Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00352 (IAC)

Fecha: 29-Jul-2025

The Legal Framework

The Legal Framework

The Immigration Rules

19.

Before we address the grounds of appeal in detail it may be helpful for us to refer to paragraph 310 of the Immigration Rules in force as at the date of the decision of the Judge which governed the requirements for indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom:

“310.
The requirements to be met in the case of a child seeking indefinite leave to enter the United Kingdom as the adopted child of a parent or parents present and settled or being admitted for settlement in the United Kingdom are that he:
(i)
is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances;
(a)
both parents are present and settled in the United Kingdom; or
(b)
both parents are being admitted on the same occasion for settlement; or
(c)
one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d)
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
(e)
one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
(f)
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
(g)
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

(ii)

is under the age of 18; and

(iii)

is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)

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; and

(v)

DELETED

(vi)

(a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of origin or the country in which he is resident, being a country whose adoption orders are recognised by the United Kingdom; or

(b)

is the subject of a de facto adoption; and

(vii)

was adopted at a time when:

(a)

both adoptive parents were resident together abroad; or

(b)

either or both adoptive parents were settled in the United Kingdom; and

(viii)

has the same rights and obligations as any other child of the adoptive parent’s or parents’ family; and

(ix)

was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and

(x)

has lost or broken his ties with his family of origin; and

(xi)

was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and

(xii)

holds a valid United Kingdom entry clearance for entry in this capacity; and

(xiii)

does not fall for refusal under the general grounds for refusal.”

20.

Paragraph 316A of the Immigration Rules set out the requirements to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted. Although the Appellant is not seeking permission to enter the UK for the purposes of being adopted, the requirements were addressed in the decision of the Judge.

21.

The Judge found that the requirements of para. 316 were not met in three material respects. (1) she was not being adopted due to the inability of her birth parents to care for her; para 316A(vi); (2) she had not lost or broken or did not intend to lose or break her ties with her family of origin; para. 316A(vii); (3) she would not be adopted in the United Kingdom by her prospective parents in accordance with the law relating to adoption in the United Kingdom because the ‘adopter’s habitual residence’ was not in England and Wales and the required letter from the Department for Education has not been provided (see paras. 316A(viii) and 309B of the Immigration Rules).

22.

‘Appendix Adoption’ was introduced into the Immigration Rules by the Statement of Changes (HC590) and took effect on 6 June 2024. Nevertheless, where an application for entry clearance, permission to enter or permission to stay, has been made before 6 June 2024, such applications will be decided in accordance with the Immigration Rules in force on 5 June 2024. It is to be noted that Appendix Adoption provides for entry under the ‘Recognised Overseas Adoption Route’ with a requirement that the overseas adoption must have been in accordance with a decision taken by the competent Central Authority as set out in AD16.4 or a court in the child’s country of origin or the country in which they are resident. If that requirement is not met, the rules now require that the adoption must have been recognised by order of the High Court in the UK (see Appendix Adoption AD 16.5).