Right to British Citizenship for adopted child

[krymell57]

Hi,

I was wondering if anyone has come across a similar situation. I went through the process of adopting my stepson who is originally from Russian. My son was 17 at the time and the process took over a year to complete. The application to the Court was made in December 2017 and 3 months latter we received the Adoption Order. Trouble is he had reached his 18th birthday (by 10 days) on the Court date. This is allowed under the Adoption and Children's Act 2002, as of course you cannot legally adopt anyone over 18 year old.

However, when I wrote to the passport office to enquire if my son was eligible for British Passport, they were confused and informed me how was it possible your son was adopted when he was 18? They advised I write to the Home Office which I did. I was then informed that as my son was 18 when the adoption order was made official he did not qualify as a British Citizen.

To me this does not make sense. My son is legally adopted, you can only legally adopt a child, the Adoption Order quite clearly states the order is for the adoption of a child - yet as he was 18 years old when the Court signed the order he does not seem to qualify as an adopted child and must apply for naturalised British Citizenship - which to be honest does not apply to him as he is an adopted child!!!

Has anyone else come across this strange loophole that seems to be in conflict between the Adoption and Children's Act 2002 and Section 5 of the British Nationality Act 1981.

[vinny]

Unfortunately,

9. Section 50(1) of the 1981 Act provides that, unless the context otherwise requires, for the purposes of the 1981 Act "minor" means "a person who has not attained the age of eighteen years." It is not suggested that there is anything in the context to displace this definition. The special definition of "child" set out in section 49(5) of the 2002 Act does not modify the meaning of the different concept, "minor", which is expressly defined in the 1981 Act. This means that for a person to acquire British citizenship by operation of section 1(5) of the 1981 Act, an adoption order must be made by the court while he is a minor, i.e. a person who has not yet attained the age of 18. This is contrary to the assumption made by the judge in this case (at [3]), without the benefit of argument on the point, that if he made an adoption order in relation to MW on the application of FAS the effect of section 1(5) of the 1981 Act would be to confer British citizenship on MW.

....

Conclusion

44. In my judgment this appeal should be dismissed, but for reasons different from those given by the judge. The Secretary of State has failed in her primary submission in relation to the proper interpretation of section 1(2) of the 2002 Act, but succeeds in her alternative submission based on the non-applicability of section 1(5) of the 1981 Act on the particular facts of this case.

[krymell57]

Hi, thanks for that - but what this mean for his current status?

[vinny]

What was his status when he entered the UK?

[krymell57]

child of spouse to British Citizen

[krymell57]

The UK Visa and Immigration wrote to me and suggested this....

If you require confirmation of your son’s status under British nationality law, you may wish to apply to us for a nationality status letter, using Form NS. Advice about the nationality status certificate application process, the fees payable, and relevant form, can be obtained from:

www.gov.uk/government/publications/appl ... us-form-ns.

Please ensure that any documents you provide are original documents as a status letter cannot be considered on copy documents. If original documents are not available please explain why in a covering letter when you send your NS form.

Your son’s claim will then be considered by a caseworker. If you can establish that your son had an automatic claim to British citizenship he will be issued with a Status Letter, which may be accepted by Her Majesty’s Passport Office at their discretion.

Having read the application form I am not sure it really applies. I also contacted the Home Office and was informed that I should look for an Immigration Lawyer.....

[krymell57]

Thank you for the reference to this case but it is not really relevant I believe. Here the case was about how the adoption process was being used to circumvent the immigration process. In my case we started with plenty of time for the adoption to take place it was the fault of the local Children's Service (which they have acknowledged) as to why there was a delay in the start of the court process and why the adoption hearing took place 10 days after my son's birthday.

Had there been no delay the hearing would have taken place before his 18th birthday, and therefore he would have automatically been granted British citizenship.

[vinny]

I think the case is relevant because of its interpretation of the various applicable legislations. Unless it’s overturned, I think that its interpretation will apply.

If he has limited leave, then I think he should apply for extensions or ILR when eligible.

[vinny]

The UK Visa and Immigration wrote to me and suggested this....

If you require confirmation of your son’s status under British nationality law, you may wish to apply to us for a nationality status letter, using Form NS. Advice about the nationality status certificate application process, the fees payable, and relevant form, can be obtained from:

www.gov.uk/government/publications/appl ... us-form-ns.

It's a waste of money.

[krymell57]

I agree - waste of money ....

I believe my son falls under this section of the Adoption Act.

http://www.legislation.gov.uk/ukpga/2002/38/section/49

(5)References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as “child to be adopted” or “adopted child”) include a person who has attained the age of 18 years before the proceedings are concluded.

[vinny]

Yes. But read paragraph 9 of the Judgment.

[krymell57]

My complaint with this situation is that we started the adoption process when my son had just turned 17. We envisaged the process would take no longer than 6 months - well within the time period, and to be honest, we had no thoughts about him falling foul of any immigration acts - which were not even in our minds.

Through no fault of the child (which this case often refers to making sure actions are taken in their best interest) it was in fact delays by the Local Authority, which caused the adoption to come before the court at such a late stage. This resulted in the final order being made two weeks after his 18th birthday. The actual adoption was straightforward with no issues.

The 1981 Immigration Act is there to control immigration, and prevent the granting of British Citizenship to those who might be looking to gain a benefit from such status. In our case none of that happened. I do believe the Secretary of State might have leway in such a matter?