When is an overseas adoption recognised for UK immigration purposes?

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The Upper Tribunal has handed down a significant decision on overseas adoptions and their interplay with immigration rules in the case of ST (Adoptions: ‘overseas’ adoptions: para 310) India [2025] UKUT 352 (IAC). The case is a reminder that even where an adoption is recognised as an “overseas adoption” under UK law, that is not the end of the matter, and there are other requirements to be met to be granted leave under the immigration rules. However, the fact that an adoption is recognised under UK law is an important and relevant consideration in an Article 8 assessment.

Relevant background

The appellant, ST, was a child born in India in 2014. Her birth parents were not working, and her birth father was struggling with addiction issues. Her paternal aunt and uncle, both British citizens of Indian origin, had been unable to conceive themselves. With the agreement of ST’s birth parents, the aunt and uncle decided, prior to her birth, that they would adopt her.

ST was then adopted by her paternal aunt and uncle, through a Deed of Adoption, in March 2015. The Deed of Adoption also recorded that earlier that month, the physical act of giving and taking the child in adoption and other customary rites and ceremonies were performed in the form of a “swasti pujah” in the presence of elders, locals, and friends as necessary.

In September 2015, ST started living with her adoptive parents and her paternal grandparents. In December 2015, a court in India found that the Deed of Adoption constituted a valid adoption under the Hindu Adoptions & Maintenance Act 1956 (HAMA).

Between November 2019 and January 2024, ST lived with her adoptive parents in New Zealand, before moving to Australia, both times for her adoptive father’s work.

In the meantime, in September 2022, ST’s adoptive father was offered a job in the UK. In November 2022, an application was made on ST’s behalf for indefinite leave to enter as the adopted child of parents being admitted for settlement in the UK, under then paragraph 310 of the immigration rules.

The application was refused by the Home Office in February 2023, and an appeal dismissed by the First-tier Tribunal in March 2024. ST appealed against that decision, and the Upper Tribunal was tasked to decide whether the decision of the First-tier Tribunal contained any material error of law.

The Upper Tribunal’s findings

The central issue before the Upper Tribunal was whether the adoption met the requirements of paragraph 310 of the immigration rules as in force at the date of decision. These are the rules which governed the requirements to be granted indefinite leave to enter to an adopted child of parents settled in the UK or being admitted to settlement.

Paragraph 310 included, as relevant, the requirements that a child:

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 UK; or is subject of a de facto adoption;

With regards to this requirement, it was accepted that the child was subject of a de facto adoption (a concept that only exists in immigration law, and which recognises scenarios where adoptive parents have assumed such role for at least 18 months).

However, the Upper Tribunal still asked itself whether the alternative criteria, of having been adopted in accordance with a decision taken by the competent administrative authority or country in the country of origin, was met. In many cases, the fact that a formal adoption took place in a country whose adoption orders are recognised by the UK will mean that this criteria is met, and indeed the appellant argued that this is how the rules should be interpreted.

The Upper Tribunal found that, although the adoption was indeed recognised by UK law, the adoption which took place in March 2015 was a customary or family adoption, rather than “a decision taken by the competent administrative authority or court”, and therefore this requirement of the rules was not satisfied.

b. 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

Here, the Upper Tribunal, like the First-tier Tribunal, accepted that there had been a genuine transfer of parental responsibility to the adoptive parents. However, they also upheld the findings of the First-tier Tribunal that ST had not been adopted due to the “inability” of her birth parents to care for her.

The evidence suggested a mutual agreement within the family, rather than a situation where the birth parents lacked “the skills, means, or opportunity” to care for the child. This was a case where the birth parents could have, if they chose to, care for the child, but decided not to.

Having found that the immigration rules were not met, the Upper Tribunal went on to look at how the First-tier Tribunal had assessed Article 8, and did find it had erred in its proportionality assessment. While it accepted that the adoption was not sufficient to meet the requirements of the immigration rules, it was still an adoption recognised by UK law. This recognition should have been a relevant factor in the Article 8 assessment, which the First-tier Tribunal did not take into account.

