International adoption and UK immigration status

The UK has implemented the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption (the “Hague Convention”).

A final overseas adoption under the Hague Convention can result in your adopted child(ren) automatically acquiring British citizenship under the British Nationality Act 1981 (the “1981 Act”), which would enable you to apply for a British citizen passport for them.

The immigration requirements are:

• as the adoptive parent(s), you (and/or your partner)
  • are from the UK (which is a signatory party to the Hague Convention)
  • have British citizenship
  • are habitually resident in the UK
• the adoption takes place in another country which is also a signatory party to the Hague Convention, where the child(ren) is/are from (e.g. USA)
• the final adoption order is certified in terms of the Hague Convention with the issuing of an “Article 23 Conformity Certificate” in the country where the adoption took place.

However, some signatory parties to the Hague Convention (e.g. Thailand and the Philippines) will not issue a final adoption order, but will instead allow for a temporary guardianship arrangement for your child(ren) to live in and be adopted in the UK.

In this situation, you will need to apply for a UK visa to allow the child(ren) to return with you and finalise the adoption process in the UK. The visa is usually valid for up to 2 years.

The visa requirements are similar to the above, and in addition will require:

• the adoption to be the subject of an agreement under the Hague Convention
• the child(ren) to be
  • under the age of 18
  • coming for adoption in the UK under the Hague Convention
  • maintained and accommodated adequately by you (and/or your partner) as the prospective parent(s)
• a letter from the relevant Central Authority in the UK confirming that a Certificate of Eligibility has been provided (to confirm the above).

All other adoptions do not automatically confer British citizenship under the 1981 Act, though you may be able to apply for your adopted child(ren) to be registered as British.

This is on a discretionary basis with the only statutory requirements being:

• your child(ren) is/are under 18 at the date of the application
• the Home Secretary thinks fit to register your child(ren)
• the “good character” requirement is met (if your child(ren) is/are aged 10 or over)

Depending on the logistics, and the circumstances, it will potentially be easier and quicker to apply for the necessary visa first, to allow your adopted child(ren) to return with you to the UK, then apply for them to be registered as British.

Where an application to register your child(ren) as British is refused, it is not a decision which can be appealed.

However, there is the possibility of challenging the decision by judicial review which usually looks at the lawfulness of the decision, albeit this is a long and expensive process.

Overseas adoption recognised under UK laws

An overseas adoption will be recognised in the UK if:

• it took place before 3 January 2014, and the country where the adoption took place is listed in the Adoption (Designation of Overseas Adoptions) Order 1973
• on/ after 3 January 2014, and the country is listed within the relevant Regulations, which in Scotland are the Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013, and the Adoption (Recognition of Overseas Adoptions) (Scotland) Amendment Regulations 2013

If the overseas adoption is recognised, it is likely that your child(ren) will be registered as British under the 1981 Act, if the additional criteria are met, including:

• 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
• 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
• the adoption is not one of convenience arranged to facilitate the child's admission to the UK

It may still be possible to register if some or all of the above are not met, and there are exceptionally compassionate or compelling circumstances.

As the adoptive parent(s), your (and/or your partner’s) immigration status in the UK will determine the visa requirements and the length of the visa, which will usually be valid for either:

• up to 12 months (initially, and thereafter extendable for the same period)
• permanently

The visa requirements are similar to the above, and may also require:

• providing a Certificate of Eligibility
• you meeting the financial requirement (e.g. broadly earning a minimum salary of £18,600 gross per annum)
• the adopted child(ren) meeting the English language requirement and passing the Life in the UK Test, where the rules require, and they are aged 18 or over

Overseas adoption not recognised under UK laws

Where an overseas adoption is not recognised in the UK, an application to register your child(ren) as British will normally be refused.

It may still be possible to register if there are exceptional, compassionate or compelling circumstances.

Otherwise, the child(ren) must apply for the appropriate visa to come to the UK and be adopted here. This is again similar to the terms above including:

• the need to provide a Certificate of Eligibility
• where applicable, you meeting the financial requirement (e.g. broadly earning a minimum salary of £18,600 gross per annum)

The visa will usually be valid for up to 2 years to allow the adoption to be completed in the UK.

“De facto” adoption

A “de facto” adoption is a concept under UK immigration law, and not a separate type of adoption process under family laws.

Where the following are met, a de facto adoption is considered to have taken place where, as the adoptive parent(s), you (and/or your partner) can show you have:

• lived abroad for a period of at least 18 months
• lived and cared for your child(ren) for at least the period of 12 months immediately before applying for the visa
• assumed the role of the child(ren)’s parent for the full 18-month period (as above) and there has been a genuine transfer of parental responsibility

The types of circumstances where a de facto adoption might arise include:

• the adoption order in the country where your child(ren) was/were adopted are not recognised as valid in the UK
• you (and/or your partner) are caring for your child(ren) in a country which does not recognise adoption
• despite the country in which you are living being a Hague Convention or designated country, you (and/or your partner) are unable to adopt there because, for example, you are not able to satisfy that country’s particular requirements

The visa requirements are again similar to the above, although a Certificate of Eligibility won’t usually be required. The length of the visa will range in the following, depending on the circumstances:

• up to 12 months (initially, and thereafter extendable for the same period)
• permanently

Where it has not been possible to register your child(ren) as British, or where this application has been refused, and a visa has been granted to allow the adoption process to take place in the UK, your child(ren) will automatically become a British citizen on the date of the adoption, in terms of the UK court order.