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Clare
Clare, Solicitor
Category: UK Immigration Law
Satisfied Customers: 27689
Experience:  25 years hight street experience
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Settlement and ILR issues Hi, Reference to my wifes two

Resolved Question:

Settlement and ILR issues:
Hi,
Reference to my wife’s two children is “her children” purely to clarify facts but in all practical sense of things, they are our children.
Details:
On wife’s children’s passports (South African) visa states:
Type:VISA TO ACC MOTHER/CYR mother’s name
Observations: No recourse to public funds.
On wife’s passport (South African):
Type: VISA SETTLEMENT/CP (KOL REQ) my name
Observations: NO RECOURSE TO PUBLIC FUNDS
Number of dependents: 0

History:
My wife and I were married April 2000 in South Africa and have been living together since.
My wife has two children aged 14 and 17 when first entered the UK in August 2009.
I have supported my wife and children throughout the marriage.
In 2001, the surnames of her children were changed to my surname.
In May 2009 I officially adopted her children.
They have never known their fathers and see me as their only father and not step father.
Visas on my wife’s passport and the children expire Nov 2011.
We also have an eight year old daughter who has a British passport and is not affected by the current situation. All children are at schools/college in the UK now.
The adoptions were not in compliance with the Hague convention – this was an error made by the social worker handling the adoptions and cannot be changed now, this prevents the children from receiving British passports based on my citizenship, this is an issue I am also pursuing with the authorities.
In a nutshell, the move to England was a necessity for financial reasons and also an attempt to fix a broken marriage. Unfortunately, it did not help and the marriage is beyond repair.
My wife has an alcohol problem, is violent and abusive when drunk and is unreliable. I have full support of her children and they always choose to stay with me. My wife has since Aug 2009, left to return to South Africa twice and is about to leave again we think.
Questions: If my wife should leave the UK and/or not be granted ILR in the UK,
Will this affect her children’s right to remain in the UK?
How soon can her children apply for British citizenship?
Do I inform UKBA of the breakdown in the marriage and if so, is it likely that she will not be granted ILR despite having children here?
Can you assist with the issues of British citizenship through adoptions not in compliance with the Hague convention – from what I gather, only adoptions made from outside the country where the child is resident, can be processed in compliance. I was resident in the country of adoption and can see no other way I could have adopted them other than the national adoption procedure in South Africa.
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Clare replied 3 years ago.
Hi - Would the mother co=operate with an adoption application here in the UK? Claire
Customer: replied 3 years ago.

Hello Claire,

Not sure of the relevance of your response in that the eldest child is eighteen now and too old for adoption. She gave her consent in South Africa and whilst she is extremely unpredictable at the moment, I would hope she would cooperate. What stands out for me is that her visa states that she has no dependants but the children are referenced to her visa and she is referenced to me. The mother is repeating her actions of a year ago at the moment and is threatening me with violence and murder, in front of the children. It is clear that divorce is the only solution here but I really need to know how this will affect the immigration status of her children. Surely as their father for eleven years and officially adopted in South Africa which is on the UK's list of Hague Compliant countries, the fact that they would not be financially supported by the goverment in South Africa would be enough grounds to proceed with their ILR regardless of their mother's failings?

Expert:  Clare replied 3 years ago.
Hi. My apologies I misread that point. So far as the younger child is concerned I would suggest that you start adoption proceedings as soon as is practicable as this will be the greatest protection. The position of the older child is of much more concern as she is of course an adult, and technically the dependent of her mother rather than of you notwithstanding your clear attachment and link to her. I do not understand why the adoption did not satisfy the Hague Convention - as it does cover adoptions by UK nationals resident in the country of the adoption and there should have been no problem but if it did not then you cannot rely on the fact that you have been her father for the last decade. As things stand if you do not support your wife's eventual application for ILR (and notifying the border agency of the state of your marriage would immediately make her receiving ILR unlikely) then the children will not receive ILR as they are linked with her - and the Border Agency would point ourt that she would be the one to support them if they all return to South Africa. However applications could then be made for student Visa's to allow them to complete their educations here (supported by you) and after theyu had been here for 5 years they can apply for Citizenship. Claire
Customer: replied 3 years ago.