The Upper Tribunal remitted the case for a further hearing to determine whether the refusal of entry clearance was proportionate, having proper regard to the best interests of the child and the family’s circumstances.

Comments

Since ST applied for Entry Clearance in 2022, paragraph 310 of the immigration rules has been deleted, and replaced by Appendix Adoption. However, this case remains relevant because:

for cases where there has been an adoption recognised by the UK, there is still a requirement that the adoption “must have been in accordance with a decision taken by the competent Central Authority, as set out in AD 16.4., or court in the child’s country of origin, or the country in which they are resident” (paragraph AD.16.2).
for cases where there is no recognised or de facto adoption, and the child is coming to be adopted in the UK, there is a requirement to show that they are being adopted due to the “inability of the birth parents” to care for them.

For ST, it remains to be seen what the Upper Tribunal makes of the Article 8 assessment when re-hearing the case. I would think that the appellants would need to show that they intend to move to the UK, and possibly why they cannot continue living in Australia.

If the case is not granted under Article 8, ST’s parents may want to think about:

Submitting a fresh application, under Appendix Adoption, but relying on the fact that this is a de facto adoption (which has been accepted by the Tribunal). The rules for de facto adoption require them to show that the birth parents are now unable to care for ST, but do not look at the circumstances at the time of the adoption. I understand from the Upper Tribunal determination that ST’s birth father has since passed away. It is unclear what the circumstances of ST’s birth mother are.
Applying to register ST as British by discretion, relying on section 3(1) of the British Nationality Act, whereby the Home Office will usually register children adopted overseas in a country whose adoption procedures are recognised by the UK (such as India), where the following requirements are met:
- 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 or parents 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

More information on immigration and nationality options for adopted children can be found in this post.

Full headnote

Here is the full headnote:

Adoption: An adoption of a child which takes place outside the United Kingdom can arise in the context of a number of different scenarios. However, there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules. The courts or other bodies concerned with the law of adoption perform different functions from that of the Secretary of State.
Although the recognition of an overseas or foreign adoption does not of itself prevent permission to enter or remain being refused, it plainly has implications upon the assessment of an Article 8 claim because of the recognition of the clear and permanent parent and child relationship. The adoption does not bind the Secretary of State in immigration proceedings, but an adoption that is otherwise recognised by the UK is plainly a relevant consideration in the consideration of an Article 8 claim.
‘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.
Paragraph 310(vi)(a) of the Immigration Rules: The natural meaning of the language used in para. 310(vi)(a) requires that at the point in time at which the adoption takes place, the adoption is to be effected by a decision taken by a competent administrative authority or Court, not merely some process or procedure, albeit lawful, by which the adoption takes place.
Paragraph 310(ix) of the Immigration Rules: The plain language of the Rule requires the appellant to establish that they were adopted due to the inability of their original parents or current carers to care for them. The focus is upon the position as it was at the time of the adoption. The word ‘inability’ used in the rules, adopting the plain ordinary language of the word means ‘not being able to do something’. The natural and ordinary meaning of the word ‘inability’ refers to “lacking skills, means or opportunity”. The rule does not cover a situation in which natural parents are able to care for the child, if they choose to do so, but, as an exercise of choice, do not want to do so.
The Hindu Adoptions and Maintenance Act 1956 (“HAMA”): Evidence of a valid adoption under HAMA will not be sufficient to meet the specific requirement in para. 310(vi)(a) of the Immigration Rules that the applicant was adopted “in accordance with a decision taken by the competent administrative authority or court … being a country whose adoption orders are recognised by the United Kingdom”.
The decision of the Upper Tribunal in SK (“Adoption” not recognised in UK) [2006] UKAIT 68 is not authority for the proposition that an adoption under HAMA amounts to a decision taken by a Court or competent administrative authority.