Chapter 14 - Settlement entry for children

14.1	The settlement provisions for children under the Rules
14.2	How a parent is defined under the Rules (Rules Paragraph 6)
14.3	Children of parent(s) or a relative settled (or to be admitted for settlement) in the United Kingdom and how they qualify (Rules Paragraph 297)
14.4	Children of parent(s) being admitted with a view to settlement in the United Kingdom and how they qualify (Rules Paragraph 301) [Updated 29 July 2008]
14.5	"Sole responsibility"
14.6	"Serious and compelling family or other reasons"
14.7	Children born in the UK on or after 1 January 1983 but who are not British Citizens (Rules Paragraphs 304 and 305)
14.8	Adopted children and how they qualify
14.9	Children adopted in designated countries and how they qualify (Rules Paragraph 310-316)
14.10	Children coming for adoption (Rules Paragraph 316A)
14.11	Interim Hague Convention Adoption Orders or "Entrustment" Orders under Paragraph 316D of the Rules
14.12	De facto adoption
14.12.1	Circumstances in which a de-facto dependency may arise
14.12.2	Establishing the existence of a de-facto adoption
14.12.3	Requirements for either limited leave to enter with a view to settlement or indefinite leave to enter where a de-facto adoption has taken place
14.12.4	Authorisation of entry clearance
14.12.5	Refusal
14.13	Residence (formerly custodianship) orders
14.14	Children over 18 years and how they qualify
14.15	Children of fiancé(e)s (Rules Paragraph 303A)
14.16	Children of polygamous marriages (Rules Paragraph 296)
14.17	The children under 12 concession (withdrawn on 29 March 2003)
14.18	Assessment of age
14.19	Maintenance and accommodation (see Chapter 9)
14.20	Children who become 18 before a decision is reached
14.21	The DNA scheme - [Updated]
14.22	Inter-country surrogacy arrangements

ANNEXES

14.1	Countries whose custody orders are valid in the United Kingdom
14.2	Countries specified in the Adoption Order 1973
14.3	Intercountry adoption
14.4	Request for DNA testing (GV 39)
14.5	DNA blood tests under Government Scheme

Chapter 14 - Settlement entry for children

14.1 - The settlement provisions for children under the Rules
There are various provisions under the Rules whereby children can be considered for entry to the UK either for immediate settlement or with a view to settlement. Each provision is dealt with separately in this chapter. They are:

• A child who wishes to join or accompany a parent, parents or a relative who is either present and settled in the UK or will be admitted for settlement on arrival.
• A child who wishes to join or accompany a parent when the parent has limited leave to enter or remain in a category leading to settlement.
• A child born in the United Kingdom on or after 1 January 1983 but who is not a British Citizen.
• A child accompanying or joining adoptive parents (including adoptions in the UK or in designated countries, children coming for adoption in the UK, and de facto adoptions).
• A child over the age of 18 years.
• A child of a fiancé(e)/proposed civil partner.
• A child of a polygamous marriage.

14.2 - How a parent is defined under the Rules (Paragraph 6)
Under the Rules, in addition to the father and mother of a legitimate child, any of the following may be defined as a 'parent':

1. the stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership;
2. the stepmother of a child whose mother is dead and the reference to stepmother includes a relationship arising through civil partnership and;
3. the father as well as the mother of an illegitimate child where he is proved to be the father;
4. an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the United Kingdom or where a child is the subject of a de facto adoption in accordance with the requirements of Paragraphs 309A of the Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under Paragraphs 297-303;
5. in the case of a child born in th United Kingdom who is not a British Citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parent(s)' inability to care for the child.

14.3 - Children of parent(s) or a relative settled (or to be admitted for settlement) in the United Kingdom and how they qualify: Rules Paragraph 297
To qualify for indefinite leave to enter the United Kingdom the child must satisfy the ECO that he/she is seeking to accompany or join a parent, parents or a relative under one of the following circumstances:

• both parents are settled in the UK;
• both parents are to be admitted for settlement on the same occasion as the child;
• one parent is settled and the other is to be admitted for settlement on the same occasion as the child;
• one parent is dead and the other is settled/to be admitted for settlement;
• one parent has sole responsibility for the child's up-bringing and is settled/to be admitted for settlement;
• one parent or a relative other than a parent is settled/to be admitted for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable, and suitable arrangements have been made for the child's care.

In addition the parent(s) or relative must show that the child:

1. is under the age of 18;
2. is not leading an independent life, is not married and has not formed an independent family unit;
3. can and will be accommodated adequately by the parent(s) or relative the child is joining without recourse to public funds in accommodation which the parent(s) or relative owns or occupies exclusively;
4. can and will be maintained adequately by the same parent(s) or relative without recourse to public funds.

Endorsements
Entry clearances issued to children in this category should be endorsed as one of the following (as appropriate):

14.4 - Children of parent(s) being admitted with a view to settlement in the United Kingdom and how they qualify Rules Paragraph 301 [Updated 29 July 2008]
A child may qualify for leave to enter with a view to settlement through qualifying to accompany or join a parent or parents who has/have been granted limited leave to enter or remain with a view to settlement.

The requirements at (i) to (iv) in the section above are applied to children seeking entry to join a parent or parents only (i.e. not another relative) with a view to settlement. The immigration status of the parent(s) must be one of the following:

• one parent is present and settled/to be admitted for settlement and the other parent is to be or has been given limited leave to enter or remain in the UK with a view to settlement;
• one parent has sole responsibility for the child's upbringing and is to be or has been given limited leave to enter/remain in the UK with a view to settlement;
• one parent is to be or has been given limited leave to enter/remain in the UK with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable, and suitable arrangements have been made for the child's care.

Endorsements
Entry clearances issued to children in this category should be endorsed as follows (as appropriate):

Children of parents with exceptional leave to remain in the UK (ELTR) and Humanitarian Protection and Discretionary Leave are dealt with in Chapter 16.

14.5 - "Sole responsibility"
In order to fulfil the 'sole responsibility' requirement of the Rules, a sponsoring parent must be able to show that he or she has been solely responsible for exercising parental care over the child for a substantial period. This is in contrast to the concept of the ordinary family unit where responsibility for the child's upbringing is shared between both parents.

You will need to be satisfied that the sponsoring parent has consistently supported the child, either by direct personal care or by regular and substantial financial remittances.

If the sponsoring parent and child are separated, the child will normally be expected to have been in the care of that parent's relatives rather than the relatives of the other parent. This means, for example, that an application by a child to join his/her mother in the United Kingdom on the basis of sole responsibility should normally be refused if it transpires that the child has been in the care of his/her paternal relatives and that the father lives nearby and takes an active interest in the child's welfare.

