The law and rules relating to adoption are complex, and a combination of laws, regulations and international conventions that apply in a variety of scenarios.
In this Blog post, our Umaira Kausar, provides answers to some common questions that often come up when someone is considering adopting a child from another country and plan to bring them to the UK.
Methods of Adoption
There are a few different ways in which you can adopt a child from another country, as follows:
1. Adoptions under the terms of the Hague Convention. You will often hear talk of the Hague Convention when considering adoption, as this applies to inter-country adoptions. However, this only applies between countries that are both signatories. If one of the two countries is not a signatory, the Convention does not apply. For example, an adoption by a British parent of a child in Pakistan would not be considered a Hague convention adoption as Pakistan is not a signatory.
2. Overseas adoptions recognised by UK law. These are adoptions which take place in countries or territories whose adoption procedures are recognised by the UK. There is a list of countries to which this applies, set out in Regulations.
3. Overseas adoptions not recognised by UK law. These are adoptions which take place in countries not listed above. These cases can be very difficult in immigration terms
4. De facto adoptions. These are referred to in the immigration rules, and where they apply, can allow an application to be made under the immigration rules for the child to enter the UK. We discuss this in further detail below.
Can my adopted child be granted British Citizenship?
The answer to this question will depend on the type of adoption:
1. If the adoption was carried out under the terms of the Hague Convention (i.e. both the adopting parent and child are from countries that are signatory to the Convention), and at least one of the adoptive parents is British and resident in the UK the time of the adoption, the child can obtain British Citizenship;
2. If the adoption is carried out in the UK, by a Court of law in accordance with British law, the child will automatically acquire British citizenship;
3. 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.
Immigration Rules: entry clearance/leave to remain for adopted children
For those who do not automatically qualify for British citizenship or cannot register, the immigration rules provide a route of entry to the UK for adopted children.
The immigration rules state that adopted children may be granted indefinite leave to remain where:
1. both parents are present and settled in the United Kingdom; or
2. one parent is present and settled in the United Kingdom and the other parent is dead; or
3. one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing; or
4. 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
5. 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;
What is a De facto adoption?
A de facto adoption is a concept in the UK Immigration Rules. Paragraph 309A of the Immigration Rules states that a de facto adoption will be considered to have taken place where:
(i) The adoptive parents have been living together abroad for at least eighteen months; and
(ii) The adoptive parents have been living together with the child for twelve months; and
(iii) The adoptive parents have cared for the child for the full eighteen month period.
De facto adoptions do not create any rights under family law and do not grant parental rights to parents. However, a de facto adoption does, in some circumstances, provide a route for a child to be granted entrance to the UK under the immigration rules.
Do you need help?
As mentioned at the outset, adoption law and its interaction with immigration law is complex and difficult to navigate. If you require advice and assistance with such a case, our West Yorkshire based Immigration lawyers can help.