Legal answers in relation to International adoption and UK Immigration Cases
The family law and Immigration law matters in International Adoption cases are probably not the things you think of when you are showing off your new baby to friends and family. But the pleasures of that new arrival are what new parents should be able to experience in the first few weeks of a baby’s arrival.
For Ninah Saleh and her daughter the reality bears no relation to the dream. She has a lovely baby girl, but the pair of them are stuck in in rented accommodation in Pakistan. Ninah Saleh, and her now seven-month-old daughter Sofia, are in a legal limbo whilst they wait for a Home Office official to decide if the baby can enter the UK.
The only thing stopping Ninah Saleh from getting on a plane back to the UK to start her life as a mother is Sofia’s lack of visa. You may think that a delay of four months is a one off, but the best London immigration solicitors say that you would be wrong. Parents who are involved in international adoption or surrogacy regularly have to wait for babies to get a visa, delaying their return to the UK and reunification with friends and family.
You may ask what is there to stop Ninah Saleh returning to the UK. The legal answer is nothing but what new mother would want to leave her child in Pakistan whilst the Home Office sorts out the Immigration paperwork and visa. In the case of Sofia, the Home Office has refused visa requests on three occasions. Ms Saleh faces another anxious wait for the outcome of Sofia’s latest Immigration application.
How can OTS Solicitors help?
OTS Solicitors are Legal 500 recommended Immigration solicitors who feature in the BBC 2 series ‘’ who should get to stay in the UK’’.
Recognising that there is a real need for joined up Immigration law and international family law advice OTS Solicitors provide a package of specialist Immigration and international family law advice on:
• International adoption and surrogacy arrangements;
• International child law, child abduction and taking children abroad after separation or divorce;
• One parent relocating to the UK with their child;
• Financial settlements after an overseas divorce
If you are planning an overseas adoption, an international surrogacy or have a question about how your family will be affected by international family law considerations please call us on 0203 959 9123 to arrange an appointment to speak to our experienced London Immigration and family law solicitors.
The case of Ninah Saleh’s baby
The case of Ninah Saleh and Sofia awaiting a fourth Home Office decision on Sofia’s visa application is enough to make anyone despair of the interplay (or lack of) between international adoption and UK Immigration Rules and nationality law. Even the best London immigration solicitors find the Immigration Rules cumbersome.
Ninah Saleh is , according to reports in The Independent and Guardian newspapers, a Norwegian citizen who has lived in the UK for the last twenty years. She lives in Maida Vale, London and has her own business as although Norway is not a member of the European Union, its citizens are able to live and work across the EU.
As part of the UK adoption process, Ninah Saleh underwent rigorous assessment by social services in the UK prior to approval as a prospective adopter for an overseas child. Ms Saleh then used a private adoption agency to match her to baby Sofia. According to newspaper reports, Ninah Saleh did not take Immigration legal advice before going to Pakistan and the adoption agency apparently did not flag up the need for her to do so.
On arrival in Pakistan, Ms Saleh obtained a guardianship order for Sofia. Some may question why, if Ninah Saleh has obtained a court order in Pakistan, she cannot just bring the baby back to the UK but Immigration and family law is not straightforward and can catch out prospective adopters.
Overseas adoption and British Citizenship
According to the best London immigration solicitors, the Immigration Rules relating to the adoption of children from overseas and nationality are complex. The interplay between UK family, adoption and nationality law and the foreign country’s family law is confusing for most UK adopters to cope with, especially when you add into the mix the bureaucracy of the Home Office.
Some adopted children automatically acquire British Citizenship by virtue of a court order. Sections 1(5) and 1(5A) of the British nationality Act 1981 says if a non-British child is the subject of:
• A UK adoption order; or
• A qualifying territory adoption order; or
• A convention adoption order
Then provided the requirements of the Act are met, the child is a British citizen from the date on which the court order is made.
The requirements of the British nationality Act 1981 are:
• On the date on which the adoption order is made or the convention adoption is effected the adopter (or if a joint adoption, one of the adopters ) is a British citizen; and
• In a convention adoption, the adopter (or if a joint adoption, both of the adopters) is habitually resident in the UK or in a designated territory.
Convention adoption orders
Without specialist legal advice from top UK adoption and Immigration solicitors, most protective adopters have no idea of whether the child that they want to care for can be made the subject of a convention adoption in the relevant overseas country and thus automatically get British Citizenship and be able to secure a British passport.
The definition of a convention adoption orders is contained in Section 50 of the British nationality Act 1981. In essence, a convention adoption means an adoption order effected under the law of a country or territory in which the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) is in force and certified in accordance with Article 23(1) of the Hague Convention.
In a convention adoption case the best London immigration solicitors say that a British passport application for the adopted child should be made to the Home Office accompanied by:
• The child’s Article 23 Hague Convention Adoption Certificate;
• The overseas adoption order;
• Documentary evidence of the adoptive parents’ British Citizenship;
• Documentary evidence of the adoptive parents’ habitual residence in the UK.
The status of Sofia
Back to the case of Ninah Saleh and Sofia. top London immigration solicitors will tell you that the case of Sofia is not straightforward because Ms Saleh cannot get a convention adoption order in Pakistan. Instead, she has obtained a guardianship order with a view to bringing Sofia to the UK where she can be made the subject of a UK adoption order.
As Ninah Saleh cannot adopt Sofia in Pakistan (as the UK would not recognise the adoption order), Sofia has not legally acquired her mother’s nationality and hence needs UK Immigration entry clearance.
Entry clearance for children coming to the UK for adoption
For prospective parents who want to adopt a child from a non-convention country the prospective parents need to apply on behalf of the child for limited leave to enter the UK under the UK Immigration Rules.
If entry clearance is obtained the child should be given leave to remain in the UK for up to two years so that there is plenty of time for the prospective adopters to secure a UK adoption order. Once adopted in the UK, the child should automatically become a British citizen.
If a child does not automatically qualify for British Citizenship as a result of their UK adoption order then the adoptive parents can register the child to become British provided that:
• The application is made while the child is a minor child;
• The Secretary of State thinks it is appropriate to register the child;
• If the child is over 10 years of age there is a good character requirement.
For Ninah Saleh, it is probably incomprehensible that a UK resident, approved by British authorities to adopt a child from overseas and matched to a child by an adoption agency, should then have to languish in a foreign country for months on end whilst she waits for entry clearance for Sofia.
The harsh reality is that the UK does not have a seamless adoption and Immigration service and sadly Sofia is one of many children stuck in a legal limbo whilst there would be parents hope for a brighter future for them in the UK.
Thinking of overseas adoption
Many prospective adoptive parents who want to adopt a baby or young child are drawn to overseas adoption because of the availability of babies in comparison to the UK where children available for adoption are often older, have special needs or are part of a sibling group.
Prospective adoptive parents face a gamble. Wait and hope that the right child becomes available in the UK and is matched to you or go overseas to adopt. Whilst the availability of babies is a plus, the red tape of Immigration Rules and entry clearance can be nothing short of a nightmare for those who do not know what they are letting themselves in for and do not have the support of an expert Immigration and family law solicitor.
How can OTS Solicitors help?
As top London Immigration and children solicitors OTS Solicitors are uniquely placed to guide adoptive parents through complex adoption and Immigration legislation. We provide expert Immigration and family law legal advice combined with practical tips from our extensive experience, all delivered in a sensitive, caring manner.