Children: SET07 (archived version)

Question 1

1. SET7.1 What are the settlement provisions for children under the Rules?

Accepted Answer

Immigration Rules for settlement for children

There are various provisions under the Rules whereby children can be considered for entry to the UK either for immediate settlement or with a view to settlement. They are:

A child who wishes to join or accompany a parent, parents or a relative who is either present and settled in the UK or will be admitted for settlement on arrival. (SET7.12)
A child who wishes to join or accompany a parent when the parent has limited leave to enter or remain in a category leading to settlement. (SET7.13)
A child born in the UK on or after 1 January 1983 but who is not a British Citizen. (SET7.14)
A child accompanying or joining adoptive parents (including adoptions in the UK or in designated countries, children coming for adoption in the UK, and de facto adoptions). (SET7.18-23)
A child over the age of 18 years. (SET7.7)
A child of a fiancé(e) / proposed civil partner. (SET7.16)
A child of a polygamous marriage. (SET7.17)

Question 2

2. SET7.2 How is a parent defined under the Rules?

Accepted Answer

Definition of a parent as defined under the Rules

Question 3

3. SET7.3 Prospective Parents with Rights of Residence under the EEA Regulations (EEA Nationals and their Family Members)

Accepted Answer

3.1 SET7.3.1 Permanent Rights of Residence under the EEA Regulations

European Economic Area (EEA) nationals (EUN1.2) and their non-EEA national family members residing and exercising Treaty rights in the UK are not “settled” for the purposes of the Immigration Rules, unless they have acquired permanent rights of residence in the UK under the EEA Regulations (Regulation 15). If they have not acquired permanent rights of residence they cannot sponsor the entry of a child under the Immigration Rules.

EEA Nationals and their non-EEA national family members will normally acquire the right to reside in the UK permanently when they have resided in the UK in accordance with the EEA Regulations for a continuous period of five years. An EEA national may apply for a ‘document certifying permanent rights of residence’ and their non-EEA national family members may apply for a ‘permanent residence card’. However, no residence documentation is required under the EEA Regulations.

Continuity of residence is not affected by temporary absences (generally not exceeding 6 months per year). Permanent residence can only be lost if the EEA national / the non-EEA national family member leaves the UK for a period exceeding 2 consecutive years.

Note: Time spent in the Channel Islands / Isle of Man does not count towards the 5 year qualifying period. The Channel Islands / Isle of Man do not form part of the UK. They are Crown Dependencies and are therefore not part of the EU nor of the EEA. Residents of these islands will need to contact their island’s own Governments concerning immigration arrangements and adoption procedures.

3.2 SET7.3.2 Assessing if the parent has acquired Permanent Rights of Residence

When making an application for Entry Clearance for a child to the UK under the adoption provisions in the Immigration Rules, EEA nationals and / or their non-EEA national family members must be able to demonstrate that they have acquired permanent rights of residence in the UK. If the prospective parent (or parents) does not hold a document confirming their permanent rights of residence in the UK, they may provide other evidence of their status, which might include:

A letter from an employer confirming the time spent in employment, P60s or recent wage slips
An accountant’s letter, Inland Revenue Self-Assessments forms, invoices/ receipts, payment of tax and national insurance contributions to demonstrate self employment
A letter from an educational institution confirming studies
A bank statement (or similar) and evidence of comprehensive sickness insurance to show self-sufficiency.

Further guidance on permanent rights of residence is at EUN1.8 but if the ECO is still in doubt as to whether a permanent right residence has been acquired, they should contact Family Operations Policy.

Question 4

4. SET7.4 Assessment of a child’s age

Accepted Answer

In countries without reliable systems of birth registration, cases may arise where there is doubt about the age the children claim to be.

The use of x-rays to assess the age of children is not admissible. Doctors must not be asked to use radiological data when giving age assessments.

A physical examination by a doctor can be helpful in establishing the age in such circumstances, but any assessment can be only an approximation.

The ECO will need to consider any assessment of age by a doctor in conjunction with other available evidence of age.

Question 5

5. SET7.5 The Children under 12 concession

Accepted Answer

This was withdrawn on 29 March 2003.

Question 6

6. SET7.6 What is the position of children who become 18 before a decision is reached?

Accepted Answer

Although the Rules normally require all applications to be decided in the light of the circumstances existing at the time of the decision, an exception to this is made in accordance with paragraph 27 of the Rules.

Question 7

7. SET7.7 Can children over 18 qualify?

Accepted Answer

Any ‘child’ aged 18 years or over must qualify for settlement in his / her own right unless there are exceptional circumstances. If there are exceptional circumstances the application may be considered under the Rules on Other Dependant Relatives. (SET08 Parents, grandparents and other dependant relatives).

