The Home Office has just published its internal guidance to caseworkers on visa applications for children who are adopted or to be adopted in the UK. Noticeably, the guidance has provided much needed clarification on the eligibility of de facto adoptive children coming to the UK and joining the family they have been integrated into, which we see as a major positive move from the government.
What is a de facto adoption?
A de facto adoption is where a child who has been fully integrated into a family but the relationship between the child and the family is not recognised legally due to the fact that the child, or the family, or both, comes from a country where such a legal procedure does not exist or such legalisation is practically not possible.
It essentially ignores the formality, and focuses on the human rights aspect instead.
A de facto adoption may arise where:
- adoption orders in the country where the child was adopted are not recognised as valid in the UK
- the parents are caring for a child in a country which does not recognise adoption.
- despite the country in which they are living being a Hague Convention or designated country, the parents are unable to adopt there because, for example, they are not able to satisfy that country’s particular requirements.
How can a child be allowed into the UK under these circumstances?
The de facto adoption will be regarded as having taken place where the adoptive parent(s) can show they have:
- lived abroad for a period of at least 18 months (for applications involving two parents both must have lived abroad together)
- lived with and cared for the child for at least the period of 12 months immediately before the application for entry clearance; and
- assumed the role of the child’s parent for the full 18-month period mentioned above, and there has been a genuine transfer of parental responsibility.
The guidance provides that the most common use of this provision is likely to involve British citizens working abroad for a period of time in a country whose adoption laws are not recognised by the UK and who have adopted a child from that country during that period, but it may occasionally apply in other circumstances.
The application process
Applications should be made on the online settlement visa application for indefinite leave to enter or limited leave to enter with a view to settlement.
The child can apply for (with the assistance of adults if required):
- indefinite leave to enter the UK as the adopted child of a parent or parents present and settled in the UK.
- limited leave to enter the UK with a view to settlement as the adopted child of a parent or parents given limited leave to enter or remain in the UK with a view to settlement.
Thoughts
We are pleased that some more attention is being given to the de facto adoption route, as these types of adoptions are more common than one may think. Of course, there are checks that the Home Office will make, such as the financial stability of the family adopting the child, and there will be investigations into the child’s nature, or whether there is any risk associated to the child, but these are all fairly exceptional circumstances. On the whole, this is a very positive and pleasing expansion to the rules.
Moreover, the new rules mean that it would be more important for the parent(s) to prove that they have been looking after the child in a parental way, taking an active role in the child’s upbringing and they plan to continue to do so in the future. The Home Office will look at the evidence of whether the parents are actually exercising their parental responsibilities, rather than what the legal documents states.
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