How does immigration and nationality law apply to adopted children?

Immigration and nationality law as it relates to international adoption is undoubtedly complex and a topic with which only a few practitioners are familiar. There are numerically very few international adoption cases, after all. The inevitable cross over with family law does not make it any easier. This blog post provides an overview of the subject.

Types of adoption

The first thing to note is that there are different types of adoption:

1. Adoptions under the terms of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (or just “Hague Convention” in this context). The Hague Convention only applies to inter-country adoptions. In other words, a family based in the US adopting a child in the US cannot adopt under the terms of the Hague Convention. In addition, not all countries are party to the Convention.
2. Overseas adoptions recognised by UK law. 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” (see below) but the  case of W v SSHD [2017] EWHC 1733 (Fam) provides a rare example of a reported successful resolution, although not without considerable stress and expense (write up here: When will a foreign adoption be recognised in common law for immigration purposes?).
4. De facto adoptions, defined at paragraphs AD 28.1 and AD 28.2 of Appendix Adoption  of the Immigration Rules as situations where adoptive parents (or, in the case of someone with sole responsibility, the adoptive parent):

(i) have been resident abroad for at least eighteen months; and
(ii) have been living together with the child for the twelve months immediately before the application; and
(iii) have assumed the role of parent(s) since the beginning of the either-month period, so that there has been a genuine transfer of parental responsibility.

De facto adoptions are a concept of the Immigration Rules. They do not “mean” anything under family law and do not grant parental rights to parents or nationality rights to a child.

Immigration and nationality law apply differently depending on the type of adoption.

British citizenship

Children who are automatically British at the time of the adoption

Under section 1(5) of the British Nationality Act 1981, there are two instances where adopted children will become British automatically at the time of the adoption:

1. When the final adoption order is certified as having been made in accordance with the terms of the Hague Convention, at least one of the adoptive parent was British, and, in the case of a couple, both parents were habitually resident in the UK at the time of the adoption order
2. When the child is adopted by 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 these cases the parents can simply make an application for a British passport for the child, sending in the required proof of adoption and other required documents.

Registration as a British citizen

In all other instances, children will need to register to become British under section 3(1) of the British Nationality Act. Under this section, 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. There is also a good character requirement for those over ten years of age.

Although the Secretary of State has discretion to register any child he thinks fit, there is published guidance on when he will usually do so. This is directed at Home Office caseworkers but is largely publicly available to see. The most recent guidance was published on 14 July 2017 and can be found here.

This guidance is in fact very short, and states 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.

To find more detailed guidance, one needs to refer to the general Registration Guidance for children here.

Accordingly, caseworkers

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 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 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.

With regards to adoptions not recognised in UK law, the guidance is much more negative:

You must normally refuse applications for registration under section 3(1) made solely on the grounds that the applicant had been adopted by a British citizen in a country or territory whose procedures are not recognised by UK law. However you must consider all applications on their merits, and you may register the child as a British citizen if there are exceptional, compelling or compassionate circumstances justifying a grant of British citizenship. This may be the case even where there is an intention to remain outside the UK.

The factors which will be taken into account are found under the part “Other applications under section 3(1)” of the guidance. It states

In considering whether it is appropriate to register a child on this basis, you must take the following factors into account:

• the child’s future intentions
• the child’s parents’ circumstances
• residence in the UK
• the child’s immigration status
• any compelling compassionate circumstances raised as part of the application

Although these applications are difficult to make successfully, they are not impossible, and children are registered when they can satisfy the Secretary of State that it is in their best interests to be. It is important in particular to show links to the UK; the more and stronger the links are, the more the chances of applications being granted.

If an application is refused, there is no right of appeal. Instead, applicant may ask for reconsideration of the decision or start judicial review proceedings.

Immigration rules: entry clearance and leave to remain for adopted children

There are also provisions under Appendix Adoption of the Immigration Rules to grant limited or indefinite leave to remain or enter for children adopted or to be adopted by British citizens or by individuals who have indefinite leave to remain in the UK or by individuals on a route to settlement.

Where an adoption has taken place in a country where the adoption is recognised under UK law and the adoptive parent(s) were resident in that country at the time of the adoption, the adopted child may make an application as a dependent child on the same route as their parent(s).

