This article summarises the Immigration Rules requirements to be met before applying for a visa for an adopted child to enter and remain in the UK from overseas. Adoption is one of the most complex areas of the immigration law and as a result, the application process is lengthy, and it requires the adoptive parents to clearly demonstrate their parenting role in the child’s life. Paragon Law has a specialist immigration team who can carefully examine all of the circumstances of the case and advise whether the case falls within the rules and the steps that can be taken to ensure smooth application process.
An adopted child from overseas can either obtain indefinite leave to enter and remain in the UK or limited leave to enter and remain in the UK. The immigration status that the child will obtain depends on the immigration status of the parents who adopted the child.
In order to obtain indefinite leave to enter and remain in the UK, the child’s parents must be present and settled or being admitted for settlement in the UK. This means that the child is applying for indefinite leave to enter and remain in the UK in order to accompany or join an adoptive parent or parents in one of the following circumstances:
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- Both parents are present and settled in the UK; or
- Both parents are being admitted on the same occasion for settlement; or
- One parent is present and settled in the UK and the other is being admitted on the same occasion for settlement;
- One parent is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead; or
- One parent is present and settled in the UK or being admitted on the same occasion for 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 UK or indefinite leave to enter or remain in the UK and is seeking admission to the UK on the same occasion for the purposes of settlement.
Furthermore, the child must be under the age of 18 and must not be leading an independent life, must not be married or in a civil partnership and must not have formed an independent family unit. The adoptive parent/s must demonstrate to the Entry Clearance Officer that the child will be accommodated and maintained adequately without recourse to public funds in an accommodation which the adoptive parent/s own or occupy exclusively.
There are various other requirements that the Immigration Rules impose on the adoptive parents to meet, namely to prove that a competent administrative authority/court in the child’s country of origin has made a decision for the child’s adoption. Please note that the UK does not recognise adoption orders from certain countries, as the UK is not satisfied that those certain countries follow rigorous adoption process and therefore, it is important to show that the adoption order is made in a country whose adoption orders are recognised by the UK. There are also some provisions in relation to a de facto adoption, which are mentioned briefly below.
The adoptive parents must also be able to demonstrate to the Entry Clearance Officer when making an application on the child’s behalf that the child has the same rights and obligations as any other child of the adoptive parent/s or their family and that the child was adopted because the child’s biological parents/carers were unable to provide care for the child and therefore, there has been a genuine transfer of parental responsibility to the adoptive parents.
The Entry Clearance Officer also requires the adoptive parents to prove that the child has lost or broken his/her ties with their biological family.
Additionally, the child must not have any criminal convictions or pose any danger to the UK society, which would inevitably lead to a refusal of the child’s application. Please also note that the adoption must not be arranged for the purpose to facilitate the child’s admission in the UK.
Those parents who are going through an adoption process are likely to face various hurdles along the way, not just in respect of the actual adoption of the child which can take years until a competent administrative court makes a decision/adoption order, but also, the immigration process that follows thereafter is also extremely thorough and can take months until a decision comes through.
Having a supportive hand from a specialist immigration solicitor throughout this process can really help at times when adoptive parents feel exhausted from navigating the complex immigration process and paperwork.
Furthermore, in the event that a parent who is present and settled in the UK and has has had a sole responsibility for the child’s upbringing, the adopted child may be eligible to apply for indefinite leave to enter the UK.
Alternative to the above, adoptive parents who have limited leave to enter or remain in the UK with a view to settlement can only make an application for limited leave to enter or remain in the UK on the child’s behalf, as opposed to indefinite leave to remain.
In order to obtain limited leave to enter and remain in the UK, it must be demonstrated to the Entry Clearance Officer that either:
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- One parent is present and settled in the UK 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 UK with a view to settlement; or
- One parent is being or has given limited leave to enter or remain in the UK 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 UK 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 UK or indefinite leave to enter or remain in the UK and is seeking admission to the UK on the same occasion for the purpose of settlement.
The remaining requirements for example in relation to age, not leading an independent life, accommodation, etc, remain the same as above. If all the requirements are met, then the child will be granted limited leave to enter and remain in the UK for a period of up to 12 months.
Some common grounds for refusing an application for either limited or indefinite leave to enter and remain in the UK is the inability for the child to present a valid passport or other ID document upon arriving in the UK, the child having a criminal offence which is not conducive to the public good, or lack of sufficient documentary evidence submitted in support of the application.
DE FACTO ADOPTION
As mentioned in this article above, there are certain countries where no legal adoption process exists, but also, there are certain countries where legal adoption procedure exists; however, the system operating in those specific countries is not recognised by the UK. There is a restricted list issued by the Department for Education which lists number of countries where special restrictions are in place, which can be accessed by clicking here: https://assets.publishing.service.gov.uk/media/640b4369d3bf7f02fa988cec/Adoptions_-_restricted_list_-_April_2023.pdf
UK law recognises adoption orders that are made abroad and certified as valid by the relevant foreign authority under article 23 of the Hague Convention.
However, there are some provisions in the Immigration Rules that allow for an adoption to be recognised as having taken place from such countries if the adoptive parents can demonstrate that they have:
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- Lived abroad for a period of at least 18 months (if there are two parents, then both parents must have lived abroad together)
- Lived with and cared for the child for at least the period of 12 months immediately before the application for entry clearance; and
- Assumed the role of the child’s parents for the full 18-month period mentioned above, and there has been a genuine transfer of parental responsibility.
This is often known as a De Facto adoption.
In the event that the adopted child is over the age of 18 (only applicable in an application for indefinite leave to remain in the UK as the adopted child of a parent/s present and settled in the UK), the child must demonstrate sufficient knowledge of the English language and sufficient knowledge about life in the UK. The child must also not be leading an independent life, is unmarried/not in a civil partnership, and has not formed an independent family unit.
Exceptional circumstances
We completely understand from practice that not every scenario can fit well within the Immigration Rules and that, sometimes, there are some circumstances that are exceptional and should be raised as such when making an immigration application. We suggest that if there are any exceptional circumstances, these must be raised at the outset when making an application, so that the decision maker can have the opportunity to review the case as a whole and decide whether the case meets the Immigration Rules, or if not, then whether there are factors raised that may amount to exceptional circumstances which would warrant a grant of entry clearance outside of the rules. This ties in well with the Article 8 ECHR rights, which is the right to a private and family life, as the decision must be compliant with ECHR.
The best interests of the child
It is important to note that in every application, the child’s best interests must be a primary consideration in immigration decisions that affect them. There is a duty to safeguard and promote the welfare of a child in the UK. This means that the decision maker must be satisfied that the child will be well looked after by the adoptive parents if granted leave to enter and remain in the UK.
Conclusion:
The Immigration Rules on overseas adoption of a child are extremely complex and if the application is not dealt with properly at the outset, there is a high risk of being refused.
Please feel free to reach out to one of our immigration solicitors to discuss your and your child’s matter, if you are considering or going through an adoption process whereby you would wish to bring your child to the UK.
Links to the Immigration Rules and the Home Office’s Guidance:
https://assets.publishing.service.gov.uk/media/61a8fa418fa8f50380e903d1/Adoption_guidance.pdf
https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members