Question 8

8. SET7.8 What is sole responsibility?

Accepted Answer

A sponsoring parent (see SET7.2) must be able to show that he/she has been solely responsible for exercising parental care over the child for a substantial period.If the sponsoring parent and child are separated, the child will normally be expected to have been in the care of the sponsoring parent’s relatives rather than the relatives of the other parent. An application should normally be refused if the child has been in the care of the other parent’s relatives and the other parent lives nearby and takes an active interest in the child’s welfare.

The following factors should be considered in assessing sole responsibility:

Are the parents married / in a civil partnership?
If the parents’ marriage / civil partnership is dissolved, which parent was awarded legal custody, which includes assumption of responsibility for the child?
Where there is a custody order the ECO should take care to ensure that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order. See list for countries whose custody orders can be recognised as valid in UK (copy is available on this guidance page).
Does the marriage / civil partnership subsist, but the parents do not live together?
If the sponsoring parent migrated to the UK, how long has the sponsoring parent been separated from the child?
If the sponsoring parent migrated to the UK, what were the arrangements for the care of the child before and after the sponsoring parent migrated?
If the sponsoring parent migrated to the UK, what has been / what is the sponsoring parent’s relationship with the child?
Has the sponsoring parent consistently supported the child, either by:direct personal care; or by regular and substantial financial remittances?
By whom, and in what proportions, is the cost of the child’s maintenance borne?
Who takes the important decisions about the child’s upbringing, for example where the child lives, the choice of school, religious practice etc?

Question 9

9. SET7.9 What are ‘Serious and compelling family or other reasons’?

Accepted Answer

The ECO should consider all the evidence as a whole, deciding each application on its merits:

Are the circumstances surrounding the child exceptional in relation to those of other children living in that same country?
Are there emotional and / or physical factors relating to the sponsoring parent in the UK?
Are there mental and / or physical factors relating to the non-sponsoring parent? Where the physical / mental incapability of the non-sponsoring parent has been established, an entry clearance should normally be granted.

But not considered acceptable as a ‘serious and compelling’ reason under this provision:

that the UK offers a higher standard of living than in the child’s own country.

Question 10

10. SET7.10 What are the maintenance and accommodation requirements?

Accepted Answer

Details are available in Maintenance and accommodation (MAA) guidance.

Question 11

11. SET7.12 How do children of parent(s) or a relative settled (or to be admitted for settlement) in the UK qualify?

Accepted Answer

Immigration Rules Paragraph 297

16.1 When entry clearance must be refused

Under the Rules (Paragraph 296 in conjunction with 278) a child should be refused entry clearance if the child’s parent is party to a polygamous marriage and there is another person living who:

is the wife or the husband of the sponsor and who is, or at any time since marriage to the sponsor has been, in the UK; or
has been granted right of abode or entry clearance to enter the UK as the spouse of the sponsor.

Unless sole responsibility (see SET7.8) can be demonstrated by the sponsor, Paragraph 296 overrides all other provisions in the Rules relating to children including:

the now withdrawn Under 12 Concession (SET7.5); and exceptional
consideration given outside the Rules.

The child will not normally qualify under paragraph 297(f) while the natural mother is alive and still able to look after the child, unless there are serious and compelling circumstances [ see section below on when an entry clearance may be granted].

16.2 When entry clearance may be granted

If the mother from a polygamous marriage dies and the present father is the child’s natural father and he is settled/to be admitted for settlement in the UK, the child may qualify for settlement or entry with a view to settlement in the normal way. In these circumstances, all the requirements relating to children joining/accompanying two parents (SET7.12 and SET7.13) must be met. This is because for the purposes of the Rules the the stepmother becomes the mother of the child upon the natural mother’s death.

The child will not normally qualify under paragraph 297(f) while the natural mother is alive and still able to look after the child, unless there are factors in the child’s circumstances which are serious and compelling (SET7.9) in comparison with the ordinary circumstances of children in that country and which indicate that the child would not receive adequate care and attention there. Satisfactory arrangements for the child’s care in the UK would still need to be shown.

16.3 Effect of the Legitimacy Act 1976

The Legitimacy Act 1976 (amended by the Family Law Reform Act 1987) states that the child of a void marriage should be regarded as the legitimate child of the parents if:

at the time of the insemination resulting in the birth, or
where there was no natural insemination, the child’s conception, or
at the time of the celebration of the marriage, if later either or both of the parents reasonably believed themselves to be validly married and the father was domiciled in England or Wales.

This applies even if the belief that the marriage was valid was based on a mistake as to the law.

On account of the father’s domicile at the time of the marriage, the Act therefore allows for the children of certain polygamous marriages which are void in the UK, to be considered legitimate.

It follows that some children of void marriages will be able to claim British citizenship. However only a UK court can decide on the validity of a marriage under the laws of the UK.

A notification procedure which must be followed when a child is issued a Certificate of Entitlement under the provisions of the 1976 Act is described in the chapter on right of abode. (Right of Abode - ROA)

When an ECO needs to consider whether either of the parents reasonably believed the marriage to be valid, it should be remembered that:

a woman who enters into a polygamous marriage in a country which allows polygamy will normally have no reason to suppose that such a marriage would be considered invalid under the laws of the UK.

This means in practice that unless there is clear evidence to cast doubts on the existence of a ‘reasonable belief’ by the parents, such a belief should be presumed by the ECO. It would not, however, be appropriate to presume such a belief, if, for example, the couple had been told before the conception of the child that the courts in the UK would not regard the marriage as valid.

If a child is regarded as

legitimate under the Legitimacy Act; and,
before the child’s birth the father was registered or naturalised as a British Citizen (or, before 1 January 1983, as a citizen of the UK and Colonies),

the child will have a claim to British citizenship by descent and will automatically have the right of abode in the UK. However, the child will have to prove this status by possession of a British passport. This status will not render his / her mother eligible for entry to the UK as a ‘wife’ if the marriage to the child’s father is clearly void. (Although it may be that the mother will eventually qualify for admission as a dependant of her son / daughter).

Question 17

17. SET7.18 How do adopted children qualify for settlement?

Accepted Answer

17.1 SET7.18.1 Adoption is a complex subject.

The ECO should always bear in mind that the child’s welfare is paramount. The ECO must be satisfied that the child is not being trafficked to the UK. This is to meet the UK’s obligations under the Council of Europe Agreement on action against human trafficking.

In the case of UK-based adopters hoping to adopt a child which has been given or ‘gifted’ to them by relatives abroad, there is very little chance of them being able to bring the child into the UK. The UK’s international obligations prevent any acceptance of such practices. Even if a foreign adoption has been completed, the requirements of the Immigration Rules will prevent an entry clearance being issued to such a child.

The Adoption and Children Act 2002 (which came into effect on 1 June 2003) makes it a mandatory (but not a retrospective) requirement for all prospective adoptive parents to have been assessed by a competent body that they are suitable to become adopters and obtain a Certificate of Eligibility from the Department of Education. The Adoptions with a Foreign Element Regulations 2005 created the requirement for overseas adopters to have a Certificate of Eligibility - and set the penalties for non-compliance. But see section below for variations.

Any adoption in a designated country, which pre-dates the introduction of the 2002 Act, should be dealt with under the old legislation. In these cases the ECO should not insist on the adopters producing a Certificate of Eligibility.

Variations to Adoption Law within the UK

As there are variations it is imperative that the ECO refers to the Department for Education or the relevant devolved authority for the current requirements:

England:Inter-country Adoption Team, Children & Young People’s Group Department for Education, Area D, Ground Floor, Mowden Hall, Staindrop Road, DARLINGTON, County Durham, DL3 9BG Tel: 01325 39 13 34 Fax: 01325 391 396 e-mail: ica.darlington@dfes.gsi.gov.ukWebsite: www.education.gov.uk

Scotland: Scottish Executive - Inter-country Adoption, Children and Young People’s Group, Area 2C, Victoria Quay, Edinburgh, EH6 6QQ Telephone: (+44) (0)131 244 3663 Fax: (+44) (0)131 244 3547 Website: www.scotland.gov.uk

Wales: National Assembly of Wales - Adoptions with a Foreign Element, Children’s Health and Social Care Directorate, Cathays Park, Cardiff, CF10 3NQT elephone: (+44) (0)29 2082 3676 Fax: (+44) (0)29 2082 3142 Website: www.wales.gov.uk

Northern Ireland: Department of Health, Social services and Public Safety, Childcare Policy Directorate, Castle Buildings, Stormont, Belfast BT4 3SQ Telephone: (+44) (0)28 9052 2942Fax: (+44) (0)28 9052 2500Website: www.dhsspsni.gov.uk

Isle of Man: Isle of Man Adoption Service, 3 Albany Lane, Douglas, Isle of Man, IM2 3NS Tel: 01624 625 161 / 678 301 Fax: 01624 678 304 e-mail: general@mcaws.org.im

Guernsey States of Guernsey Health and Social Services Homefinding Services, Garden Hill Resource Centre, The Rohais, St. Peter Port, GuernseyGY1 1FB

Jersey: States of Jersey Health and Social ServicesChildren’s Services, Maison Le Pape, The Parade, St. Helier, Jersey, JE2 3PUTel: 01534 623 500Fax: 01534 623 598

17.2 SET7.18.2 Home Office Adoption leaflet

Post should ensure that the Home Office leaflet: Inter-country Adoption and the Immigration Rules is accessible on the visa section website, and that hardcopies are available for distribution. The leaflet also gives advice on nationality. The ECO should be familiar with its contents. A copy is available on this guidance page.

