How do the UK Immigration rules work for you if you have an adopted child or children?
Nationality and immigration laws related to the adoption of children are quite complex. Therefore, to navigate these legal complexities, it is advisable to consult a lawyer who is both experienced and familiar with the casework pertaining to adopted children of British citizens or settled persons.
Here’s a detailed overview of these laws to help you develop a better understanding:
The different types of adoptions in the UK are:
- Overseas Adoption Recognised by the UK Law
This pertains to the countries where the adoption procedures have been approved and recognised by the United Kingdom. Get in touch with our lawyer to learn about these countries in detail.
- Overseas Adoptions That are Not Recognised by UK Law
These adoptions refer to territories or countries that are not listed in the overseas adoption list that is recognised by the UK law. Such cases can be extremely difficult in terms of immigration unless they fall under de facto adoption category.
De Facto Adoptions
De Facto adoptions are defined in paragraph 309A of the Immigration Rules. These include adoption cases where the adoptive parents:
- Are living abroad together for at least 18 months
- Are living with a child together for 12 months
- Have cared for the child for a period of 18 months
It is important to understand that the term de facto adoption is a concept of UK Immigration Rules. In other words, it doesn’t mean anything when referred to family laws. Apart from that, it doesn’t grant parental rights to parents and nationality rights to children.
Automatic British Citizenship for Adopted Children
The two cases where children who are adopted will become British citizens automatically these are:
- If the final order for adoption is certified in compliance with the Hague Convention and one of the adoptive parent is British and a UK resident;
- If the court orders the adoption of the child and where one of the two parents adopting the child is a British citizen.
In such cases, the parents can easily submit an application for the child’s British passport along with proof of their adoption and other required documents.
Registration as a British Citizen
Apart from the two situations discussed above, you will have to register your adopted child under section 3 (1) of the British Nationality Act to become a British citizen. The statutory requirement for this application is that the child should be a minor. However, if the child is above 10 years of age, there is a good character requirement.
Although it is at the sole discretion of the Secretary of State to register any child that they think fit, there is also published guidance for application approval. The guidance states that the Secretary of State shall consider registering a child from a country that is not listed in the designated list in exceptional circumstances.
In general, children that are adopted overseas by a British citizen from a country whose adoption procedures are recognised by the UK law shall be approved. However, they are also subject to additional criteria stated below:
- The adoption is not temporary or informal
- The legal relationship with the birth family of the child is terminated completely
- One of the adoptive parents is a British national
- The adoptive parents have consented
- The caseworker is convinced that the adoption of the child is not one of convenience to facilitate their admission in the country
Entry Clearance and Leave to Remain for Adopted Children
The provisions under the Immigration Rules related to adopted children applying for indefinite leave to remain (ilr) in the UK are stated below. Children adopted by British Citizens or settled persons with ILR shall be granted ILR only when:
- Both parents are settled and present in the UK
- One parent is settled in the UK while the other is dead
- One parent is based in the UK and there are compelling family and other consideration that makes the exclusion of the child undesirable
Under de facto adoption, one parent has the right of abode in the UK and is seeking admission to the UK on the same occasion for settlement purpose.
On the other hand, children shall be granted limited leave to remain in the UK if:
- One parent is settled and present in the UK or being admitted at the same time while the other parent is given limited leave to remain or enter in the UK.
- One parent is given limited leave to remain or enter in the UK and has the sole responsibility for the upbringing of the child.
- One parent is given limited leave to remain or enter in the UK and there are compelling and serious family considerations that make the child’s exclusion inappropriate and where the care arrangements for the child are made.
However, in case of the de facto adoption, one parent has the right of abode in the UK or ILR and is seeking admission in the UK on the same occasion with settlement purpose.