In the recent case of TY (Overseas Adoptions – Certificates of Eligibility) Jamaica [2018] UKUT 197 (IAC), the Upper Tribunal rejected the suggestion from the Home Office Specialist Appeals team that Immigration Rules 316A and 310 “essentially concerned” the same issue. The two rules are very different. Rule 316 is concerned with children seeking entry clearance to the UK for the purpose of being adopted. Children covered under Rule 316 are those that have not been adopted or, where the adoption (which usually takes place in their domestic country) is not recognised under UK law. Rule 310 is activated where children who are formally recognised as being adopted under UK law seek entry to the UK. In considering Rule 316, the Upper Tribunal paid particular attention to the Certificate of Eligibility which is issued to prospective and suitable adopters and provided the following guidance:
i. The Tribunal should be aware of the key legal processes which operate in different parts of the UK and allow for a Certificate of Eligibility to be issued;
ii. The Certificate of Eligibility reflects the result of the inquiries and assessment carried out by before it is issued;
iii. The Certificate of Eligibility is so important that it can form a decision made on an application. The Tribunal should therefore not readily ignore the circumstances of the applicant reflected within it; and
iv. The law of adoption and Immigration Rules in the UK are two different things, but they are to be seen as one when assessing whether entry clearance should be granted.
The point to be noted from this judgement is that if you wish to adopt a child from a country which is not recognised under the Adoption (Recognition of Overseas Adoptions) Order 2013, there is an alternative option as per Immigration Rule 316. Namely, to obtain a valid Certificate of Eligibility and apply for entry clearance for the child to enter the UK for the purpose of adoption.