17.3 SET7.18.3 Types of adoption and who decides the application

The ECO should decide into which of the following categories the application falls and, therefore, who deals with the application:

Children adopted in the UK or overseas in a country whose adoption orders are recognised - the Designated List (This refers to the list of countries that are named on the Adoption - Designation of Overseas Adoptions - Order 1973. The UK automatically recognises an adoption made in any of the countries named on the Designated List).The Designated List(the list is currently being reviewed by the Department for Education, under the provisions of the Adoption and Children Act 2002. Further information on the progress of the review will appear on the Department for Education website).For decision at Post under Rules paragraphs 310 - 314
Children who have been adopted in a Hague Convention country For more information on the Hague Convention:What is the Hague Convention?List of countries who have brought the Hague Convention into force.The ECO should note that the UK will not recognise all adoptions, be they domestic or inter-country, made in these contracting states. Only adoptions made and certified between two contracting States under the terms of the Hague Convention will be recognised as legally valid.The ECO must also note that the list of countries is subject to change as additional countries sign up and ratify or accede to the Convention or there are other changes. It is therefore important to visit the Hague Convention website to obtain the most up to date list.When looking at the lists on the Hague website, the most important column to note is that showing ‘EIF’ (Entry into Force). If there is no date in this column, the country will not be eligible to make Adoption Orders under the terms of the Convention. (At the time of writing, the Republic of Ireland and the Russian Federation are on the list but have not yet brought the Convention into force and so cannot make Hague Convention Adoption Orders.)For decision at Post under Rules paragraphs 310 - 314
Children coming for adoption in the UK, including where a child has been adopted overseas but in a country whose orders are not recognised For consideration under the Rules paragraph 316A. Mandatory referral to the Departments responsible for adoption in England, Scotland, Wales and Northern Ireland (see SET7.21 for referral requirements).
Where an adoption is considered, de facto, to have already occurred For decisions under the Rules paragraph 309A and the relevant sub-paragraphs of Rules paragraph 310.

17.4 SET7.18.4 The effect of overseas adoptions in UK law

Overseas adoptions do not confer British citizenship. The exceptions are adoptions under the terms of the Hague Convention which have been completed abroad and where the final Adoption Order has been issued by the courts in the child’s originating country.

In this case, if at least one of the adoptive parents was a British citizen at the time the adoption order was made and the adopting parent; or in the case of a joint adoption, both adopting parents, was (were) habitually resident in the UK at the time of the final adoption order, then the child will automatically become a British citizen. In such cases a British passport can be issued to the child rather than an entry clearance.

Where an overseas adoption has not conferred British nationality the sponsors sometimes decide to adopt again through the UK courts, even though the overseas adoption is recognised.

If adopting again through the UK courts, sponsors should:

Consult the Department for Education (if the sponsors are resident in England), or the relevant Devolved Authority (if the sponsors are resident in Wales, Scotland or Northern Ireland) about the documentation required from the child’s country of origin. For convenience, the sponsors should try to obtain such documentation before they return to the UK.
Notify, within 14 days of their arrival back in the UK, their local authority Social Services Department of the child’s and their own circumstances.

Question 18

18. SET7.19 Entrustment orders

Accepted Answer

18.1 SET7.19.1

Paragraph 316D-F is a specific category for those bringing a child to the UK for completion of an adoption process already begun abroad under the Hague Convention. It is where the foreign adoption court ‘entrusts’ the child to the adopters who then bring the child to the UK and complete the adoption through the UK courts.

Entrustment Orders, fall under the provision in paragraph 316D where:

The adoption is in accordance with Article 17(c) of the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption 1993;
Where at least one of the adopting parents is “habitually resident” (see below) in the UK; and,
The parents complete a Hague Adoption through the relevant central authority (see SET7.18) in the UK and the central authority in the child’s country of origin; and,
UK Visas and Immigration confirms the Article 17(c) agreement by due notification with the Department for Education or relevant Devolved Authority.

18.2 SET7.19.2 What documentation is required for an Entrustment Order?

An Entrustment Order made under the terms of the Hague Convention.The ECO must be aware that not all adoption orders made in a Hague Convention signatory country are valid under the Hague Convention. Only adoption Orders made under the terms of the Hague Convention are so valid. An example of this is India. Adoption Orders made under the terms of the Hague Convention are recognised but not any other ‘domestic’ Indian adoption Orders.