The following factors should be considered in assessing sole responsibility:

• If the parents' marriage/civil partnership has been dissolved, one of the parents must have been awarded legal custody, which includes assumption of responsibility for the child. (You should take care to ensure that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order). Annex 1 contains a list of those countries whose custody orders can be recognised as valid in UK.
• Does the marriage / civil partnership subsist, but the parents do not live together?
• Are the parents married / in a civil partnership?
• If the parent migrated to the UK:
  • how long has the parent been separated from the child ?
  • what were the arrangements for the care of the child before and after the parent migrated ?
  • what has been/what is the parent's relationship with the child?
• By whom, and in what proportions, is the cost of the child's maintenance borne?
• Who takes the important decisions about the child's upbringing, for example where the child lives, the choice of school, religious practice etc?

14.6 - "Serious and compelling family or other reasons"
You should always consider whether the circumstances surrounding the child are exceptional in relation to those of other children living in that country. The fact that the general standard of living in the United Kingdom is higher than in the child's own country is not acceptable as a serious and compelling reason under this provision.

The factors relating to the parent in UK can be of an emotional or physical nature (or both).

Where the physical or mental incapability of the parent who is not in the UK has been established, an entry clearance should normally be granted.

You should consider all the evidence as a whole, deciding each application on its merits.

14.7 - Children born in the UK on or after 1 January 1983 but who are not British Citizens ( Rules Paragraphs 304 and 305 )
In practice, ECOs will rarely have to deal with this category of entry clearance application.

Before 1 January 1983, every person born in the United Kingdom was automatically British. The British Nationality Act 1981, which came into effect on 1 January 1983, stated that a person born in the United Kingdom after that date would only be a British Citizen if either of the parents was a British Citizen or was settled in the UK.

A child born in the United Kingdom who is not a British Citizen is subject to immigration control. The parents of such a child will normally regularise the child's immigration status, e.g. by applying to the Home Office to have the child given the same leave to remain as themselves. This means that if the child leaves the United Kingdom with its parents, e.g. for a holiday, re-entry will be allowed within the child's existing leave to remain.

However, there will be instances when a child leaves the United Kingdom without leave to remain having been authorised and therefore requires an entry clearance to return. In these circumstances, you should be satisfied that the applicant meets all the following conditions:

• intends accompanying or joining a parent or parents who have, or are given, leave to enter or remain in the UK; or is accompanying or joining a parent or parents one of whom is a British Citizen or has right of abode in the UK; or is a child in local authority care in the UK;
• is under 18 years of age;
• was born in the UK on or after 1 January 1983;
• is not leading an independent life, is unmarried and has not formed an independent family unit;
• has not been away from the UK for more than 2 years.

Maintenance and accommodation requirements do not apply to a person who qualifies under these provisions.

What is the appropriate endorsement?
The visa endorsement must be in line with that of the parent(s) in the UK so you will need to see evidence of this. For example, if a parent is a work permit holder or student in the UK, the endorsement should read 'TO JOIN / ACCOMPANY FATHER / MOTHER / PARENTS'; if a parent is settled in the UK (e.g. has obtained settled status after being a work permit holder), the endorsement should read 'SETTLEMENT ACCOMPANYING / TO JOIN MOTHER / FATHER'.

Leave to enter the United Kingdom should be granted in line with that of the parents; if the parents have different durations of leave, it will be for the longer period.

If the parent is a British Citizen (e.g. having settled and subsequently registered), you should consider whether the issue of a Certificate of Entitlement or British Passport might be appropriate.

A child to whom this section of the Rules applies may also seek entry under another part of the Rules e.g. as a visitor or student.

14.8 - Adopted children and how they qualify
Introduction:
Adoption is a complex subject, but you should always bear in mind that the child's welfare is paramount. New legislation brought into effect on 1 June 2003 (The Adoption and Children Act 2002) tightened the regulations to make it a mandatory requirement for ALL prospective adoptive parents to have undergone a Home Study Report by their local Social Services into their suitability to become adopters.

However, there are regional exceptions. For example, under Scottish law a Home Study is required for all non-relative inter-country adoptions. For relative inter-country adoptions a Home Study is required for a Hague Convention country, but not for a designated list or non-designated list country. So, it is imperative that ECOs refer to the relevant Home Department to find out the necessary requirements.

N.B. This is not retrospective. Any adoption in a designated country, which pre-dates the introduction of the new legislation, should be dealt with under the old legislation. Therefore, you should not insist on the adopters producing a Home Study Report.

When the Home Office are contacted by people wishing to adopt a child from overseas, they send them a copy of the leaflet reproduced at Annex 14.3. Posts should make copies of this locally for distribution where they are the first point of contact. The leaflet also gives advice on nationality and ECOs should familiarise themselves with its contents.

Types of adoption and who decides the application
ECOs should decide into which of the following categories the application falls and, who deals with the application:

Children adopted in the United Kingdom or overseas in a country whose adoption orders are recognised, or have been adopted in a Hague Convention country. A list of such countries can be found in Appendix 3 and 4 of Annex 14.3.	For decision at Post under Rules Paragraphs 310 or 314
Children coming for adoption in the UK, including where a child has been adopted overseas but in a country whose orders are not recognised	For consideration under the Rules Paragraph 316A, or if the adoption is under the terms of the Hague Convention under Paragraph 316. Mandatory referral to the Departments responsible for adoption in England, Scotland, Wales and Northern Ireland (see Paragraph 14.10: referral requirements)
Where an adoption is considered, de facto, to have already occurred	For decision under the Rules Paragraph 309A

14.9 - Children adopted in designated countries and how they qualify
( Rules Paragraphs 310 - 316)

Adopted children who qualify for indefinite leave
For the child to qualify for indefinite leave to enter the United Kingdom you must be satisfied that the child is seeking to accompany or join an adoptive parent or parents under one of the following circumstances:

1. both parents are settled in the UK; or
   1. both parents are to be admitted for settlement on the same occasion as the child; or
   2. one parent is settled and the other is to be admitted for settlement on the same occasion as the child; or
   3. one parent is dead and the other is settled/to be admitted for settlement; or one parent has had sole responsibility for the child's upbringing and is settled/to be admitted for settlement; or
   4. one parent is settled/to be admitted for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care.

