Court report: Case of adoption over immigration

The applicants were British citizens of Pakistani origin. They married in 1996 but were unable to have children. They agreed with the wife's brother in 2002 that they should adopt one of his children. In 2007, M, aged 15, together with his mother and brother, visited England on a visitor's visa. After M's visa expired, the applicants applied to adopt him. The Secretary of State for the Home Office opposed the granting of the adoption (which would give M UK citizenship) on the basis that M's biological parents had deceived immigration authorities by obtaining a six-month visitor's visa for M when the true intention was that the child would remain indefinitely in the UK. The local authority and M's guardian both supported the adoption.

The judge recognised the fact that M had overstayed his visa and therefore was in breach of immigration rules. However, there was no deceit on the part of the applicants. The decision whether to grant an adoption is one for the judge, who must make his or her decision in accordance with Section 6 of the Children and Adoption Act 2002 rather than in accordance with immigration rules. Adoptions of a foreign child would not be granted if the adopters did not intend to exercise parental authority, but just to assist the child to acquire the right of abode in England. In the present case, however, the applicants' love and devotion to M was genuine and they had every intention to exercise parental authority over him. An adoption order was therefore granted.

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Case number [2009] EWCA Civ 610

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