The ECO should check the Hague Convention website for the latest list of Hague Convention signatory and acceeded countries.

18.3 SET7.19.3 What are the immigration requirements for an Entrustment Order under the Hague Convention?

Paragraph 316D

18.4 SET7.19.4 What does ‘habitually resident’ mean?

Only persons who are present and settled in the UK will be granted entry clearance under this category although the rules only require ‘Habitual Residence’.

The term ‘habitually resident’ is used in the Hague Convention. Although the Rules state that the prospective adoptive parents must be ‘habitually resident’ in the UK, there is no definition of ‘habitually resident’ in relevant legislation.

Prior to making an Article 17 (c) Agreement with the Central Authority of the child’s home country, the Department for Education or the appropriate Devolved Authority will ask UK Visas and Immigration to carry out a check on the immigration and nationality status of the prospective adopters.

The Department for Education or Devolved Authority will be advised by UK Visas and Immigration that they can proceed to make the Article 17 (c) Agreement where:

the prospective adopters are British Citizens; or,
have Indefinite Leave to remain; or,
have evidence that they have acquired Permanent Residency under EU Law,

if the prospective adopters are:

not British Citizens; or,
do not have Indefinite Leave to remain; or,
do not have evidence that they have acquired Permanent Residency under EU Law,

UK Visas and Immigration will contact the Department for Education or Devolved Authority and advise that the prospective adopters do not have the legal capacity to sponsor the entry of a dependent child under the Immigration Rules and that the Article 17(c) agreement must not be made.

Where there is any doubt as to whether the adopter(s) are habitually resident, for instance they have lived outside the UK for a period and claim not to reside in the UK, they must provide the ECO with written evidence that they have obtained independent legal advice to support their contention. Such evidence must be sworn and signed under oath in front of a solicitor who is also a Commissioner for Oaths.

Question 19

19. SET7.20 Interim adoption orders

Accepted Answer

Some Hague Convention countries, and some “designated” countries, such as the USA, Uganda and Malawi, will issue an interim adoption order to allow the child to live with the adopting parents. This can be converted to a full order at a later date (normally six or twelve months after the date of the interim order, but this period can differ depending on the State in which they are adopting; for example, USA - 6 or 12 months, Uganda - 3 years). An interim adoption order is not valid under UK law. An entry clearance must not be issued in some other category, for example, as a visitor.

If an interim adoption order from a Hague Convention or a ‘designated’ country has been issued, and all the other requirements of the Rules relating to adoption can be met, an entry clearance can be granted to the child.

Where the parents intend to adopt a child, (who is the subject of the interim adoption order in a non-Hague Convention country), through the Courts in the UK, the case should be considered under paragraphs 316A-CofHC395 relating to ‘for adoption’.

In these cases, the ECO should email UK Visas and Immigration on Adoption.enquiries@homeoffice.gsi.gov.uk, using the subject heading ‘ECO notification - non-Hague Convention interim adoption order’, with the following information:

the date entry clearance was issued,
the child’s full name and date of birth, and
the adoptive parent(s)’ full names and address.

Where the parents intend to adopt a child (who is the subject of the interim adoption in a Hague Convention country) through the Courts in the UK, the case should be considered under paragraphs 316D-F relating to ‘for adoption’.

Where the parents are waiting for the interim adoption order to be made final in the Hague Convention or ‘designated’ country, the case should be considered exceptionally outside the Rules. Posts should refer such applications to RCU. If RCU decide that entry clearance should be issued, the appropriate entry clearance will be ‘Adoption CYR’. A child holding such an entry clearance should be granted 12 months leave to enter on arrival. An application may be made for the time limit on a child’s stay to be removed on completion of the adoption proceedings.

Question 20

20. SET7.21 How children adopted in designated countries qualify

Accepted Answer

20.1 SET7.21.1 What documentation is required?

In addition to the documents needed to cover the maintenance and accommodation requirements (see Maintenance and Accommodation (MAA) guidance), the ECO should ask for the following:

The child’s original birth certificate showing its name at birth.
A report from the overseas equivalent of the social services department detailing the child’s parentage and history, the degree of contact with the original parent(s), the date, reasons and arrangements for the child’s entry into an institution or foster placement and when, how, and why the child came to be offered to the adoptive parent(s).
In the case of an adoption by a relative where a social services report may not be available, the adoptive parent(s) should be asked for a statement in writing covering the same points.
Where the child has been abandoned, a certificate of abandonment from the authorities previously responsible for the child’s care.
The adoption order.