In addition the adoptive parent(s) must show that the child:

• is under the age of 18;
• is not leading an independent life, is not married / in a civil partnership and has not formed an independent family unit;
• will be maintained and accommodated adequately without recourse to public funds in accommodation which the adoptive parent(s) own or occupy exclusively;
• was adopted in a country designated in the Adoption Order 1973 and at a time when either both adoptive parents were resident together overseas or an adoptive parent was settled in the UK;
• has the same rights as any other child of the marriage;
• was adopted due to inability of original parent(s) or current carer(s) to care for him or her and there has been a genuine transfer of responsibility to the adoptive parents and has lost or broken ties with the original family;
• has not been adopted merely to facilitate entry to the UK.

ENTRY CLEARANCE SHOULD BE ENDORSED 'SETTLEMENT TO JOIN/ACCOMPANYING FATHER/MOTHER/PARENTS'. ILE.

Adopted children who may enter with a view to settlement
If one of the adoptive parents only qualifies for limited leave to enter with a view to settlement, the child may qualify to accompany or join such a parent under Paragraph 314 of the Rules.

The requirements are the same as those at (b) to (h) in the section above and the child must have adoptive parents (or a parent) who qualify under the following:

• one parent is settled/to be admitted for settlement and the other parent is to be or has been given limited leave to enter or remain in the UK with a view to settlement; or
• one parent has sole responsibility for the child's upbringing and is to be or has been given limited leave to enter/remain in the UK with a view to settlement; or
• one parent is to be or has been given limited leave to enter/remain in the UK with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care.

ENTRY CLEARANCE SHOULD BE ENDORSED 'TO JOIN/ACCOMPANYING FATHER/MOTHER/PARENTS/CYR'. LTE 24 MONTHS CODE 1.

Documents to be produced
In addition to the documents needed to cover the maintenance and accommodation requirements, ECOs should ask for the following:

• the child's original birth certificate showing its name at birth
• a report from the overseas equivalent of the social services department detailing the child's parentage and history, the degree of contact with the original parent(s), the date, reasons and arrangements for the child's entry into an institution or foster placement and when, how, and why the child came to be offered to the adoptive parent(s). In the case of a relative adoption where a social services report may not be available, the adoptive parent(s) should be asked for a statement in writing covering the same points
• where the child has been abandoned, a certificate of abandonment from the authorities previously responsible for the child's care
• the adoption order

These documents should help the ECO to assess considerations (b), (e), and (g) above.

The effect of overseas adoptions in UK law
As noted in Annex 14.3, overseas adoptions do not confer British Citizenship (unless they are adoptions under the terms of the Hague Convention which have been completed abroad and the final Adoption Order has been issued by the courts in the child's originating country). Because of this sponsors sometimes decide to adopt again through the UK courts, even though the overseas adoption is recognised. In these circumstances sponsors should consult the Department of Health or Devolved Authority if the adopters are resident in Wales, Scotland or Northern Ireland, about relevant documentation needed from the child's country of origin so that the adoptive parents can more conveniently obtain it there before they return to the United Kingdom.

The sponsors should also be told that on arrival in the UK they must notify their local authority Social Services Department within 14 days of the child's arrival in the UK and their own circumstances.

Interim adoption orders, (non Hague Convention - for interim Hague Convention Adoption Orders or "Entrustment" Orders under Paragraph 316D of the Rules - see below)

In some designated countries it is the practice to issue an interim adoption order, which is converted to a full order at a later date (normally twelve months after the interim order). Where an interim adoption order has been seen and all other relevant documents have been seen (see above) and all the requirements of the Rules have been met an entry clearance may be granted.

Where entry clearance is issued in this category, ECOs should notify the Home Office - MMSR (Adoptions) - of the date entry clearance was issued, the child's full name and date of birth and the adoptive parent(s)' full names and address.

Entry clearance should not be issued in some other category e.g. as a visitor.

14.10 - Children coming for adoption, Paragraph 316A of the Rules
The prospective parent or parents of a child seeking admission to the UK for the purpose of being adopted there must, on the same occasion that the child is seeking admission, meet one of the following criteria:

• both prospective parents are present and settled in the UK or being admitted for settlement;
• one prospective parent is present and settled and the other is being admitted for settlement or given limited leave to enter or remain with a view to settlement;
• one prospective parent is being admitted for settlement on the same occasion that the other is being granted limited leave to enter with a view to settlement;
• one prospective parent is present and settled or is being admitted for settlement and has sole responsibility for the child's upbringing;
• one prospective parent is present and settled or being admitted for settlement and there are serious and compelling family or other considerations which would make the child's exclusion undesirable, and suitable arrangements have been made for the child's care.

The requirements to be met by the child are that he or she:

1. is under 18;
2. is unmarried/is not in a civil partnership, is not leading an independent life and has not formed an independent family unit;
3. can and will be maintained and accommodated adequately without recourse to public funds in accommodation owned or occupied exclusively by the prospective parents;
4. will have the same rights and obligations as any child of the marriage;
5. is being adopted due to the inability of the original parents or current carers to care for the child and there has been a genuine transfer of parental responsibility to the prospective parents;
6. has either lost or broken ties with the family of origin or intends to do so;
7. will be adopted in the UK by the prospective parents and that the adoption is not one of convenience to facilitate entry to the UK.

Deferral to Lead Department is mandatory
Entry clearance applications made by or on behalf of children going to the UK for the purpose of adoption must be deferred to the relevant Lead Department in the UK (see deferral requirements below) to ensure that the Social Services have approved the prospective parents for adoption and completed a home study (this will be needed to comply with (g) above) and for the lead department to issue a Certificate of Eligibility in respect of the prospective adopters.

Applications in this category where the prospective parents are not married must be referred to NCC2, Home Office for a decision.

If the child is related to the prospective parents, consideration may also be given to the application under Paragraph 297 of the Rules (see 14.3 above).

Documents to be produced
ECOs should assess the immigration aspects of the case in line with the requirements above. You should, however, note the following with regard to the documentary evidence:

• where a report from the local equivalent of the social services is not available, the adoptive or prospective adoptive parent(s) should be asked for a statement in writing covering the same points
• there may not be a local adoption order

In addition to the documents set out in Paragraph 14.9 , in "for adoption" cases ECOs should see:

• an additional information form and undertaking completed by the sponsors (see appendix 5 of Annex 14.3)
• a British Agencies for Adoption and Fostering Intercountry Adoption medical form for the child
• written permission from the authorities responsible for the child's care in its country of origin for the child to come to the UK for adoption. Where a local adoption order exists, it can be taken as meeting this requirement
• the written consent of the child's natural parent(s), or those with legal responsibility for the child, to the adoption and confirmation that the meaning of an adoption order granted in the UK (i.e. that it is irrevocable and severs all ties with the birth family) is understood. This permission must be given when the child is at least six weeks old and be notarised in the child's own country. ECOs should also be satisfied that it has been given freely i.e. that the natural parent(s) have not been in any way pressurised, including by the offer of cash incentives, into giving the child for adoption

In addition, sponsors should have lodged the following with their appropriate territorial health department:

• medical forms for the sponsor(s)
• an up-to-date Home Study Assessment of the prospective adopters suitability to adopt a child written by the sponsors local social services or social work department or adoption agency approved for this purpose by the DfES. N.B there is no need for ECOs to see the Home Study report. However, if a copy is available it may well help in assessing the maintenance and accommodation requirements
• a Certificate of Eligibility issued by the DfES or Devolved Authority.