Rules applicable to all children under Appendix Adoption

Some requirements need to be met by all applicants under Appendix Adoption. They include:

1. validity  requirements, whereby applicants must submit their application using a specified online form; pay the relevant fees; provide biometrics when required; and provide a passport or other document establishing their identity and nationality;
2. suitability requirements, whereby applicants must not fall short of the grounds for refusal found at part 9 of the Immigration Rules;
3. the need to provide TB certificate where applicable;
4. the age, independent life, and care requirement of Appendix Children. These requirements are set in more details in this post, but in summary, children must be under 18, not living an independent life, and there must be suitable arrangements for their care and accommodation in the UK;
5. the financial requirements. Where applicants are joining British or settled parents, they must show that they will be adequately maintained in the UK by the adoptive parent(s), without recourse to public funds. Where applicants are joining an adoptive parent who is on a route to settlement, they must met the financial requirement for a dependent child under that route. The rules provide most details on what evidence must be submitted to show that this requirement is met;
6. the accommodation requirement, whereby applicants must show that they will have suitable accommodation in the UK;
7. the “genuine adoption” requirement, whereby applicants must show that the adoption is not one of convenience, arranged to facilitate the applicant’s admission to the UK.

Entry clearance for children to be adopted under the Hague Convention

A lot of adoptions under the Hague Convention will be finalised in the country of origin at which point, provided the adoptive parents were habitually resident in the UK at the time of the adoption order, and at least one adoptive parent is British, then the child will be automatically British, and won’t need to apply for Entry Clearance.

However, it is also possible for foreign adoption courts to ‘entrust’ a child to his adoptive parents. Parents may then bring the child to the UK and complete the adoption through the UK courts.

Those bringing a child to the UK for completion of an adoption process already begun abroad under the Hague Convention must submit an application relying on the Adoption: Hague Convention route, found at paragraphs AD 1.1 to AD 12.2 of Appendix Adoption.

To be granted leave under this category, one must show, in addition to the requirements set out above, that

1. The adoptive parent(s) are habitually resident in the UK;
2. The adoptive parents (or, where they have sole responsibility, the adoptive parent) are British, settled in the UK, or in the UK with a right to stay without restriction
3. The adoption is subject to an agreement made under Article 17(c) of the Hague Convention;
4. The child has been entrusted to the adoptive parents by the competent administrative authority of the country from which he is coming;
5. The adoption is not one of convenience arranged to facilitate admission of the child to the UK;
6. Applicants have a Certificate of Eligibility

Successful applicants are granted entry clearance for 24 months, which should allow the Hague adoption to be completed in the UK, at which point they will automatically become British under section 1(5) of the British Nationality Act.

Recognised adoptions

In the case of adoptions recognised by UK law, applicants can apply for limited or indefinite leave to enter the UK relying on the Recognised Overseas Adoption route, found at paragraphs AD 16.1 to AD 24.1 of Appendix Adoption.

To be granted leave under this category, one must show, in addition to the requirements set out above which apply to all, that

1. The adoption is recognised under UK law and the adoption was made in accordance with a decision taken by the competent Central Authority or court in the child’s country of origin, or the country in which they are resident; or the adoption has been recognised by order of the High Court in the UK;
2. The applicant must provide a Certificate of Eligibility when the date of adoption is 12 months or less before the planned date of entry to the UK and the adoptive parents are habitually resident in the UK while the chid is habitually resident abroad.
3. The applicant must be joining or accompanying their adoptive parent(s) where one of the following applies:

(a) both adoptive parents are British Citizens, are settled in the UK or live in the UK and have a right to stay without restriction; or

(b) the adoptive parent has sole responsibility for the applicant and is a British Citizen, is settled in the UK or lives in the UK and has a right to stay without restriction; or

(c) one adoptive parent is a British Citizen, or is settled in the UK, or lives in the UK and has a right to stay without restriction and the other adoptive parent has, or is applying for (and is granted), entry clearance or permission to stay on a route to settlement; or

(d) the adoptive parent has sole parental responsibility, and is applying for (and is granted), entry clearance or permission on a route to settlement; or

(e) one adoptive parent is a British Citizen, is settled, or lives in the UK and has a right to stay without restriction and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance; or

(f) one adoptive parent has, or is applying for (and is granted), entry clearance or permission to stay on a route to settlement and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance.

Where both adoptive parents are British or settled; or there is only one adoptive parent with sole responsibility who is British or settled, then the applicant will be granted indefinite leave to remain. In all other cases, the applicant will be granted limited leave to end on the expiry date of the adoptive parent’s limited leave. These applicants will eventually be able to apply for indefinite leave when both parents are settled. They can do so under paragraph 298 of Part 8 of the Immigration Rules, or on the route that they adoptive parent is on.  

De facto adoptions

In the case of de facto adoptions applicants can apply for limited or indefinite leave to enter the UK under the De Facto Route, found at paragraphs AD 25.1 to AD 38.3 of Appendix Adoption.

