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Adopting children: immigration and nationality issues in intercountry adoption

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For most would be parents the laws on adoption are a minefield of confusing rules and regulations. Adoptive parents can feel overwhelmed by the emotional drain of the adoption process. The proceedings can feel even more challenging when parents are also having to get to grips with issues surrounding foreign or intercountry adoption and the Immigration and nationality status of their adopted child.

At OTS Solicitors our experienced and caring top London immigration solicitors guide adoptive parents through the Immigration procedures for adopted children. Our specialist London adoption solicitors help adoptive parents secure a UK adoption order (if that is necessary) to make your family complete. In this blog OTS Solicitors demystify the intercountry adoption and Immigration process.

What are the ways to adopt a child from outside the UK?

There are a number of ways that you can adopt a child from a foreign country, namely:

• Adoption under the Hague Convention rules for inter-country adoptions;

• Overseas adoption recognised by UK law. Adoptions take place in countries where the adoption procedure is recognised in the UK;

• Overseas adoptions not recognised by UK law. Adoptions take place in countries where the UK will not recognise the foreign adoption order;

• De facto adoptions. These are not UK legally recognised adoptions but they are referred to in UK Immigration rules.

What is a de facto adoption under UK Immigration rules?

UK Immigration rules say that a de facto adoption is where:

• The adoptive parents have been living together abroad for 18 months or longer; and

• The adoptive parents have been living together with the child for at least 12 months; and

• The adoptive parents have cared for the child during the period.

De facto adoptions are not recognised in UK adoption law. That means the de facto adoption does not give the adoptive parents parental responsibility for the child under UK law or any custody or other legal rights. The de facto adoption does not give the adopted child the nationality of his or her adopted parents. Despite these limitations under Immigration rules de facto adoptions can, in some circumstances, be recognised by Home Office officials.

How do intercountry adopted children gain British Citizenship?

It is far easier for an adopted child to gain British Citizenship if their adoption was a Hague Convention adoption or the child was adopted in the UK. Unless you get advice from a top London immigration solicitors the rules on British Citizenship and adoption can appear to be very confusing. That is because Immigration and nationality law are different depending on how and where the non UK child was adopted.

On adoption a child will get automatically British Citizenship if:

• There is a Hague Convention adoption order provided that at least one of the adoptive parents is a British citizen and habitually resident in the UK at the time the adoption order was made;

• There is a UK adoption order provided that at least one of the adoptive parents is a British citizen at the time the adoption order was made.

If a child is automatically entitled to British Citizenship as a result of the adoption order than the adoptive parents of the child can apply for a British passport for the child.

Registering an adopted child as a British citizen

If a child does not automatically qualify for British Citizenship as a result of their adoption then the adoptive parents can register the child to become British. The current requirements for registration are:

• The application is made while the child is a minor child ;

• The Secretary of State thinks it is appropriate to register the child;

• If the child is over 10 years of age there is a good character requirement.

The Home Office has provided detailed guidance for officials in relation to the registration of a child.

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.

De facto or recognised adoptions

If there is a de facto adoption or an adoption not recognised by UK law, then an adopted child can apply for limited or indefinite leave to enter the UK. In addition to showing the parents’ Immigration status the adopted child will need to meet a number of additional requirements under Immigration rules.

The rules also suggest that unless the adoption is a de facto adoption, the adoptive parents should also obtain a Certificate of Eligibility in the UK.

If there has been a de facto adoption in a country abroad then the adoptive parents will not have any rights over the child in the UK. The adoptive parents may need to apply to adopt the child under British adoption law in the UK. If the adoption order is made in the UK the child would automatically become British at the time of the adoption order.

Entry clearance for children coming to be adopted in the UK

For adoptive parents who have adopted a child outside of the UK in a country where the adoption order is not recognised; or where the adoptive parents intend to adopt in the UK, the parents will need to apply for limited leave to enter the UK under the Immigration rules. If the child was adopted by way of a de facto adoption the adoptive parents may also need to provide a Certificate of Eligibility.

If entry clearance is obtained the prospective adopted child should be given leave to remain for up to 24 months. This gives a window of 2 years for the UK adoption order to be secured. Once adopted, the child should automatically become a British citizen.

There are additional Immigration rules relating to the entry clearance of children adopted or to be adopted under the Hague Convention. The foreign adoption court can entrust a child to his adoptive parents to bring the child to the UK to complete the adoption through the UK courts. To be granted leave the adoptive parents or applicants must meet certain Immigration rule criteria.

What next?

The adoption of a child should be a joyous experience but for many adoptive parents the wait for a child and the stress in sorting out the legal paperwork can make the whole adoption experience feel like a bit of a nightmare. OTS Solicitors are privileged to help adoptive parents navigate complex adoption laws and Immigration rules. As top London Immigration and children solicitors we are uniquely placed to guide adoptive parents through the minefield of adoption and Immigration legislation, providing expert legal know how combined with practical tips from our extensive experience, all delivered in a sensitive, caring manner.

OTS Solicitors cannot promise to make the adoption and Immigration process easy. No top London children solicitor or Immigration solicitor can do that. What OTS Solicitors can offer is the comfort of having an expert in your corner to make the legal process as stress free as possible, knowing that you have the best London children and Immigration solicitors behind you in your quest to adopt.

OTS Solicitors are Legal 500 recommended Immigration solicitors who also specialise in family and adoption law. We are therefore able to provide seamless Immigration and adoption law advice. Please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors and expert adoption solicitors.

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