Entry clearance for children nearing the age limit for adoption
As nobody aged 18 or over can be adopted under the laws of the United Kingdom and as a child must have lived with the prospective adopters for at least 12 months before an adoption order can be made, any case where the applicant is approaching 17 must be accorded priority so that the application for entry clearance does not fail merely because of the passage of time.

You should refuse entry clearance to a child who is already 17 unless he/she is related to the prospective adopters (in which case you should refer the application to UK Border Agency, Home Office, for a decision).

Interviews
Where the natural parents are known (e.g. for private adoptions), you must interview them. If the case involves an illegitimate child, the mother should be interviewed.

If the child is old enough to be interviewed alone (for guidance, see section on interviews in Chapter 6), you should take the opportunity to explain to him/her what adoption means and to discover the child's wishes and feelings in the matter.

You do not need to interview the adoptive parents unless the documents provided fail to satisfy you that the requirements are met.

Deferral requirements
You should defer the application with full details to the appropriate Department responsible for adoption in the UK at the addresses given under the DfES or Devolved Authority at Annex 14.3.

You should ensure that the deferral covers as much of the following as possible. Most of this is likely to be covered by the documents but any points which are not should be covered by the interviews:

About the natural parents (if able to be interviewed)

• Information about the natural parents' home circumstances and the family composition, i.e. parents, brothers and sisters of the child (whether or not they all live in the same household) and any other relatives living in the same household as the child
• The reason(s) why the natural parents are offering their child for adoption
• Whether the natural parents know the intending adopters and whether they are related to them
• Whether the natural parents are aware of the kind of home in which the child will live in the United Kingdom
• Whether the ECO is satisfied that the natural parents were not in any way pressurised (including the offer of cash incentives) into signing the adoption agreement and that they fully understand the implications of the adoption, particularly that it will deprive them of all parental rights over the child for ever. Where there is doubt or concern that the original consent may not be sufficient for the UK courts, the ECO may ask the natural parents to complete a parental consent form (obtainable on request from the Lead Department). It is not mandatory for them to complete it, but if they do, the ECO must ensure they are given a copy in their own language as well as the English version
• If the natural parents are married but living apart - whether the parent not living with the child takes any interest in the child and contributes to the child's maintenance.

About the child

• The child's name, sex and age
• The child's educational standard and details about his/her school where appropriate
• Whether the child has expressed the wish to come to the United Kingdom for adoption and what the child's feelings are about leaving his/her natural parents or guardians and family for ever and becoming somebody else's child
• Whether the child knows the intending adopters, what the child feels about them and what the child feels/knows about living in the United Kingdom
• Whether the ECO is satisfied that the child fully understands what adoption involves and what the implications are
• In the interests of the child, brief details of any history of illness in the child's family
• (If the child is living with guardians, or an agency):
  • why the child is not living with the natural parents and the circumstances which led to the child being cared for by the guardians/agency.
  • whether the child is still in contact with the natural family.
  • how the guardians or agency came into contact with the intending adopters.
  • (if appropriate) whether they have informed the natural parents of the child about the adoption application.
• Whether there have been any adoption proceedings in the country of origin and, if so, the result.

You should state in the referral whether the child has been interviewed without the parents or guardians being present.

If the child is in the care of an agency, you should be satisfied as to the bona fides of the agency and the legal rights of the agency to offer the child for adoption. If the parents cannot be traced or are dead you should say so in the referral.

Where possible, you should confirm that the relevant authorities in the child's country of residence do not object to the proposed adoption.

You should give your assessment of the genuineness of the application at the end of the deferral.

Applications should be deferred by bag, if possible, with a covering letter giving full names and addresses of the prospective adoptees and child and number of sheets being faxed (pages must be clearly numbered). Interview notes should be typed and copies of all paperwork retained at Post for 3 years. The Lead Department will reply direct to the ECO within 10 working days of receiving the correct documentation.

If the Lead Department confirm that the necessary enquiries in the UK have been completed satisfactorily and raise no objections, the ECO may issue entry clearance endorsed HO/360/FOR ADOPTION, inform the Lead Department of the date of issue, and send the original file to the Department.

14.11 - Interim Hague Convention adoption Orders or "Entrustment" Orders under Paragraph 316D of the Rules
This provision is for use when the adoption is in accordance with Article 17(c) of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 where at least one of the adopting parents is habitually resident in the UK and the parents complete a Hague Adoption through the central authorities in the UK and the central authority in the other Hague country, and Home Office confirms the Article 17(c) agreement by due notification with the DfES or relevant Devolved Authority. Entry clearance in the Hague 'for Adoption' category under Paragraph 316D-F as in Cm5829. Only persons who are present and settled in the UK will be granted entry clearance under this category although the rules only require 'Habitual Residence'.
NB. 'Habitual Residence' is a DfES definition and has no specific meaning in terms of the Immigration Rules (see note below). This provision will be used by adopting parents who have a child 'entrusted' to them by the Central Authority in the child's originating country and who are seeking to bring the child to the UK in order to complete the adoption through the UK courts.

The requirement to be satisfied in the case of a child seeking limited leave to enter the United Kingdom for the purpose of being adopted in the United Kingdom under the Hague Convention are that he or she:

1. is seeking limited leave to enter to accompany one or two people each of whom are habitually resident in the United Kingdom and who wish to adopt him/her under the Hague Convention "prospective parents";
2. is the subject of an agreement made under Article 17(c) of the Hague Convention; and
3. has been entrusted to the prospective parents by the competent administrative authority of the country from which he/she is coming to the United Kingdom for adoption under the Hague Convention; and
4. is under the age of 18; and
5. *can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the prospective parent or parents own or occupy exclusively; and
6. * holds a valid United Kingdom entry clearance for entry in this capacity.