Adopted children who qualify for indefinite leave

The ECO must be satisfied that the child is seeking to accompany or join an adoptive parent / parents under one of the following circumstances:

both parents are settled in the UK; or
both parents are to be admitted for settlement on the same occasion as the child; or
one parent is settled and the other is to be admitted for settlement on the same occasion as the child; or
one parent is dead and the other is settled / to be admitted for settlement; or
one parent has had sole responsibility for the child’s up-bringing and is settled / to be admitted for settlement; or
one parent is settled / to be admitted for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

In addition the adoptive parent(s) must show that the child:

is under the age of 18;
is not leading an independent life, is not married / in a civil partnership and has not formed an independent family unit;
will be maintained and accommodated adequately without recourse to public funds in accommodation which the adoptive parent(s) own or occupy exclusively;
was adopted in a country designated in the Adoption Order 1973 and at a time when either both adoptive parents were resident together overseas or an adoptive parent was settled in the UK;
has the same rights as any other child of the marriage;
was adopted due to the inability of original parent(s) or current carer(s) to care for him/her and there has been a genuine transfer of responsibility to the adoptive parents and has lost or broken ties with the original family;
has not been adopted merely to facilitate entry to the UK.

Endorsements: see ECB13 Endorsements

Adopted children who may enter with a view to settlement

If one of the adoptive parents only qualifies for limited leave to enter with a view to settlement, the child may qualify to accompany or join such a parent under Paragraph 314 of the Rules. The ECO must be satisfied that the adoptive parent(s) qualify under the following:

one parent is settled/to be admitted for settlement and the other parent is to be or has been given limited leave to enter or remain in the UK with a view to settlement; or
one parent has sole responsibility for the child’s upbringing and is to be or has been given limited leave to enter / remain in the UK with a view to settlement; or
one parent is to be or has been given limited leave to enter / remain in the UK with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care.

In addition the adoptive parent(s) must show that the child:

is under the age of 18;
is not leading an independent life, is not married / in a civil partnership and has not formed an independent family unit;
will be maintained and accommodated adequately without recourse to public funds in accommodation which the adoptive parent(s) own or occupy exclusively;
was adopted in a country designated in the Adoption Order 1973 and at a time when either both adoptive parents were resident together overseas or an adoptive parent was settled in the UK;
has the same rights as any other child of the marriage;
was adopted due to the inability of original parent(s) or current carer(s) to care for him/her and there has been a genuine transfer of responsibility to the adoptive parents and has lost or broken ties with the original family;
has not been adopted merely to facilitate entry to the UK.

Endorsements: see ECB13 Endorsements

Question 21

21. SET7.22 What happens for children coming for adoption?

Accepted Answer

21.1 SET7.22.1 Mandatory deferral

Entry clearance applications made by or on behalf of children coming to the UK for the purpose of adoption must be deferred to the relevant Lead Department in the UK (see SET7.18.1) to ensure that the Social Services have approved the prospective parents for adoption and completed a home study and for the lead department to assess the likelihood of the adoption being successful in the UK courts.

If the child is related to the prospective parents, consideration may also be given to the application under paragraph 297 of the Rules (see Children of parent(s) or a relative settled (or to be admitted for settlement) in the UK (see SET7.12 above).

21.2 SET7.22.2 Entry clearance for children nearing the age limit for adoption

Priority must be given to applicants approaching 17 years of age. This is because a child must have lived with the prospective parents for at least 12 months before an adoption order can be made. Prioritising such applications ensures that an entry clearance does not fail merely because of the passage of time. Nobody aged 18 or over can be adopted under the laws of the UK.

The ECO should refuse entry clearance to a child who is already 17 unless he / she is related to the prospective parents. If the child is related, the ECO should refer the application to UK Visas and Immigration for a decision.

21.3 SET7.22.3 Documents to be produced

The child’s original birth certificate showing its name at birth
A report from the overseas equivalent of the social services department detailing the child’s parentage and history, the degree of contact with the original parent(s), the date, reasons and arrangements for the child’s entry into an institution or foster placement and when, how, and why the child came to be offered to the adoptive parent(s).
Where a report from the local equivalent of the social services is not available, the adoptive or prospective parents(s) should be asked for a statement in writing to cover the same points.
In the case of an adoption by a relative where a social services report may not be available, the adoptive parent(s) should be asked for a statement in writing covering the same points.
Where the child has been abandoned, a certificate of abandonment from the authorities previously responsible for the child’s care.
The adoption order, although there may not be a local adoption order.
Written permission from the authorities responsible for the child’s care in its country of origin for the child to come to the UK for adoption. Where a local adoption order exists, it can be taken as meeting this requirement.
An additional information form and undertaking completed by the sponsors (see appendix 5 and appendix 6 of the Home Office leaflet: Inter-country Adoption and the Immigration Rules, which is available on this guidance page.
A British Agencies for Adoption and Fostering Intercountry Adoption medical form for the child.
The written consent of the child’s natural parent(s), or those with legal responsibility for the child, to the adoption and confirmation that the meaning of an adoption order granted in the UK (that is, that it is irrevocable and severs all ties with the birth family) is understood. This permission must be given when the child is at least six weeks old and be notarised in the child’s own country. The ECO should also be satisfied that consent t has been given freely, that is, that the natural parent(s) have not been in any way pressurised, including by the offer of cash incentives, into giving the child up for adoption.

