SET07 - Children

This is internal guidance for use by entry clearance staff on the handling of settlement in the United Kingdom (UK) visa applications made outside the UK. It is a live document under constant review and is for information only.

For guidance on applications made on or after 9 July 2012 please refer to Appendix FM which can be found at page 19 of the Statement of Changes in Immigration Rules.

All applications submitted before 9 July 2012 should be considered under the old Rules.

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

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 United Kingdom 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) 

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

Definition of a parent as defined under the Rules

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

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 United Kingdom 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.

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 ECCCAT.

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SET7.4 Assessment of a child's age

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. 

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SET7.5 The Children under 12 concession

This was withdrawn on 29 March 2003.

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

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.

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SET7.7 Can children over 18 qualify?

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).

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SET7.8 What is sole responsibility?

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 can be downloaded under 'Related documents' on the right side of this 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?

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

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.

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SET7.10 What are the maintenance and accommodation requirements?

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

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SET7.11 DNA testing

SET7.11.1 Is there a charge?

DNA tests, arranged through the Government DNA Scheme, are provided free of charge.

SET7.11.2 When to test?

  • Only for first time Settlement or Family Reunion applications as a last resort when every other means of verifying the relationship has been exhausted; and
  • Where "related as claimed"  would be the sole reason for refusal.

SET7.11.3 Is the DNA test compulsory? 

DNA tests are:

  • not compulsory; and,
  • are only undertaken with the agreement of the applicant(s) (and sponsor);
  • can only be offered with the prior authority of an Entry Clearance Manager; and,
  • are only undertaken by the company contracted by UKBAIG to do these tests (currently Cellmark).

For full guidance on the process to follow when a DNA test is required look at  the DNA information contained in the 'Running a Visa Section' on the Entry Clearance Toolkit on FCO Net.

SET7.11.4 What to say to the applicant

  • there is no obligation to take part in a DNA test;
  • the test is a very accurate way of establishing close genetic relationships;
  • the report of a DNA test is the property of HMG (except in the case of private tests (see SET7.11.10 below) and will be sent directly to the ECO.

SET7.11.5 What if the applicant declines a DNA test?

That alone will not be grounds for refusing the application. However, the ECO should record the fact together with the reason given (if any) by the applicant for declining the offer of a DNA test.

SET7.11.6 How long does a DNA test report take?

DNA test reports should be received by Posts within 35 days of the receipt of all the samples (including the UK sponsor's) by the testing company.

Posts should inform the DNA Administrator in ECCCAT of all cases where reports were received outside the 35 day period.

SET7.11.7 Assessing the DNA report

The reports will state the mathematical likelihood that the applicant(s) and sponsor are related as claimed as opposed to being unrelated, or related as the next closest family member. If the parties are not related as claimed, the report will indicate wherever possible the likely nature of the relationship.

The ECO must assess the relationship(s) on the balance of probabilities from all the available evidence.

If the ECO requires clarification of the DNA test result they should contact the DNA testing company directly.

Where DNA evidence is the only evidence available to the ECO, a report that suggests the applicants are related as claimed should be considered sufficient for decision making purposes.

Where other evidence is available to the ECO, the strength of the DNA results must be considered in conjunction with this.

SET7.11.8 What action to take on the results

Unrelated to both parents

If a child is unrelated to the claimed parents, the application should normally be refused.

One or other of the 'parents' is a relative

If one of the alleged parents is found to be:

  • a second degree relative such as an aunt or uncle; and,
  • the child has been brought up as a member of the family unit

the ECO should review whether there are serious and compelling family or other reasons (see SET7.9) for considering the child's application under paragraph 297(i)(f) of the Rules.

Child not related to the claimed mother

The ECO will need to establish:

  • whether the child was born to another wife (particularly if the child is claiming citizenship by descent) and if so,
  • whether the child lives with the natural mother or the claimed mother.

Depending on circumstances, the provisions of one of the sub paragraphs of Rules paragraph 297(i) may be appropriate.

In a case where the DNA report shows that the child may have been born out of a previously undisclosed earlier marriage, it may be necessary to investigate questions of polygamy and legitimacy (see below).

Where the child's natural mother is not seeking entry or does not qualify for admission, the sponsor would normally have to demonstrate that he/she has exercised sole responsibility (see SET7.8) for the child's upbringing (Rules paragraph 297(i)(e)).

Child not related to claimed father

The ECO must handle such cases with sensitivity as it may not be obvious whether the husband or other family members know of the true relationship and there may be serious repercussions for the wife and child if the information is disclosed (see illegitimacy below).