Note regarding (i) above:
It must be noted that although the Rules state that the prospective parents must be "habitually resident" in the United Kingdom, (a term used in the hague Convention), there is no definition of "habitual residence" in relevant legislation. Immediately prior to the DfES or appropriate Devolved Authority making an Article 17(c) Agreement with the Central Authority of the child's home country, they have agreed to contact the UK Border Agency using agreed pro-formas to allow a check to be made on the immigration and nationality status of the prospective adopters. Where the prospective adopters are British Citizens or have Indefinite Leave to remain or have evidence that they have acquired Permanent Residency under EU Law, the DfES or Devolved Authority will be advised that they can proceed to make the Agreement. In the unlikely event of the prospective adopters not having any of these statii, the DfES or Devolved Authority must be contacted and advised that the prospective adopters do not have the legal capacity to sponsor the entry of a dependent child under the Immigration Rules and the agreement must not be made.

Where there is any doubt as to whether the adopter(s) are habitually resident, for instance they have lived outside the UK for a period and claim not to reside in the UK, they must provide to the Entry Clearance Officer written evidence that they have obtained independent legal advice to support their contention. Such evidence must be sworn and signed under oath in front of a solicitor who is also a Commissioner for Oaths.

Documents to be produced
ECOs will require sight of the adoption order, which must be an interim, (or "entrustment") Order made under the terms of the Hague Convention. ECOs must be aware that just because a country is a signatory to the Hague Convention, this does not mean that all adoption Orders made in that country are valid under the Hague Convention. Only adoption Orders made under the terms of the Hague Convention are so valid. An example of this is India. We will recognise adoption Orders made under the terms of the hague Convention but we do not recognise any other "domestic" Indian adoption Orders.

A list of Hague Convention signatory and acceeded countries can be found at Chapter 14, Annex 3, Appendix 3b . Check the Hague Convention website for up to date changes.

14.12 - De facto adoption
A de facto adoption is one that has already occurred through a natural process not necessarily recognised in any law. There is provision in the Rules at Paragraph 309Afor this category of entry. Where the child is related to the adoptive parent(s), consideration should first be given as to whether the child qualifies under Paragraph 297 of the Rules.

Whereas entry clearance in cases of designated country adoptions or 'children coming for adoption' are primarily considered on the basis of documentation which has led (or is leading) to legal formalisation of the child's adopted status, de facto adoptions are likely to have to be assessed from an overall picture of the present circumstances surrounding the "adoption", often with little or no documentary evidence. De facto dependency most frequently arises where British Citizens, or those settled in the UK, are living abroad and a child comes into their care, perhaps through being orphaned or abandoned.

Consideration of applications
By virtue of the revised definition of "parent" in Paragraph 6 of the Introduction to HC 395, (as amended by Cm 5253), and point (v) of Paragraphs 310, 311 and 314, it is not possible for an application on behalf of a child where a de-facto adoption has taken place to satisfy the normal requirements of the Rules. Therefore, applications involving such children should be considered under the specific provision for "de Facto" children in Paragraph 309-316 of the Rules.

Note: the recognition of a de-facto adoption by ourselves is purely for immigration purposes. It does not confer any legal status upon the relationship.

14.12.1 - Circumstances in which a de-facto dependency may arise
There may be occasions where a person or a couple are living abroad for a substantial period of time , and take charge of a child whom they later wish to bring here to live. This would not normally pose any problem if they have formally adopted the child in a "designated" country. however, the situation may arrise where:

• the country in which they have adopted the child is one whose adoption orders the United Kingdom does not recognise as valid, (a non-Hague, "non-designated" country); or
• they are caring for a child in a country which does not recognise adoption, such as a Muslim country. (Under Islamic law there is no legally recognisable adoption process but a child may, nevertheless, have been raised as part of a family and been treated as a natural child of that family.), or
• despite the country in which they are living and working being a "Hague Convention" or "designated" country, they are unable to adopt there, because, for example, they are not able to satisfy that country's particular requirements, e.g. to be a national of that country.

In considering cases, it is important to distinguish between those where the adoptive parent(s) are living and/or working abroad for a substantial period of time, and those where they have perhaps only been abroad for a limited period, e.g. for an extended holiday. In instances where the adoptive parent(s) are only abroad for a short time and therefore will only have been caring for the child for a limited period before seeking to bring him or her to the United Kingdom, the application for entry clearance should be considered under the "for adoption" procedure (Paragraph 316 of the Rules).

14.12.2 - Establishing the existence of a de-facto adoption
A de-facto adoption should only be considered as having taken place where:

1. at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and
2. during their time abroad, the adoptive parent or parents have:
   1. lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
   2. have assumed the role of the child's parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.

N.B. The requirement at (b)(i) should be interpreted flexibly where one of the parents has had to be away from the family home for some of the 12 months immediately prior to the application. So long as during the 18 month period he/she has spent and aggregate period of 12 months living together as a family with the child, the essential requirement, i.e. that both parents have bonded with the child, will have been met.

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

14.12.3 - Requirements for EITHER limited leave to enter with a view to settlement OR indefinite leave to enter where a de-facto adoption has taken place
Once it has been established that a de-facto adoption exists, the following requirements have to be satisfied by a child seeking either limited leave to enter with a view to settlement or indefinite leave to enter in this category. They are that he or she:

1. is seeking leave to enter to accompany or join an adoptive parent or parents in one of the following circumstances:
   1. both parents are present and settled in the United Kingdom; or
   2. both parents are being admitted on the same occasion for settlement; or
   3. one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
   4. one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
   5. one parent is present and settled and has had sole responsibility for the child's upbringing; or
   6. one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; or
   7. in the case of a de-facto adoption one parent has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is seeking admission to the United Kingdom on the same occasion for the purposes of settlement; and
2. is under the age of 18; and
3. is not leading an independent life, is unmarried, and has not formed an independent family unit; and
4. can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and
5. (v) is now deleted
6. was adopted in accordance with a decision taken by the competent administrative authority or court in his or her country of origin or the country in which he or she is resident, being a country whose adoption orders are recognised by the United Kingdom; or
   1. is the subject of a de-facto adoption; and
7. was adopted at a time when:
   1. both adoptive parents were resident together abroad; or
   2. either or both adoptive parents were settled in the United Kingdom; and
8. has the same rights and obligations as any other child of the adoptive parents or parents' family; and
9. was adopted due to the inability of the original parent(s) or current carer(s) to care for him and there has been a genuine transfer of parental responsibility to the adoptive parents; and
10. has lost or broken his ties with his family of origin; and
11. was adopted, but the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom; and
12. holds a valid United Kingdom entry clearance for entry in this capacity.