In addition, sponsors should have lodged the following with their appropriate territorial health department:

medical forms for the sponsor(s)
a Certificate of Eligibility issued by the DCSF or relevant Devolved Authority
an up-to-date home study written by the sponsors’ local social services or social work department, or an approved adoption agency.

21.4 SET7.22.4 Criteria

The prospective parent (s) of a child seeking admission to the UK for the purpose of being adopted there must, on the same occasion that the child is seeking admission, meet one of the following criteria:

both prospective parents are present and settled in the UK or being admitted for settlement;
one prospective parent is present and settled and the other is being admitted for settlement or given limited leave to enter or remain with a view to settlement;
one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement;
one prospective parent is present and settled or is being admitted for settlement and has sole responsibility for the child’s upbringing;
one prospective parent is present and settled or being admitted for settlement and there are serious and compelling family or other considerations which would make the child’s exclusion undesirable, and suitable arrangements have been made for the child’s care.

The requirements to be met by the child are that he / she:

is under 18;
is unmarried / is not in a civil partnership, is not leading an independent life and has not formed an independent family unit;
can and will be maintained and accommodated adequately without recourse to public funds in accommodation owned or occupied exclusively by the prospective parents;
will have the same rights and obligations as any child of the marriage; (see Maintenance and accommodation)
is being adopted due to the inability of the original parents or current carers to care for the child and there has been a genuine transfer of parental responsibility to the prospective parents;
has either lost or broken ties with the family of origin or intends to do so;
will be adopted in the UK by the prospective parents and that the adoption is not one of convenience to facilitate entry to the UK.

21.5 SET 7.22.5 Deferral requirements for children coming for adoption

The ECO should defer the application with full details to the appropriate Department responsible for adoption in the UK - see SET7.18.1 for contact details.Most of the information is likely to be covered by the documents provided. Any points which are not should be covered by the interviews.

21.6 SET7.22.6 Interviews

Where the natural parents are known the ECO must interview them. If the case involves an illegitimate child, the mother should be interviewed.

If the child is old enough to be interviewed alone, the ECO should take the opportunity to explain to him / her what adoption means and to discover the child’s wishes and feelings in the matter.

The ECO does not need to interview the adoptive parents unless the documents provided fail to satisfy him / her that the requirements are met. Further guidance on interviewing is available from the Entry Clearance Toolkit.

The ECO should state in the deferral whether the child has been interviewed without the parents or guardians being present. The deferral should cover as much of the information set out in the Entry Clearance Toolkit on interviewing for adoption. Many points are likely to be covered by the documents submitted, but any points which are not should be covered by interviews.

If the child is in the care of an agency, the ECO should be satisfied as to the bona fides of the agency and the legal rights of the agency to offer the child for adoption.

If the parents cannot be traced or are dead the ECO should say so in the deferral. The ECO should expect to see evidence to confirm this is so, and, if necessary, check the authenticity of any certificates.

Where possible, the ECO should confirm that the relevant authorities in the child’s country of residence do not object to the proposed adoption.

The ECO should give his / her assessment of the genuineness of the application at the end of the deferral.

Applications should be deferred with:

a covering letter giving full names and addresses of the prospective adoptees and child
number of sheets being sent (pages must be clearly numbered).
Post should ensure that any relevant documents are scanned and linked to the application record.

Copies of all paperwork should be retained at Post for 3 years.

The Lead Department will reply direct to the ECO within 10 working days of receiving the correct documentation.

If the Lead Department confirm that the necessary enquiries in the UK have been completed satisfactorily and raise no objections, the ECO may issue the entry clearance.

SET7.22.7 What is the endorsement?

See ECB13 Endorsements

Posts should manually change Proviso to ensure the correct LTE is given.The ECO should inform the Department for Education or the relevant Devolved Authority of the date of issue, and send the original file to the relevant department (see addresses in section SET7.18.1)

Question 22

22. SET7.23 Consideration of de facto adoption

Accepted Answer

22.1 SET7.23.1 What is a ‘de facto’ adoption?

A de facto adoption is one that has already occurred through a natural process not necessarily recognised in any law. Applications involving de facto adoptions should be considered under the specific provision for ‘de Facto’ children in Paragraph 309-316 of the Rules.

