consider whether there are exceptional circumstances on ECHR Article 8 grounds which mean the Home Office should consider granting entry clearance or leave outside the Rules.

The categories in which parents who are British citizens or settled in the UK can bring an adopted child or prospective adopted child into the UK under the Immigration Rules are:

• limited leave with a view to settlement as a child for adoption under the Hague Convention (see paragraphs 316D – 316F of Part 8)-this refers to the process whereby parents resident in the UK have approached an adoption agency to be assessed and for help in identifying a child in a particular country for adoption

• indefinite leave as a child who has been adopted according to the laws of the child’s country of origin or residence, this being a country whose adoptions are recognised under relevant UK legislation; see: list of designated countries and paragraphs 310 – 313 of Part 8)

• limited leave as a child adopted according to the laws of the child’s country of origin or residence, this being a country whose adoptions are recognised under relevant UK legislation, but only one parent has settled status here and the other has limited leave with a view to settlement or is being granted limited leave with a view to settlement (Paragraph 314 of Part 8)

• a category that allows a child to come to the UK for the purpose of being adopted and with a view to settlement (see paragraphs 316A – 316C of Part 8)

• a category that recognises, in a concessionary way, the situation where parents living overseas will have cared for a child in an adoptive way but without access to a legal system in which formal adoption can take place: o these are described as de facto adoptions, but a specific period of caring for the child’s needs must have been completed as set out in paragraph 309A before the application can be considered under paragraphs 310 – 316C of Part 8.

It is important to appreciate the different applicable legislation governing this very complex area of law and practice which depends on where you live in the UK. In Scotland, see  The Adoption and Children (Scotland) Act 2007 and The Adoptions with a Foreign Element (Scotland) Regulations 2009   & The Adoption ( recognition of Overseas Adoptions )

(Scotland ) Regulations 2013 & subsequent Amendment 2013 Order . Different legislation is in place for both England and Northern Ireland.

The guidance succinctly takes us through the adoption process and considerations in respect of those to which legislation applies ( pgs 14 – 22 ) . A Very welcome inclusion in this new guidance is the section on De facto adoptions explaining  the Immigration Rules to allow the entry to the UK of a child who has been fully integrated into a family whilst they were residing abroad for a long period of time but where the relationship is not recognised legally. The rules allow the admission of de facto adopted children from countries where no legal adoption procedure exists, or where the system operating is not recognised by the UK.

The definition for de facto adoptions is in paragraph 309A of the Immigration Rules and the de facto adoption will be regarded as having taken place where the adoptive parent(s) can show they have (i) lived abroad for a period of at least 18 months, for applications involving two parents both must have lived abroad together, (ii) lived with and cared for the child for at least the period of 12 months immediately before the application for entry clearance, and (iii) assumed the role of the child’s parent for the full 18-month period mentioned above, and there has been a genuine transfer of parental responsibility. The child may be granted entry clearance as a de facto dependant on the same basis as their adoptive parent.

A de facto adoption may arise where (i) adoption orders in the country where the child was adopted are not recognised as valid in the UK, (ii) the parents are caring for a child in a country which does not recognise adoption, and (iii) despite the country in which they are living being a Hague Convention or designated country, the parents are unable to adopt there because, for e.g., they are not able to satisfy that country’s particular requirements.

If the criteria in paragraph 309A of the Immigration Rules are met, the child may apply for:

• indefinite leave to enter the UK as the adopted child of a parent or parents present and settled in the UK if the requirements of paragraph 310 are met

• limited leave to enter the UK with a view to settlement as the adopted child of a parent or parents given limited leave to enter or remain in the UK with a view to settlement if the requirements of paragraph 314 are met

Applications from children in this category are processed under paragraphs 310 – 316 of Part 8 of and (where appropriate) Appendix FM to the Immigration Rules and can result in settlement either on entry or later, once one or both parents have qualified for settled status here.

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The stakes are very high in such applications and it is imperative that advice is sought from the outset to make these applications successful. Please contact us if you are considering an international adoption. It is a difficult path to navigate.

• International Adoption
• Children coming to the UK for adoption
• Adoption in Scotland
• Adoption and Immigration