4. Application for indefinite leave to remain in the UK as the adopted child of a parent or parents present and settled in the UK
Our client, a 16-year-old Chinese national, entered the UK on Tier 4 (Child) Student Visa at the age of 14. He was sponsored by his uncle and aunt to come and live with them in the UK (the uncle being the brother of his biological mother). Briefly, the reason for them sponsoring him was that he was being subjected to emotional and physical abuse by his parents in China due to his very poor educational attainment levels and his UK based uncle and aunt could not bear to stand by and let the abuse continue without intervening. Two years later, the uncle and aunt travelled with our client to China and formally adopted him in accordance with Chinese law. We then submitted an application to the Home Office, before the expiry of our client’s student visa, for him to be granted indefinite leave to remain in the UK as the adopted child of a parent present and settled in the UK pursuant to Paragraph 311 of the Immigration Rules (a SET(F) application).
The Home Office refused the application on the following basis:
The adoptive father did not have indefinite leave to remain in the UK. Therefore, the child did not meet the requirement of Paragraph 311(i)(a) of the Immigration Rules;
The Home Office was not persuaded that the child had been adopted due to the inability of his biological parents to care for him or that there had been a genuine transfer of parental responsibility to the adoptive parents;
The Home Office was not persuaded that the child had lost or broken his ties with his biological parents;
Finally, the Home Office believed that the adoption was one of convenience arranged to facilitate the child being granted indefinite leave to remain in the UK and so he did not satisfy Paragraph 311(xi) of the Immigration Rules.
We appealed against the refusal on the grounds that the child’s parents could not care for him, there had been a genuine transfer of parental responsibility to his uncle and aunt, the child had no contact with his biological parents, the purpose of the adoption was not to facilitate him being granted indefinite leave to remain in the UK but to save him from further abuse, and additionally, that the Home Office decision breached our client’s rights under Article 8 of the European Convention on Human Rights (the right to respect for private and family life).
In preparation for the appeal, we obtained detailed witness statements from the adoptive parents and the child covering all the issues in the case. We also instructed an independent Social Worker with over 30 years’ experience in child care issues to conduct an assessment and prepare a report detailing the extent of our client’s relationship with his adoptive family and the detriment he would suffer if returned to China. Further, through detailed legal research, we were able to establish that The Adoption (Recognition of Overseas Adoptions) Order 2013 lists 87 countries in its Schedule (including the People’s Republic of China). An adoption effected under the law of a country listed in the Schedule to the Order is designated as an ‘overseas adoption’ for the purposes of section 87 of the Adoption and Children Act 2002 and therefore recognised as a legal ‘adoption’ under section 66 of the 2002 Act;
At the appeal hearing the Home Office Presenting Officer conceded the following points:
Pursuant to The Adoption (Recognition of Overseas Adoptions) Order 2013, our client’s adoption in China had to be automatically recognised in the UK. Therefore, the requirement of Paragraph 311(vi)(a) of the Immigration Rules was satisfied.
The child had lost or broken ties with his family of origin so he satisfied paragraph 311(x) of the Immigration Rules;
The adoption was not one of convenience arranged to facilitate the child being granted indefinite leave to remain in the UK and so Paragraph 311(xi) of the Immigration Rules was satisfied;
The child’s adoptive father had been given indefinite leave to remain in the UK following the refusal of the child’s application and before the appeal hearing, and so, the requirement of Paragraph 311(i)(a) of the Immigration Rules was met.
The Home Office accepted that the child had a family life in the UK. The issue was whether any interference with his family life was proportionate.
The only remaining point in issue was whether our client satisfied Paragraph 311(ix) of the Immigration Rules, and whether he was adopted due to the inability of his biological parents to care for him. The Home Office argued that this was not the case because the treatment our client received from his biological parents is the culture of China and its attitude towards the importance of education. However, they were unable to undermine the evidence given by the child and his adoptive parents on this point at the appeal hearing.
On balance, the First-tier Tribunal Judge was persuaded that the child had been subjected to verbal and physical abuse from his biological parents and this meant that they were unable to care for him. He found that the treatment did not amount merely to a Chinese cultural norm as argued by the Home Office. The child’s adoptive parents paid for his school fees and all living expenses. His biological parents made no contribution towards the costs of his upbringing. They played no role in his life and had no form of contact with their son. As such, he found on balance that the child’s biological parents were unable to care for him and that there had been a genuine transfer of parental responsibility to the child’s adoptive parents. The appeal was allowed and our client was granted indefinite leave to remain in the UK as an adopted child.