Note: the recognition of a de facto adoption for immigration purposes does not confer any legal status upon the relationship.

Where the child is related to the adoptive parent(s), consideration should first be given as to whether the child qualifies under Paragraph 297 of the Rules.

Unlike either types of adoption which are considered primarily on the basis of documentation, de facto adoptions are likely to have to be assessed from an overall picture of the present circumstances surrounding the “adoption”, often with little or no documentary evidence. De facto adoptions most frequently arise where British Citizens, or those settled in the UK, are living abroad and a child comes into their care, perhaps through being orphaned or abandoned.

22.2 SET7.23.2 Circumstances in which a de facto adoption may arise

There may be occasions where a person or a couple, living abroad for a substantial period of time, take charge of a child whom they later wish to bring here to live. This would not normally pose any problem if they have formally adopted the child in a ‘designated’ country:

The Designated Countries List(The list is currently being reviewed by the Department for Education, under the provisions of the Adoptions and Children Act 2002. Further information on the progress of the review will appear on the Department for Education website.)

However, the situation may arise where:

the country in which they have adopted the child is one whose adoption orders the UK does not recognise as valid, (a non-Hague, ‘non-designated’ country); or,
they are caring for a child in a country which does not recognise adoption, such as a Muslim country. (Under Islamic law there is no legally recognisable adoption process but a child may, nevertheless, have been raised as part of a family and been treated as a natural child of that family); or,
despite the country in which they are living and working being a ‘Hague Convention’ or ‘designated’ country, they are unable to adopt there, because, for example, they are not able to satisfy that country’s particular requirements, for example, to be a national of that country.In considering cases, it is important to distinguish between:
those where the adoptive parent(s) are living and / or working abroad for a substantial period of time; and,
those where they have perhaps only been abroad for a limited period, for example, for an extended holiday.

In instances where the adoptive parent(s) are only abroad for a short time and therefore will only have been caring for the child for a limited period before seeking to bring him or her to the UK, the application for entry clearance should be considered under the “for adoption” procedure (Paragraph 316 of the Rules and SET7.22 refer).

22.3 SET7.23.3 How is the existence of a de facto adoption established?

A de-facto adoption should only be considered as having taken place where at the time immediately preceding the making of the application for entry clearance the adoptive parent(s):

have been living abroad (in applications involving two parents both must have lived abroad together) for at least 18 months and,
have lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
have assumed the role of the child’s parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.

Note: The requirement for the adoptive parents to have lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living with the child should be interpreted flexibly where one of the parents has had to be away from the family home for some of the 12 months immediately prior to the application. So long as during the 18 month period he / she has spent an aggregate period of 12 months living together as a family with the child, the essential requirement, that is, that both parents have bonded with the child, will have been met.

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

22.4 SET7.23.4 Requirements for EITHER limited leave to enter with a view to settlement OR indefinite leave to enter where a de-facto adoption has taken place

Once it has been established that a de-facto adoption exists, the following requirements have to be satisfied by a child seeking either limited leave to enter with a view to settlement or indefinite leave to enter in this category. They are that he / she:

is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances:
both parents are present and settled in the UK; or
both parents are being admitted on the same occasion for settlement; or
one parent is present and settled in the UK and the other is being admitted on the same occasion for settlement; or
one parent is present and settled in the UK or being admitted on the same occasion for settlement and the other parent is dead; or
one parent is present and settled and has had sole responsibility for the child’s upbringing; or
one parent is present and settled in the UK or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; or
in the case of a de-facto adoption one parent has a right of abode in the UK or indefinite leave to enter or remain in the UK and is seeking admission to the UK on the same occasion for the purposes of settlement;

and that the child is:

under the age of 18; and
not leading an independent life, is unmarried, and has not formed an independent family unit; and
can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; (see Maintenance and Accommodation section); and
is the subject of a de-facto adoption; and
was adopted at a time when both adoptive parents were resident together abroad;

or

If entry clearance is being granted to a child on the basis of a de facto adoption, the adoptive parent(s) should be advised that recognition of the relationship is for immigration purposes. It does not confer any legal status on the relationship, and they should notify their local social services of the child’s presence here and their circumstances. Furthermore, they may wish to consider adopting the child through the courts here in order to clarify the child’s status under UK law. They should be advised that, in this respect, further advice can be obtained from their local services and the Department for Education or relevant Devolved Authority.

22.5 SET7.23.5 Refusal

If it is decided that it would not be appropriate to grant the child entry clearance because:

a de-facto adoption has not taken place; or
one does exist but the immigration requirements have not in some way been satisfied; and
he / she does not qualify under a provision of the Rules; and
it is decided there are no grounds for treating the case exceptionally the application should be refused.

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This guidance was withdrawn on 14 June 2017