Case No. UKUT-00197-(IAC)

17. The current version of paragraph 309B – which HC 667 states applies to all applications made on or after 24 November 2016 - is in these terms: 309B. Inter-country adoptions may be subject to section 83 of the Adoption and Children Act 2002 or the equivalent legislation in Scotland or Northern Ireland if the adopter’s habitual residence is there. Where this is the case, a letter obtained from the Department for Education ( England and Wales habitual residents) or the equivalent from the relevant central authority ( Scotland or Northern Ireland habitual residents) confirming the issue of a Certificate of Eligibility must be provided with any entry clearance adoption application under paragraphs 310-316C. 18. The version of 309B applying to paragraphs 310 or 316A entry applications prior to 24 November2016 - and thus to the appellant T Y - is in these terms: 309B. Inter-country adoptions which are not a de facto adoption under paragraph 309A are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. As such all prospective adopters must be assessed as suitable to adopt by a competent authority in the UK, and obtain a Certificate of Eligibility from the Department for Education, before travelling abroad to identify a child for adoption. This Certificate of Eligibility must be provided with all entry clearance adoption applications under paragraphs 310-316F. 19. The exceptions to the prohibition are found in the Immigration Rules which make provision for adopted and adoptive children entering for settlement with their settled parents or entering with temporary leave to await the outcome of an adoption order by a British court or a partner parent’s qualification for settlement. These provisions are found in the Immigration Rules , paras 309A -316F. The Rules make provision for the entry and stay of children adopted via Hague Convention and ‘overseas adoptions’ as well as for those termed ‘ de facto’ adoptions. De facto adoptions take effect for immigration law purposes but are not adoptions under United Kingdom family law and the de facto parents will not have parental responsibility for the children under family law on entry and will need to obtain a family order to have such parental responsibility rights and responsibilities. 20. The Immigration Rules, Part 8, Family Members, contain the Home Office provisions that reflect the statutory framework set out in the Adoption and Children Act. Paragraphs 297 to 316F concern children. 21. The more familiar provisions are found in paragraph 297 which, in general, permit a person settled in the UK to seek entry clearance or leave to remain to their minor, dependent child if both parents are settled or being settled in the United Kingdom or where one parent, settled or being settled, has sole responsibility for the child. The provisions are designed to avoid recourse to public funds in both forms. However, paragraph 297 is not limited to parents and their children but also permits a relative to apply for a child to join them in the UK within the terms of paragraph 297 (i) (f): [ One parent or ] a relative 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 to the child’s care 22. It hardly needs be said that the ‘ serious and compelling family or other considerations’ presents a high threshold for those parents or relatives who seek to meet the requirements of paragraph 297. For our purposes, we are, of course, considering the situation of a relative. The purpose of making reference to paragraph 297 is because it was through the mechanism of this provision that the First-tier Tribunal Judge came to determine the appeal and to dismiss it . 23. In contrast, the provisions relating to adoptions which are not otherwise recognised in the United Kingdom is through the operation of paragraph 316A: