Adopted children and children coming to the UK for adoption

Applications for a UK visa on a child, who have been adopted, can apply on the following basis:

• the adopted child of a parent or parents present and settled in the UK or being admitted for settlement in the UK;
• the adopted child of a parent or parents given limited leave to enter or remain in the UK;
• a child for adoption; or
• a child for adoption under the Hague Convention.

The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK, together with Article 3 of the UN Convention on the Rights of the Child, means that consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them. This guidance and the Immigration Rules it covers form part of the arrangements for ensuring that we give practical effect to these obligations.

You must carefully consider all of the information and evidence provided in the application concerning the best interests of a relevant child (that is a person who is under the age of 18 years at the date of application and it is evident from the information provided by the applicant will be affected by the decision) when assessing whether an applicant meets the requirements of the Immigration Rules and, where they do not otherwise do so, whether there are exceptional circumstances that warrant a grant of leave outside the Rules.

The decision notice or letter must demonstrate that a consideration has taken place of all the information and evidence provided in the application concerning the best interests of a relevant child. You must carefully assess the quality of any evidence provided. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests.

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, but you must bear in mind that adoption is a complex area and not every combination of circumstances and overseas law can be adequately reflected in this guidance. On that basis you must be open to making further enquiries as to the substantive nature of the relationships involved.

A clearly demonstrated parenting role in a young child’s life that is not provided by anyone else, which it is clear will continue, and where it is also clear that the legal status of adoption into that family will be the outcome in the United
Kingdom, will always warrant serious consideration. Adoption of a child in mid to late teens in circumstances where this role could have been taken on much earlier in the child’s life will always warrant closer examination. The decision maker must be satisfied that the adoption is not one of convenience arranged to facilitate admission to the UK before the child becomes an adult.

Article 8 of the European Convention on Human Rights (ECHR)

Everyone has a right under ECHR Article 8 to respect for their private and family life, but it is a qualified right. Article 8 provides that it can be lawful to interfere with the exercise of that right where it is necessary to do so because of public interest considerations, and where the interference is proportionate to the public interest
being pursued.

In the immigration context, this usually means where it is necessary and proportionate for public safety, to safeguard the economic well-being of the UK or to protect the rights and freedoms of others.

ECHR Article 8 states:

• Article 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
• Article 8 (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public
  safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Immigration Rules – now underpinned by primary legislation with regard to the weight to be given to the public interest under Article 8 in immigration cases (see Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by section 19 of the Immigration Act 2014) – set out the position of the Secretary of State on proportionality.

They state how the balance should be struck between individual rights and the public interest in assessing Article 8. They provide clear instructions for the decision maker on the approach they must normally take and they provide the
basis for a clear, consistent and transparent decision-making process. This means that it will be in exceptional circumstances only that a decision made in accordance with the Rules will lead to an outcome which is disproportionate under Article 8. This is likely to occur only rarely.

For persons resident in England and Wales, inter-country adoptions are subject to the Adoption and Children Act 2002 and The Adoptions with a Foreign Element Regulations 2005. There are also some countries which are subject to further adoption restrictions (see Intercountry adoption: list of restricted countries on GOV.UK for more information).

It is a requirement of the Immigration Rules that a child coming to the UK for adoption, or as an adopted child, must have an entry clearance issued for that purpose. However, we have seen cases in which children close to the age of 18, who were granted entry to the UK in another immigration category, e.g. as a student, have been named in applications for adoption made to the Family Court.

The Home Office is not opposed to genuine adoptions, but adoption must not be used as a mechanism for the acquisition of permanent residence and British citizenship by a person close to the age of 18 who would not otherwise qualify for these benefits.

The Family Court may notify the Home Office that an adoption application has been made in the case of a child without entry clearance for that purpose and enquire whether the Home Office wishes to intervene in the proceedings.

Adopted children of EEA nationals will be considered as direct family members in the same way as biological children, where the adoption is recognised as a valid legal adoption by the UK. You must be satisfied that a certificate provided in this context is for an adoption and not for a non-adoptive legal guardianship order. This does not alter the requirement for an adoptive parent to be present and settled in the UK before they can bring a child into the UK for the purpose of adoption.

Thus an EEA national who wishes to bring a non-EEA national to the UK under the Immigration Rules for the purpose of adoption will need to be able to produce evidence of settled status or, residing in the UK while exercising Treaty rights and that they are a qualified person under the Immigration (European Economic Area) Regulations 2016 who can be regarded as qualifying for permanent residence status. (Without this the child would not be able to live permanently in the UK).

There may be instances where an EEA national finds permanent residence or entitlement to permanent residence status difficult to establish definitively (for instance, because although based in the UK they have had periods of residence outside the UK).

Inter country adoptions under the Hague Convention

The 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption was set up to establish an international system of cooperation that aims to prevent the abduction of, the sale of, and illegal traffic in children.

The Convention requires that intercountry adoption happens only when it is in the child’s best interests, that all adopters are assessed and approved as suitable to adopt and that no profit is made from the adoption process. A “convention adoption” is where parents from one signatory country adopt a child from another signatory country, following set procedures.

An adoption order made abroad and certified as valid by the relevant foreign authority under article 23 of the Hague Convention is recognised under UK law. The adoptive parent or parents will be recognised as the parent or parents of the child without needing to obtain an adoption order in a UK court.

Further immigration policies to consider

To comply with UK law, an adopted child from a country whose adoptions are not recognised by the UK will have to enter the UK for adoption here and may qualify for limited leave with a view to settlement whilst the adoption is being finalised.

The adoptive parents may still have to go through the inter-country process prior to the adoption, in the same way as those adopting from a recognised country.

A child who is being brought to the UK for adoption from a country whose adoptions are not recognised by UK law must apply on the online settlement visa application for limited leave to enter the UK with a view to settlement. Their application will be considered under the relevant immigration rules.

If you wish to discuss about legal adoptions and applying for a visa for a child, contact us today on 0207 237 3388, option 1. You can also email us at info@icslegal.com.