14.12.4 - Authorisation of entry clearance
The appropriate endorsement will be:

If entry clearance is being granted to a child on the basis of a de-facto adoption, the adoptive parent(s) should be advised that our recognition of the relationship is purely for immigration purposes . It does not confer any legal status on the relationship, and they therefore should notify their local social services of the child's presence here and their circumstances. Furthermore, they may wish to consider adopting the child through the courts here in order to clarify the child's status under United Kingdom law. They should be advised that, in this respect, further advice can be obtained from their local services and the DfES or relevant Devolved Authority.

14.12.5 - Refusal
If it is decided that it would not be appropriate to grant the child entry clearance because:

• a de-facto adoption has not taken place; or
• one does exist but the immigration requirements have not in some way been satisfied; and
• he/she doesn not qualify under a provision of the Rules; and
• it is decided there are no grounds for treating the case exceptionally,

the application should be refused.

14.13 - Residence (formerly custodianship) orders
Any application to come to the UK on the basis of applying for a residence order to join an unrelated adult should be referred to the Home Office. Any application to come to the UK on the basis of applying for a residence order to join a relative should be considered under the provision of Paragraph 297 of HC395.

14.14 - Children over 18 years and how they qualify
Any 'child' aged 18 years or over must qualify for settlement in his or her own right unless there are exceptional circumstances, in which case the application may be considered under the Rules on Other Dependant Relatives (Paragraph 317(i)(f)). Guidance on this Rule is contained in the 'Settlement: Dependent Relatives' (Chapter 15).

14.15 - Children of fiancé(e) / proposed civil partner: Rules Paragraph 303A
Entry clearance with a view to settlement may be granted to a minor dependent child of a parent who has been admitted, or is seeking admission, as a fiancé(e) under Paragraph 290 to 295 of the Rules provided the following additional requirements are met:

• the child is under the age of 18, is unmarried and is not leading an independent life nor formed an independent family unit;
• the child can and will be maintained and accommodated adequately without recourse to public funds with the parent admitted or being admitted as a fiancé(e);
• there are serious and compelling family or other considerations which make the child's exclusion undesirable;
• that suitable arrangements for the child's care have been made;
• there is no other person outside the UK who could be reasonably expected to care for the child;
• the terms of any custody order relating to the child do not prevent the child being taken to another country with a view to settlement there.

In assessing whether there are serious and compelling considerations it would normally be undesirable to exclude a child who had largely been cared for by the "fiancé(e) / proposed civil partner parent". With regard to another person being able to look after the child, this would include a close family member if there had been a genuine transfer of responsibility prior to the application. The age and health of the present carer will need to be taken into account in determining whether that person could be reasonably expected to continue caring for the child.

ENTRY CLEARANCE SHOULD BE ENDORSED 'ACCOMPANYING/TO JOIN MOTHER/FATHER' (as appropriate). LTE 6 MONTHS CODE 3.

14.16 - Children of polygamous marriages: Rules paragraph 296
A polygamous marriage is one where a partner, nearly always the husband, is married to more than one woman at the same time and therefore has more than one wife.

Guidance on the status of partners in a polygamous marriage is given in the 'Settlement: Spouses and Fiancé(e)s' Chapter 13.

When entry clearance must be refused
Under the Rules (Paragraph 296 in conjunction with 278) a child should be refused entry clearance if the child's parent is party to a polygamous marriage and there is another person living who:

• is the wife or the husband of the sponsor and who is, or at any time since marriage to the sponsor has been, in the United Kingdom; or
• has been granted right of abode or entry clearance to enter the UK as the spouse of the sponsor.

Unless sole responsibility can be demonstrated by the sponsor, Paragraph 296 overrides all other provisions in the Rules relating to children including the Under 12 Concession (see section below) and exceptional consideration given outside the Rules.

When entry clearance may be granted
If the mother from a polygamous marriage dies and the present father is the child's natural father and he is settled/to be admitted for settlement in the UK, the child may qualify for settlement or entry with a view to settlement in the normal way. In these circumstances, all the requirements relating to children joining/accompanying two parents must be met (the stepmother becoming, for the purposes of the Rules, the mother of the child upon the natural mother's death).

The child will not normally qualify under Paragraph 297(i)(f) while the natural mother is alive and still able to look after the child, unless there are factors in the child's circumstances which are serious and compelling in comparison with the ordinary circumstances of children in that country and which indicate that the child would not receive adequate care and attention there. Satisfactory arrangements for the child's care in the United Kingdom would, of course, still need to be demonstrated.

Effect of the Legitimacy Act 1976
The Legitimacy Act 1976 (amended by the Family Law Reform Act 1987) states that the child of a void marriage should be regarded as the legitimate child of the parents if at the time of the insemination resulting in the birth, or, where there was no natural insemination, the child's conception (or at the time of the celebration of the marriage, if later) either or both of the parents reasonably believed themselves to be validly married and the father was domiciled in England or Wales. This applies even if the belief that the marriage was valid was based on a mistake as to the law.

The Act, therefore, allows for the children of certain polygamous marriages which are void in the United Kingdom on account of the father's domicile at the time of the marriage to be considered legitimate.

It follows that some children of void marriages will be able to claim British citizenship although only a UK court can decide on the validity of a marriage under the laws of the United Kingdom.

A notification procedure which must be followed when a child is issued a Certificate of Entitlement under the provisions of the 1976 Act is described in the chapter on right of abode.

When an ECO needs to consider whether either of the parents reasonably believed the marriage to be valid, it should be remembered, for example, that a woman who enters into a polygamous marriage in a country which allows polygamy will normally have no reason to suppose that such a marriage would be considered invalid under the laws of the United Kingdom. This means in practice that unless there is clear evidence to cast doubts on the existence of a 'reasonable belief' by the parents, such a belief should be presumed by the ECO. It would not, however, be appropriate to presume such a belief, if, for example, the couple had been told before the conception of the child that the courts in the United Kingdom would not regard the marriage as valid.

If a child is regarded as legitimate under the Legitimacy Act and the father has been registered or naturalised as a British Citizen (or, before 1 January 1983, as a citizen of the United Kingdom and Colonies) before the child's birth, the child will have a claim to British citizenship by descent.

If a child is a British Citizen by descent in the circumstances set out in the previous paragraph, he/she will automatically have the right of abode in the United Kingdom. However, the child will have to prove this status by possession of a British passport. This status will not render his/her mother eligible for entry to the United Kingdom as a 'wife' if the marriage to the child's father is clearly void (although it may be that the mother will eventually qualify for admission as a dependant of her son/daughter).

