Insights

Another nonsensical decision: The Home Office denies entry of soon-to-be adopted baby

21/06/2019

The adoption of children from other countries used to attract quite significant attention in the media. Celebrities like Angeline Jolie shone a spot light on the process of adopting a child from overseas. But the desire to start a family and adopt a child is not restricted to just celebrities - the case of Nina Saleh is an example of this. 

International adoptions actually dropped by 72 percent in 2015. Part of the reason for this drop is that more and more prospective parents are considering surrogacy or alternative ways to build a family (such as fertility treatments). Another reason for the drop in international adoptions is the implementation of legislation which prevents foreign parents from adopting - Ethopia and Russia are just two examples of countries which have taken such steps. 

The main reason cited by countries when it comes restricting or eliminating foreign parents from the adoption process is that of 'child welfare'. For example, in 2012, when Russia banned Americans from adopting Russian children, the law was named after Dima Yakovlev. Dima Yakovlev was a 2 year old who died in 2008 as a result of being locked in a hot car by his adoptive father. 

Against this backdrop, it is understandable that the Home office would take a robust approach to a visa application which involved an adopted (or soon to be adopted) child. The Home Office is under a duty to act in the best interests of a child and sometimes that means ensuring that the necessary safe-guarding measures have been addressed. However, the case of Nina Saleh is one which highlights the inadequacies of the Home Office when it comes to applications which require a real understanding of the law and the rationale behind it. 

The Home Office decision in this case shows very little regard for the rights of a UK resident and the safety of her new-born (soon-to-be) adopted baby.

In order to adopt a child from overseas, a strict procedure is followed in order to safeguard children from exploitation. There are four types of adoption:

  • Adoptions under the terms of the Hague Convention
  • Overseas adoptions recognised by UK law
  • Overseas adoptions not recognised by UK law
  • De facto adoptions (defined under the immigration rules but has not legal significance in family law)

This case relates to the third and fourth type of adoption; adoptions which takes place in Pakistan are not recognised by UK law. The baby in this case needed to enter the UK so that the Nina Saleh could complete the adoption process. The Home Office have applied the law without any true consideration to the facts or circumstances of the mother and child.

The case of W v SSHD [2017] EWHC 1733 (Fam) does provide some hope for Nina Saleh; the Court found that by not recognising an adoption order which complied with the requirements of foreign law, the result would be in breach of the parent(s) Article 8 rights to respect their family life.

The decision made by the Home Office does not fill one with confidence that difficult or unusual cases would be given the time and anxious scrutiny that they deserve. Most parents in a position such as this may find that it will be for the Court to correct the mistakes made by the Home Office. Therefore, applications of this nature should be subject to careful planning and analysis - failure to meet just one requirement could cause months of stress in what should otherwise be a happy period in both the child and parent's life. 

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A baby whose legal guardian is a UK resident has been blocked from entering the country, leaving her and her soon-to-be adoptive mother “stranded” in Pakistan. The Home Office has been accused of “trampling” on the rights of families after it repeatedly refused to grant entry clearance to Sofia Saleh, now aged seven months, despite the fact her sole carer has been settled in Britain for 20 years.

https://www.independent.co.uk/news/uk/home-news/home-office-baby-adopted-uk-resident-immigration-a8960296.html