Overseas adoption and British citizenship
The entitlement of adopted children to British citizenship is not a straightforward matter. In some circumstances, adopted children are British citizens automatically from the date of their adoption. In others, the Secretary of State for the Home Department may exercise discretion to register them as British citizens following an application. Finally, adopted children who are not British automatically and who cannot be registered as British on the basis of their adoption have to apply for leave to enter and remain in the UK.
British citizenship by automatic acquisition under s.1(5) of the 1981 Act
Sections 1(5) and 1(5A) of the British Nationality Act 1981 state, as follows:
- any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen; or
- a minor who is not a British citizen is adopted under a Convention adoption,
that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be effected under the law of a country or territory outside the United Kingdom.
(5A)Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—
- the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and
- in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom or in a designated territory.
S.1(5)(a) refers to domestic adoptions authorised by a UK (or a British Overseas Territory) court order.
S.1(5)(b) refers to overseas “Convention adoptions”. Section 50 of the 1981 Act provides the following definition: “Convention adoption” means an adoption effected under the law of a country or territory in which the Convention is in force, and certified in pursuance of Article 23(1) of the Convention. References to the Convention are references to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
In view of this, whether an overseas adoption is a Convention adoption would depend on whether:
- It was effected in a country or territory where the Convention is in force;
- The Convention was in force in that country or territory at the time the adoption was effected;
- The adoption was effected under the law of that country or territory; and
- The adoption was certified under Article 23(1) of the Convention.
Article 23(1) provides that an adoption certified by the competent authority of the State of adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. Therefore, if an Article 23 Hague Convention Adoption Certificate has been properly obtained in relation to a child adopted overseas, then that is determinative of the adoption being a Convention adoption.
Requirements of s.1(5A) of the 1981 Act
However, additional requirements need also be met for a non-British child adopted overseas under a Convention adoption to be British automatically, namely that, on the date of the adoption:
- At least one of the adoptive parents (if more than one) was a British citizen; and
- Both of the adoptive parents (if a joint adoption) were habitually resident in the United Kingdom (or a British Overseas Territory).
If all the above requirements are satisfied, a British passport application for the adopted child should be made, accompanied by the child’s Article 23 Hague Convention Adoption Certificate (and the adoption order by the overseas court), as well as evidence of the adoptive parents’ British citizenship and habitual residence in the UK.
British citizenship by registration under s.3(1) of the 1981 Act
If the overseas adoption is not a Convention adoption, then a potential route for the adopted child to become a British citizen would be registration under s.3(1) of the 1981 Act.
Section 3(1) of the 1981 Act states as follows: If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.
As a result, an application for registration would have to be made whilst the child is still a minor. This registration is “by discretion”, rather than by entitlement, because it is at the discretion of the Secretary of State. However, the Secretary of State has published policy in respect of how his discretion should be exercised, which should normally be followed unless there are good reasons to depart from it.
Home Office policy
The current version (4.0) of the Secretary of State’s relevant policy guidance titled “Registration as British citizen: children”, published on 12 November 2018, states as follows (on pages 19 and 20):
Where section 1(5) does not apply you must normally only register children adopted overseas by a British citizen in countries or territories whose adoption procedures are recognised by the UK, and subject to the additional criteria below. Countries and territories whose adoption procedures are recognised by the UK include those listed in:
- The Adoption (Recognition of Overseas Adoptions) Order 2013
- The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013
- The Hague Convention on inter country adoption
The additional criteria are that:
- the adoption is not informal or temporary
- under the law of the country where the adoption took place the child is the child of the adoptive parents alone and the legal relationship with the birth family has been completely terminated
- at least one of the adoptive parents is a British citizen otherwise than by descent
- the current parent(s) have consented
- there is no reason to refuse on character grounds
- you are satisfied that all relevant adoption laws have been adhered to, this includes the laws of the country in which the adoption has taken place, the country of origin of the child and the country in which the adoptive parents are habitually resident
- you are satisfied the adoption is not one of convenience arranged to facilitate the child’s admission to the UK
Countries whose adoption procedures are recognised by the UK
The first thing to consider is whether the country where the child was adopted was, at the time of the adoption, a party to the Hague Convention (regardless of whether it was a Convention adoption). Alternatively, if the adoption took place after 3 January 2014, the country of adoption must be listed in the 2013 Order or the 2013 (Scotland) Regulations. For adoptions that were effected before 3 January 2014, the requirement is that the country where the child was adopted was included on the “designated list” of the Adoption (Designation of Overseas Adoptions) Order 1973.
If the country of adoption is not listed in the above statutory instruments or was not a party to the Hague Convention, the Secretary of State will normally not register a child adopted overseas by a British citizen.
Additional criteria ought to be satisfied
Even if the country of adoption is listed therein, the additional criteria set out in the policy cited above should also be met for an adopted child to be registered as British. The good character requirement only applies to children that are aged 10 or over at the date of application.
However, all applications must be considered on their merits and a child may be registered if there are exceptional, compelling, or compassionate circumstances justifying a grant of British citizenship, even when the above requirements are not satisfied and the intention is to remain outside the UK.
An application can be made using form MN1. This can be made online (although there is no prescribed process or form in citizenship applications) and a guide to completing the application form is included in the webpage linked above. The application fee is £1,012. Children do not need to attend a citizenship ceremony prior to their being registered as British citizens, but if an applicant turns 18 whilst their application is processed, they will be required to attend such a ceremony and an extra fee of £80 will be payable.
The Immigration Rules
For adopted children who are not British automatically or have not been registered as British and, therefore, require leave to enter and remain in the UK, an application can be made under part 8 of the Immigration Rules. The relevant paragraphs for adopted children are paragraphs 309A to 316F. The requirements of those will be covered in a future post.
Contact our Immigration Barristers & Lawyers
For expert advice and representation in relation to British citizenship applications, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.