14.17 - The Children under 12 concession (this was withdrawn on 29 March 2003)

14.18 - Assessment of age
In countries without reliable systems of birth registration, cases may arise where there is doubt whether children are the age they claim to be.

A physical examination by a doctor can be helpful in establishing the age in such circumstances, but bear in mind that any assessment can be only an approximation and that you will need to consider it in conjunction with other available evidence of age.

The use of X-rays to assess the age of children is not admissible. Doctors must not, therefore, be asked to use radiological data when giving age assessments.

14.19 - Maintenance and accommodation
Guidance on maintenance and accommodation is contained in Chapter 9.

14.20 - Children who become 18 before a decision is reached
Although the Rules normally require all applications to be decided in the light of the circumstances existing at the time of the decision, an exception to this is made in accordance with Paragraph 27 of the Rules in that no applicants should be refused entry clearance under Paragraphs 296 to 316 of the Rules solely on the grounds that they have become over age between the receipt of the application and the date of the decision.

14.21 - The DNA scheme - [Updated]
An overview of the scheme
The Government DNA Scheme is funded and administered by UK Border Agency, Visa Services Directorate and allows DNA relationship testing to be carried out on entry clearance applicants. A British-based firm is contracted to carry out the tests. Although the contract is re-tendered every three years under joint scrutiny by the FCO and the Home Office, the cost of DNA testing falls entirely to UK Border Agency, Visa Services Directorate. The Budget Monitor is the Operational Policy Programme Manager.

DNA tests arranged through the Government Scheme are provided free of charge to first time settlement applicants. Tests are only undertaken with the agreement of the applicant(s) (and sponsor) and the authority of an Entry Clearance Manager.

DNA tests are not compulsory

Who is tested?
First time applicants for Settlement or Family Reunion may be offered DNA tests under the Government Scheme where all other means of establishing a relationship have been exhausted.

Testing is not compulsory and persons cannot be required to take a test against their will. If an applicant declines a test, that alone will not be grounds for refusing the application, although an ECO should record the fact together with the reason given (if any) by the applicant for declining the offer.

Posts must pay attention to the following testing criteria:

• DNA testing should only be used for first time Settlement or Family Reunion applications, and;
• It should only be used as a last resort when every other means of verifying the relationship has been exhausted, and;
• It should only be used when related as claimed would be the sole reason for refusal, and;
• ECOs must refer each case to an ECM for authority before offering a DNA test.

Private DNA Tests
Applicants may commission privately funded DNA tests if they wish to do so. Post involvement should be minimal in private DNA testing cases. Post should send the applicant/testing body their list of the approved medical practitioners for this procedure in their region.

If it is a private test e.g. for appeal purposes, and not under the Government Scheme, the applicant is liable for all costs and should be advised accordingly. The collection and transportation of samples from the medical practitioner to the testing body and associated costs is also their responsibility.

Check if the testing body is DCA accredited by using the list on the DCA website.

http://www.dca.gov.uk/family/accredited-list.pdf

The DNA test results can be submitted with an application or after a refusal decision has been made enclosed with the grounds of the appeal. Evidence from private DNA tests may be considered by the ECO.

Which Posts can offer testing?
The DNA testing scheme is open to all Entry Clearance Posts.

What to say to the applicant
The applicant(s) should be told that

• there is no obligation to take part in a DNA test;
• the test is a very accurate way of establishing close genetic relationships;
• the report of a DNA test is the property of HMG (except in the case of private tests) and will be sent directly to the ECO.

Buccal Swab Sampling
Buccal swab (i.e. mouth swab) sampling kits should be requested by the Post directly from:
Orchid Cellmark Ltd
PO Box 265
Abingdon
Oxon
OX14 1YX
UK

E-mail: dna.service@orchid.co.uk
Tel: +44 (0)1235 528000
Fax: +44 (0)1235 528141

Bulk supplies can be provided if needed.

The company conducting the DNA tests undertake to despatch kits to Posts within 7 days of receipt of order.

Only a medical practitioner appointed by the Post (usually from the panel) should take the sample.

The medical practitioner's fee should be charged to Prism Account Code 619660 (DNA costs). The costs of any sundry items e.g. clinical waste containers, rubber gloves should also be charged to this code.

Posts should return samples by the FCO Bag (NB: Dhaka and Islamabad and some other large Posts have separate arrangements).

An ECO or nominated member of the Entry Clearance Section (e.g. an ECA) must supervise the sampling and should ensure that:

• The GV39 form (example at Annex 14.4) is completed after the sample is taken and that it is completed legibly, and
• it is signed by the parent/guardian (including signing on behalf of children sampled) and
• the language of the UK sponsor (if not English) is annotated in the Special Remarks section and is
• countersigned by the doctor and witnessed by the ECO or ECA.

Note: A thumb print may be taken if the applicant or parent/guardian is unable to sign (children should not be required to give thumb prints unless there are exceptional circumstances i.e. if they are unaccompanied; a note by the ECO/ECA explaining why a child has/has not been asked to give a thumb print should be included on the GV39).

If there are special instructions e.g. where an ECO suspects that a relationship is uncle/nephew rather than parent/child, this should be noted in the Special Instructions/Additional Information box on the GV39. The company will then assess this probability.

GV39 forms are obtained from Crystal Print Services by quoting 'CP20'. Each pack costs £5.80 and contains approximately 100 forms. Requisitions should be made on PRISM. Orders are made by telephone on +44 (0)20 7008 3679 or via e-mail: Crystalprint@fco.gov.uk quoting the Purchase Order number. Orders will not be accepted without a Purchase Order number.

Each sample is labelled with the name and date of birth of the person from whom the buccal sample was taken, together with the name and signature of the sampler and the date the sample was taken.

• If the applicant is unable to sign the label, his/her thumb print must be placed over the information on the label in light red or green ink. Parents or guardians must provide thumb prints on behalf of minors.
• All samples relating to one family application should be packed together.

The samples together with the yellow and blue copies of the GV39, are sent to the DNA company by FCO bag. The third copy, which is pink in colour, is retained at Post.

A Post can authorise the company to take a buccal sample from a person (e.g. a sponsor) in the UK. Orchid Cellmark writes to the sponsor advising about arranging sample appointments. If no reply is received within 14 days, the sponsor is telephoned if a number is provided and a second letter is sent. If the sponsor does not respond to a reminder sent by the company after a period of 14 days, Orchid Cellmark will notify the Post of the delay and will agree a revised time-scale. If the sponsor has not arranged a sample within 3 months, Post should contact UK Border Agency, Visa Services Directorate to agree next steps.