There may be any number of reasons why a claimed father may not be a child's natural father including the death of the first husband, rape or adultery.

Illegitimacy

Where DNA evidence indicates that a child may be illegitimate, the ECO should:

  • try to establish the truth of the family circumstances by interviewing the child's mother as discreetly and sensitively as possible. Referring the case to the UK Border Agency to interview the sponsor should be avoided.

If no information can be elicited from the mother, the best way forward may be to seek information from the sponsor's representatives (depending on whether they are known to the ECO to be willing to respect the confidence of all parties).

If it appears that an illegitimate child has been brought up as a child of the family, it will normally be appropriate to admit the child under paragraph 297(i)(f). The fact that the sponsor may not be aware that the child is not his natural child should not preclude entry clearance.

The ECO should not routinely disclose information about the DNA report to the sponsor or other family members in cases involving the illegitimate children. However, under the Data Protection Act applicants and sponsors have a right to see personal information about themselves, which we may hold.

SET7.11.9 What to do if DNA report information is requested

You should consult the guidance on FCONet, your OGLO, and the UK Border Agency if necessary. The UK Border Agency will consult as appropriate.

SET7.11.10 Private DNA Tests

Applicants may commission privately funded DNA tests if they wish to do so. Post involvement should be minimal in private DNA testing cases. Post should send the applicant / testing body their list of the approved medical practitioners for this procedure in their region.

If it is a private DNA test, for example, for appeal purposes, and not under the Government Scheme, the applicant is liable for all costs and should be advised accordingly. The collection and transportation of samples from the medical practitioner to the testing body and associated costs is also the applicant's responsibility.

The ECO should check if the testing body is Ministry of Justice (MOJ)-accredited by using the Ministry of Justice website:

If not and post has doubts about the legitimacy of the testing body then they should contact ECCCAT with details of their concerns.

The DNA test results can be submitted with an application, or, after a refusal decision has been made, enclosed with the grounds of appeal. Evidence from private DNA tests may be considered by the ECO.

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

Immigration Rules Paragraph 297

See also ECB13 Endorsements

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SET7.13 How do Children of parents(s) being admitted with a view to settlement in the United Kingdom qualify?

Immigration Rules paragraph 301

A child may qualify for leave to enter with a view to settlement through qualifying to accompany or join a parent or parents (but not a relative) who has / have been granted limited leave to enter or remain with a view to settlement.

Children of refugee parents with exceptional leave to remain in the UK (ELTR), or children with parents recognised as refugees and those with Humanitarian Protection and Discretionary Leave are dealt with in the section on Family Reunion (SET10 Family Reunion is currently under review).

See ECB13 Endorsements

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SET7.14 What is the position of Children born in the UK on or after 1 January 1983 but who are not British Citizens?

Immigration Rules paragraphs 304 and 305

ECOs will rarely deal with this category.

Before 1 January 1983, every person born in the United Kingdom was automatically British. The British Nationality Act 1981, which came into effect on 1 January 1983, stated that a person born in the United Kingdom after that date would only be a British Citizen if either of the parents was a British Citizen or was settled in the UK.

A child born in the United Kingdom who is not a British Citizen is subject to immigration control. The parents of such a child will normally regularise the child's immigration status, for example, by applying to the Home Office to have the child given the same leave to remain as themselves. This means that if the child leaves the United Kingdom with its parents, for example, for a holiday, re-entry will be allowed within the child's existing leave to remain.

However, there will be instances when a child leaves the United Kingdom without leave to remain having been authorised and therefore requires an entry clearance to return. In these circumstances, the ECO should be satisfied that the applicant meets the conditions set out in paragraph 305.

Immigration Rules paragraphs 304 & 305

Maintenance and accommodation requirements do not apply to a person who qualifies under these provisions.

The visa endorsement must be in line with that of the parent(s) in the UK so the ECO will need to see evidence of this. If the parents have different leave durations, it will be for the longer period.

See ECB13 Endorsements

If the parent is a British Citizen (for example, having settled and subsequently registered), the ECO should consider whether the issue of a Certificate of Entitlement or British Passport might be appropriate.

A child to whom this section of the Rules applies may also seek entry under another part of the Rules (for example, as a visitor or student).

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SET7.15 Residence (formerly custodianship) orders

Any application to come to the UK on the basis of applying for a residence order to join an unrelated adult:

  • refer to the UK Border Agency.

Any application to come to the UK on the basis of applying for a residence order to join a relative:

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SET7.16 Is there provision for children of fiance(e)s / proposed civil partners?

Entry clearance with a view to settlement may be granted to a minor dependent child of a parent who has been admitted, or is seeking admission, as a fiancé(e) under paragraphs 290 to 295 of the Rules provided the following additional requirements are met:

  • the child is under the age of 18, is unmarried and is not leading an independent life nor formed an independent family unit;
  • the child can and will be maintained and accommodated adequately without recourse to public funds with the parent admitted or being admitted as a fiancé(e) or proposed civil partner;
  • there are serious and compelling family or other considerations which make the child's exclusion undesirable;
  • that suitable arrangements for the child's care have been made;
  • there is no other person outside the UK who could be reasonably expected to care for the child;
  • the terms of any custody order relating to the child do not prevent the child being taken to another country with a view to settlement there.

In assessing whether there are serious and compelling considerations (see SET7.9) it would normally be undesirable to exclude a child who had largely been cared for by the 'fiancé(e) / proposed civil partner parent'. With regard to another person being able to look after the child, this would include a close family member if there had been a genuine transfer of responsibility prior to the application. The age and health of the present carer will need to be taken into account in determining whether that person could be reasonably expected to continue caring for the child.

Endorsement: See ECB13 Endorsements

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SET7.17 What is the position for children of polygamous marriages?

A polygamous marriage is one where a partner, nearly always the husband, is married to more than one woman at the same time and, therefore, has more than one wife.

Guidance on the status of partners in a polygamous marriage is given in the section on polygamous / potentially polygamous marriages (SET14).

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 United Kingdom; 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].

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 United Kingdom would still need to be shown.

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 United Kingdom, 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 United Kingdom.

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 United Kingdom.

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 United Kingdom 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 United Kingdom and Colonies),

the child will have a claim to British citizenship by descent and will automatically have the right of abode in the United Kingdom. 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 United Kingdom 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).

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SET7.18 How do adopted children qualify for settlement?

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.uk
Website: www.education.gov.uk

Scotland:
Scottish Executive - Intercountry 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 3NQ
Telephone: (+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 2942
Fax: (+44) (0)28 9052 2500
Website: 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
Guernsey
GY1 1FB

Jersey:
States of Jersey Health and Social Services
Children's Services
Maison Le Pape
The Parade
St. Helier
Jersey
JE2 3PU
Tel: 01534 623 500
Fax: 01534 623 598

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 can be downloaded under 'Related documents' on the right side of this page.

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:

  1. Children adopted in the United Kingdom 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

  2. 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 ,ade 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

  3. 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).

  4. 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.

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 United Kingdom.
  • 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. 

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SET7.19 Entrustment orders

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,
  • the UK Border Agency  confirms the Article 17(c) agreement by due notification with the Department for Education or relevant Devolved Authority.

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.

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

Paragraph 316D

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 United Kingdom, 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 the UK Border Agency  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 the UK Border Agency 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,

the UK Border Agency 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.

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SET7.20 Interim adoption orders

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 United Kingdom 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 United Kingdom, the case should be considered under paragraphs 316A-CofHC395 relating to 'for adoption'.

In these cases, the ECO should email the UK Border Agency 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.

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SET7.21 How children adopted in designated countries qualify

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

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SET7.22 What happens for children coming for adoption?

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).

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 United Kingdom.

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 the UK Border Agency for a decision.

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 (can be downloaded under 'Related documents' on the right side of this 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.

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.

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.

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)

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SET7.23 Consideration of de facto adoption

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.

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 United Kingdom 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 United Kingdom, the application for entry clearance should be considered under the "for adoption" procedure (Paragraph 316 of the Rules and SET7.22 refer).

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.

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 United Kingdom; or
  • both parents are being admitted on the same occasion for settlement; or
  • one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
  • one parent is present and settled in the United Kingdom 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 United Kingdom 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 United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom 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

  • either or both adoptive parents were settled in the United Kingdom; and
  • has the same rights and obligations as any other child of the adoptive parents or parents' family; and
  • was adopted due to the inability of the original parent(s) or current carer(s) to care for him / her and there has been a genuine transfer of parental responsibility to the adoptive parents; and
  • has lost or broken his / her ties with his family of origin; and
  • was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and
  • holds a valid United Kingdom entry clearance for entry in this capacity. See ECB 13 Endorsements.

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 United Kingdom 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.

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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