This National Adoption Week we want to shine a spotlight on immigration and adoption. Immigration and adoption have a lot in common as they can be emotional, stressful and paperwork heavy processes. Our Family team and Immigration team work closely together to help smooth the process for you and your family.
There are different situations where immigration law intersects with adoption law. In some circumstances adopted children automatically acquire British citizenship at the time of the adoption, however, it is important to be aware that this is not always the case and to take action before the child turns 18.
This article will consider the position of adoptions under the terms of the Hague Convention, overseas adoptions recognised by UK law, overseas adoptions not recognised by UK law and de facto adoptions.
Adopted children who are automatically British
Children who are automatically British are adopted by at least one parent who is British and habitually resident in the UK at the time of the adoption order in the UK or when the final adoption order is certified as having been made in accordance with the terms of the Hague Convention. When a child is automatically British at the time of adoption a British passport application can be made without any prior steps.
This can commonly be seen when a step-parent adopts a step-child. If a step-child is already in the UK and holds a different type of visa, such as a dependant visa, adopting the child through a UK court could confer British citizenship on the child. This would eliminate the need for future visa applications and secure the child’s nationality status.
Registering an adopted child as British
Unless a British parent is habitually resident in the UK at the time of the adoption a child adopted overseas will not be British. This means that even though they have a British parent the adopted child will not become British at the time of the adoption. This can be a surprise to many adoptive parents, and it is important to take action before the adopted child turns 18.
An application to register the child as a British citizen can be made at any time up until the child’s 18th birthday. A key factor here is the country where the child was adopted from. Scotland recognises adoptions made on or after 3 January 2014 in the countries listed on The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013 and its amendment. The list of countries is extensive but if the country were the child was adopted from is not on this list registration as a British citizen is only possible if there are exceptional, compelling or compassionate circumstances.
Our team can assist in both circumstances and can provide guidance on evidence that will be needed to prepare the strongest application for the child’s registration application.
De facto Adoptions
The Immigration Rules permits children to enter the UK when there has been a “de facto adoption”. “De facto” means “from the fact” in Latin. It is a legal concept used to refer to what happens in reality. In certain circumstances, such as in countries where adoption is not recognised or where it is not possible for some parents to formally adopted applying for the child to enter the UK under paragraph 309A of the Immigration Rules as a “de facto” adopted child may be the best option.
De facto Adoptions are not a family law concept. They do not confer nationality or parental responsibility. The requirements are strictly applied and they include that the adopted parents must have been living with the child for at least 18 months, including 12 months immediately preceding the application, the de facto adopted parents must have assumed the role of the child’s parents, since the beginning of the 18 month period and the child should have no ties with their biological parents.
These applications are very complex and we recommend speaking to our experienced Immigration team as soon as possible to obtain advice on how best to prepare this application.
Individuals who require further information and advice about adoption and immigration should contact our specialist immigration team on 03330 430350 or email lcrichton@thorntons-law.co.uk. If you have questions about family law in Scotland our Family team can be contacted on 03330 430 150 or by emailing Lynne Sturrock lsturrock@thorntons-law.co.uk.