Contact Point for the DNA testing company
Posts should, where possible nominate a member of staff to be a contact point for DNA testing who can liaise with the DNA testing company. Contact details of the nominated member of staff should be sent to the DNA Administrator, in UK Border Agency, Visa Services Directorate. The DNA testing company may need to contact the post for details of the sponsor in cases where they have been unable to make contact or for other queries. In order to prevent delays in processing the DNA test. Posts should respond to queries as quickly as possible and inform the DNA testing company of any delays or action taken.

DNA test reports should be received by Posts within 35 days of the receipt of all the samples (including the UK sponsor's) by the testing company. The DNA Administrator in UK Border Agency, Visa Services Directorate should be informed by Posts of all cases where reports were received outside the 35 day period.

Clarification of reports should be requested direct from the company.

Assessing the reports
The reports will state the mathematical likelihood that the applicant(s) and sponsor are related as claimed as opposed to being unrelated, or related as the next closest family member. If the parties are not related as claimed, the report will indicate wherever possible the likely nature of the relationship.

The ECO must assess the relationship(s) on the balance of probabilities from all the available evidence.

Where DNA evidence is the only evidence available to the ECO, a report that suggests the applicants are related as claimed should be considered sufficient.

Where other evidence is available to the ECO, the strength of the DNA results must be considered in conjunction with this.

What action to take on the results

Unrelated to both parents
If a child is unrelated to the claimed parents, the application should normally be refused.

One or other of the "parents" is a relative
If one of the alleged parents is found to be a second degree relative such as an aunt or uncle and the child has been brought up as a member of the family unit, the ECO should review whether there are serious and compelling family or other reasons for considering the child's application under Paragraph 297(i)(f) of the Rules.

Child not related to the claimed mother
In such a case it will be necessary to establish whether the child was born to another wife (particularly if the child is claiming citizenship by descent) and if so, whether the child lives with the natural mother or the claimed mother. Depending on circumstances, the provisions of one of the sub paragraphs of Rules Paragraph 297(i) may be appropriate.

In a case where the DNA report shows that the child may have been born out of a previously undisclosed earlier marriage, it may be necessary to investigate questions of polygamy and legitimacy. Where the child's natural mother is not seeking entry or does not qualify for admission, the sponsor would normally have to demonstrate that he/she has exercised sole responsibility for the child's upbringing (Rules Paragraph 297(i)(e)).

Child not related to claimed father
There may be any number of reasons why a claimed father may not be a child's natural father including the death of the first husband, rape or adultery. ECOs must handle such cases with sensitivity as it may not be obvious whether the husband or other family members know of the true relationship and there may be serious repercussions for the wife and child if the information is disclosed (see illegitimacy below).

Illegitimacy
Where DNA evidence indicates that a child may be illegitimate, the ECO should try to establish the truth of the family circumstances by interviewing the child's mother as discreetly and sensitively as possible. Referring the case to the Home Office to interview the sponsor should be avoided. If no information can be elicited from the mother, the best way forward may be to seek information from the sponsor's representatives (depending on whether they are known to the ECO to be willing to respect the confidence of all parties).

If it appears that an illegitimate child has been brought up as a child of the family, it will normally be appropriate to admit the child under Paragraph 297(i)(f). The fact that the sponsor may not be aware that the child is not his natural child should not preclude entry clearance.

The ECO should not routinely disclose information about the DNA report to the sponsor or other family members in cases involving illegitimate children. However, under the Data Protection Act, applicants and sponsors have a right to see personal information about themselves, which we may hold. If the sponsor requests a copy of the DNA report then he/she should be asked to submit the request in writing with proof of identity, normally a copy of his/her passport. If the results also relate to a family member over the age of 18 then their consent to release the information will also be required. Copies of the report should not be given to other family members who have not been tested.

Statistics
Posts should keep records of all cases where a DNA test is offered. UK Border Agency, Visa Services Directorate require statistics which should be included in the annual statistical return from all Posts.

14.22 - Inter-country surrogacy arrangements
How to treat applications to bring children into the United Kingdom, born abroad as a result of surrogacy arrangements between a commissioning "parent" or "parents" in the UK and a foreign surrogate mother.

All cases involving inter-country surrogacy, other than those where the child automaticallygains British citizenship, will need to be referred to Managed Migration for decision.

In general, surrogacy cases where the Immigration Rules are not met, so long as the commissioning couple undertake to apply for a Parental Order under the Human Fertilisationand Embryology Act (HFEA) and appear to meet all the relevant requirements, senior caseworkers in Managed Migration will be able to authorise entry clearance outside of the Rules for limited leaveof 12 months. The commissioning couple can then enter the UK with the child and apply for a Parental Order, after which they may apply for ILR in country.

In cases where a commissioning parent meets the definition of a parent in the Rules and can sponsor the entry of the child, senior caseworkers in Managed Migration and entry clearance officers are able to authorise ILE. In all other surrogacy scenarios, cases will need to be decided at a senior level and this will be dealt with by Managed Migration Chief or Senior caseworker. Cases will also need to be dealt with in this way where they are likely to attract particular media attention, or raise difficult issues.

To date, the immigration aspects of each inter-country surrogacy case has been viewed on its own merits. Increasing interest in surrogacy is leading to more cases. The numbers of inter-country cases will always be small, but they consistently attract publicity, and any delays attract criticism. It is therefore advisable that Posts notify Managed Migration chief caseworkers and MMSR via ECO Support in UK Border Agency, Visa Services Directorate as soon as they become aware of a potential surrogacy case.

The Human Fertilisation and Embryology Act, (HFEA), sets out the legal position of surrogacy in the UK and our decision need to be in harmony with it. Different countries have conflicting legislation governing surrogacy and there are no international agreements covering this and we are unaware that any are planned. There is currently no provision for surrogacy within the Immigration Rules and any Rule which sought to provide for all the possible permutations or surrogacy arrangements would be long and very complex.

Handling/Level of controversy
Any perceived delay or lack of consistency in how we deal with surrogacy cases is likely to gain adverse publicity and such cases are already likely to be in the public domain. The most likely reason for disputes is where the HFEA is in conflict with the surrogacy law in the other country concerned, and commissioning couples become confused as to what they are required to do in order to bring the child to the UK. We should therefore seek to advise commissioning couples of UK requirements and MMSR have a surrogacy briefing which is sent to any post abroad as soon as they advise us of the possibility of a surrogacy case.