To be granted leave under this category, one must show, in addition to the requirements set out above which apply to all, that

1. They meet the definition of de facto adoption as set out above;
2. They will have the same rights and obligations as any other child of the family;
3. The birth parents or those looking after the child immediately before they were transferred to the care of their adoptive parents are unable to care for them;
4. They have broken or lost ties with their biological family;
5. The applicant must be joining or accompanying their adoptive parent(s) where one of the following applies:

(a) both adoptive parents are British Citizens, have settled status, have a right to stay without restriction, or are being admitted to the UK for settlement; or

(b) the adoptive parent has sole responsibility for the applicant and is a British Citizen, has settled status, has a right to stay without restriction, or is being admitted to the UK for settlement; or

(c) one adoptive parent is a British Citizen, or has settled status, or has a right to stay without restriction, or is being admitted for settlement, and the other adoptive parent has or is being given permission to come to the UK on a route to settlement; or

(d) one adoptive parent is a British Citizen, or has settled status, or has a right to stay without restriction, or is being admitted for settlement and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance.

Where both adoptive parents are British or settled; or have a right to stay in the UK without restriction, or there is only one adoptive parent with sole responsibility who is British or settled, then the applicant will be granted indefinite leave to remain. In all other cases, the applicant will be granted limited leave to end on the expiry date of the adoptive parent’s limited leave. These applicants will eventually be able to apply for indefinite leave when both parents are settled. They can do so under paragraph 298 of Part 8 of the Immigration Rules, or on the route that they adoptive parent is on. 

Entry clearance for children coming to be adopted in the UK

For parents who have adopted their children in countries where adoptions are not recognised; or where parents intend to adopt in the UK, they should apply for limited leave to enter the UK under the Coming to the UK for adoption route, found at paragraphs AD 41.1 to AD 49.1 of Appendix Adoption.

To be granted leave under this category, one must show, in addition to the requirements set out above which apply to all, that

1. They are coming to the UK for adoption by an adoptive parent(s) in accordance with UK adoption laws;
2. They will have the same rights and obligations as any other child of the family;
3. They are being adopted due to the inability of the birth parent(s) or current carer(s) to care for them, and there has been a genuine transfer of parental responsibility to the adoptive parent(s);
4. They have a Certificate of Eligibility if the parents are habitually resident in the UK;
5. The applicant must be joining or accompanying their adoptive parent(s) where one of the following applies:

(a) both adoptive parents are British Citizens, are settled in the UK or live in the UK and have a right to stay without restriction; or

(b) the adoptive parent has sole responsibility for the applicant and is a British Citizen, is settled in the UK or lives in the UK and has a right to stay without restriction; or

(c) one adoptive parent is a British Citizen, or is settled in the UK, or lives in the UK and has a right to stay without restriction and the other adoptive parent has, or is applying for (and is granted), entry clearance or permission to stay on a route to settlement; or

(d) the adoptive parent has sole parental responsibility, and is applying for (and is granted), entry clearance or permission on a route to settlement; or

(e) one adoptive parent is a British Citizen, is settled, or lives in the UK and has a right to stay without restriction and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance; or

(f) one adoptive parent has, or is applying for (and is granted), entry clearance or permission to stay on a route to settlement and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance.

Successful applicants are granted entry clearance for 24 months, which should allow the adoption to be completed in the UK.

Once adopted, provided one adoptive parent is British, they will become British automatically.

Article 8 and compassionate circumstances

For all routes above, where applicants do not meet some of the requirements, caseworkers must consider whether a refusal would breach Article 8, because it would result in unjustifiably harsh consequences for the applicant or their family. If so, leave must still be granted. The guidance gives more details on how decision makers should consider unjustifiably harsh consequences, and refers to the more general Family Life and exceptional circumstances guidance.

In addition, where applicants raise compassionate factors which do not raise Article 8, decision makers must also consider them and, if appropriate, grant leave outside of the rules.

Note on EUSS adoptions

In most cases, children adopted by parents who have been granted status under the EU Settlement Scheme in their own right (rather than as family members) will also be able to get status under the Scheme. The requirements for those applications are traditionally easier to meet and so anyone who thinks they may fall under the Scheme should start there.

Conclusion

In summary, the rules relating to adoption are all but easy! The options open to adopted children depend on the date and place of adoption and the immigration status of the parents among other factors. Parents will often be well advised to seek both immigration and family law advice, ideally even before adopting if intending to return to the UK, and certainly before making any type of application.

This post was originally published in August 2017 and has been updated to take into account changes to the law since then. It is correct as of the new date of publication.