Simplifying intercountry adoption: new immigration rules published

Adoption and the associated legal processes can appear daunting and complex to prospective adopters, not least when there is the added complication of the adoption taking place overseas. To make the immigration aspects of intercountry adoptions clearer, the Home Office has today (6 June 2024) introduced simplified immigration rules. The new Appendix Adoption of the immigration rules and the accompanying guidance aim to provide more consistent rules for parents wishing to bring their adopted children to the UK.

What is intercountry adoption?

Adoption is the legal process by which an Order of the Court creates a new parent-child relationship and confers parental rights and responsibilities on the adopter. The new relationship effectively replaces the relationship which previously existed in law between the child and their natural parent or parents.

Intercountry adoption is a type of adoption, in which the prospective adopter(s) become the legal parent(s) of a child who is a national of a country overseas.

When does an international adoption confer British citizenship?

Under UK nationality laws, children adopted in the UK will automatically become British at the point that the adoption order is made by a UK court provided the adoptive parent (or one of the parents in the case of a joint adoption) is a British citizen.

The situation for intercountry adoptions differs. There is scope for children adopted under the Hague Convention to acquire British citizenship automatically where at least one parent was a British citizen at the time the adoption order was made, provided the adopting parents were also habitually resident in the UK at the time of the final adoption order.

Those children who do not have an automatic entitlement to British citizenship because of their adoption by a British citizen may however be able to register as British citizens later. In the meantime, such children will need visas to enter the UK.

Why is immigration law relevant?

Subject to certain exceptions, the general position is that a person who is not a British citizen is subject to UK immigration control. This means to enter the UK for the purposes of adoption, a foreign national child will need to apply for prior entry clearance and be granted permission to enter the UK upon arrival.

Children born overseas and either being adopted overseas or being brought to the UK for the purposes of adoption, will invariably be subject to immigration control and will need a UK visa to facilitate their entry to the UK. This will also be in the case in overseas domestic adoptions.

The UK immigration rules set out the requirements to be met before an adopted child can be granted entry clearance to come to the UK from overseas, and the requirements to be met when entry clearance is sought for a child to come to the UK for the purpose of adoption or on the basis that the child is a de facto adopted child. The immigration rules deal with both intercountry and overseas domestic adoptions.

What are the visa routes under the new Appendix Adoption?

Under the new Appendix Adoption, the immigration rules set out the routes in which parents who are British citizens or settled in the UK can bring an adopted child or prospective adopted child into the UK.

These are:

• Hague Convention Adoptions – this refers to the process whereby parents resident in the UK have approached an adoption agency to be assessed and for help in identifying a child in a particular country for adoption;
• Recognised Overseas Adoptions – allows for settlement or temporary permission as a child who has been adopted according to the laws of the child’s country of origin or residence, this being a country whose adoptions are recognised under relevant UK legislation;
• De-facto adopted children – a category that recognises the situation where parents living overseas will have cared for a child in an adoptive way but without access to a legal system in which formal adoption can take place. A specific period of caring for the child’s needs overseas must have been completed prior to the visa application;
• Coming to the UK for adoption – a category that allows a child to come to the UK for the purpose of being adopted.

What is changing with the new Appendix Adoption?

Appendix Adoption aims to make the process of applying for a UK visa for adopted children more user-friendly. Each possible visa route is more easily identifiable and the rules, together with the updated guidance, provide clarity on the evidential requirements for each route.

The changes include:

• Reducing immigration eligibility requirements from both the Hague Convention and Recognised Overseas Adoption routes. This includes removing the requirements for the child to have the same rights and obligations as any other child of the marriage or civil partnership; being adopted due to the inability of the original carer to care for the child; that there has been genuine transfer of parental responsibility and the requirement for the child to have lost or broken ties with their family of origin. These requirements are unnecessary as they are matters that are considered, as appropriate, as part of the formal adoption procedure.
• Clarifying that, where one parent is on a route to settlement, the child will need to meet the financial requirements of the route that their parent is on.
• Confirming that where a child has entered the UK under Appendix Adoption and has been granted temporary permission (for the adoption to be completed in the UK or because one parent has temporary permission on a route to settlement), the child will be able to settle on the route their parent is on or under provisions in Part 8 of the immigration rules once the adoption is complete and their parent has settled.

Furthermore, detailed guidance is provided on when a certificate of eligibility is required as part of a visa application. A certificate of eligibility is evidence that the prospective adopter(s) have been assessed and approved as potential adoptive parents from the relevant Central Authority in the UK. Obtaining a certificate of eligibility can often be a time-consuming process and it is therefore important to understand whether this is a visa requirement at the outset of the adoption process.

Intercountry adoption is a complex and highly specialised area of law. Our adoption lawyers and specialist immigration solicitors work closely together to ensure that issues from both a family law and immigration law perspective are identified early in the adoption process. Should you require advice and assistance with an intercountry adoption, please get in touch with a member of our team.