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The Theis case: immigration and nationality law for adopted children

The Theis case: immigration and nationality law for adopted children

The story of Patrick Thies, a US NHS surgeon who had to return to the US to apply for a new visa for his two adopted children while his British wife and biological son remained in the UK, made the news a couple of weeks ago.

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 counties 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 recent 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 paragraph 309A of the Immigration Rules as situations where:
  1. The adoptive parents have been living together abroad for at least eighteen months; and
  2. The adoptive parents have been living together with the child for twelve months; and
  3. The adoptive parents have cared for the child for the full eighteen month period.

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 and at least one of the adoptive parent was British and 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 she thinks fit, there is published guidance on when she 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 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 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

This provision should only be used where it is in the child’s best interests to be registered and the child has a strong connection with the UK.

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 in the Immigration Rules to grant limited or indefinite leave to remain or enter for children adopted by British citizens or by individuals who have indefinite leave to remain in the UK. In short, 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;

Children will be granted limited leave to enter in line with the parent instead where

  1. one parent is present and settled in the United Kingdom 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 United Kingdom with a view to settlement; or
  2. one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or
  3. one parent is being or has been given limited leave to enter or remain in the United Kingdom 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
  4. 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;

De facto or recognised adoptions

In the case of de facto adoptions, or adoptions recognised by UK law, applicants can apply for limited or indefinite leave to enter the UK under paragraphs 310-316 of the Immigration Rules. In addition to showing the parents’ immigration status as per above, the children will need to meet all of the following requirements:

  1. both adoptive parents were resident together abroad; or either or both adoptive parents were settled in the United Kingdom at the time of the adoptions;
  2. They can be maintained and accommodated in the UK without recourse to public funds.
  3. They are under 18 and not leading an independent life
  4. the adoption was one which was in accordance with the decision taken by a competent court in the country where the adoption took place; or it was a de facto adoption
  5. They will have the same rights and obligations as any other children of the family,
  6. They were adopted due to the inability of the birth parents to care for them,
  7. There has been a genuine transfer of parental responsibility to the adoptive parent(s)
  8. They have lost or broken her ties with the family of origin
  9. They were not adopted out of convenience to facilitate their admission to the UK
  10. They do not fall for refusal under the general grounds for refusal

In addition, if the application is made less than one year after the adoptions, parents should obtain a Certificate of Eligibility in the UK. This is a long and expensive process, and it might very well be the most practical option to simply wait until the one year anniversary since the adoption before making an application for Entry Clearance.

It is a criminal offence under section 83 of the Adoption and Children Act 2002 to bring an adopted child back to the UK within one year of the adoption without complying with these very strict regulations.

With regards to “de facto adoption”, parents should remember that this is an immigration concept. It does not give any right under family law, and the parents may need to adopt their child under British law once in the UK. The child would then become British automatically at the time of the adoption.

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 paragraphs 316 and 316A of the Immigration Rules.

The requirements are essentially the same than for recognised or de facto adoptions, however parents will need to provide a Certificate of Eligibility, obtained in the UK.

If successful, the prospective adopted children will be given leave for a period of up to 24 months, during which they should be adopted.

Once adopted, they will become British automatically.

Entry clearance for children to be adopted under the Hague Convention

In the case of adoptions under the Hague Convention, it is 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.

Paragraph 316D-F of the Immigration Rules is a specific category for those bringing a child to the UK for completion of an adoption process already begun abroad under the Hague Convention.

To be granted leave under this category, one must show that

  1. The prospective parents are habitually resident in the UK and wish to adopt the child under the Hague Convention
  2. The adoption is in accordance with Article 17(c) of the Hague Convention;
  3. The child has been entrusted to the prospective parents by the competent administrative authority of the country from which he is coming
  4. The child is under 18
  5. The child will be maintained and accommodated adequately without recourse to public funds

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.

Nath Gbikpi
Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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