Thanks for your answer. It has made me realise another point and that being what would the situation be if my wife passed away, (not that I have any ill intentions here), would the children's visas then have reference to me?

 

How and where can I pursue the compliance of the existing adoption papers in the UK.

The social worker in Cape Town refered me to the registrar in Pretoria who has informed me that she cannot change the papers. I still am at a loss as to how I could have gone about this differently. It states somewhere that one must not adopt a child in order to gain entry to the UK. The only reason why we adopt or get married is to have some form of official proof ot the action / situation / relationship otherwise for all practical reasons, it makes no difference. Of course I adopted the children before coming to the UK for the very reason that is now being disputed. Their adoption papers do not fulfill the requirements for applying for a British passport but does that also mean that they cannot apply for ILR with reference to me as their adopted father and then later apply for British citizenship?

Expert:  Clare replied 3 years ago.
Hi - Can we go back to basics. The children were fully legally adopted in South Africa - an din South Africa they are regarded as your children. Why then have you been told that it will not be recognised here in the UK and who has told you this? Claire
Customer: replied 3 years ago.

Hi Claire, I was told by the UK passport office when I applied for a British passport for the eldest child. They referred me to the UKBA.

Perhaps there are two issues here.

1), that the adoption is not recognised as being compliant with the Hague Convention for the purpose of obtaining a British passport.

2) the adoption may be recognised by the UKBA as being legal in SA and perhaps enough to allow them to stay and apply for ILR as my dependants - I don't know.

This is why I am asking for advice on who to approach.

I remember the passport office mentioning that one can make a special application at an office in the north west, somewhere near LIverpool I think. I would have to state all the facts and circumstances, the importance of keeping the three children together, the eldest often plays the role of mother to our youngest (eight year old).

I also remember talking to the UKBA and being told that because I was resident in South Africa at the time of the adoption, the children would not have claim to British citizenship.

If I knew that it would solve the problem, I would see and immigration lawyer about all this. I used one in South Africa back in 1997 after being misled by the SA Home Affairs, the lawyer actually saved me money in the end.

As for documents, I have the court orders that were issued at the magistrates courts and also newer letters of adoption issued by the registrar in Pretoria.

 

 

Expert:  Clare replied 3 years ago.
Hi - Why - specifically - did the Border Agency say that the Adoption was not valid? Was it because you were held to be still domiciled or habitually resident in the uk? Claire

Edited by claire on 1/18/2011 at 12:21 PM EST
Customer: replied 3 years ago.

Hi Claire,

As I think I mentioned, the application for her passport at the UK Passport Office failed as the adoption papers were not Hague Convention certified, they refered me to the UK Border Agency who would not process citizenship or ILR applications based on adoption relationship. I am not sure if they actaully said they the adoption was not valid.

As I have also said, I don't see any other way I could have done this whilst I was permanently resident in South Africa. I am in a terrible dilemma in that should the ILR application of my wife or the two children the family will be torn apart.

As they are my legally adopted children by an actual Common Wealth member state, surely that should overide the ILR process as they were both under 18 when the visa were applied for and when they first entered the UK in Aug 2009?

 

Customer: replied 3 years ago.

Hi again,

 

Would it help for you to read a copy of the letter received from the registrar of Adoptions in Pretoria and if so, how do I send it to you?

Expert:  Clare replied 3 years ago.
Hi - Could you just cut and paste the relevant paragraph - in the end I think that it is in resolving the adoption issue that you will protect the children. Claire
Customer: replied 3 years ago.

Hi, attached is the paragraph, this is from the letter I received from the registrar after I asked for additional proof other than the actual adoption papers:

 

"The adoption was done in accordance with the Child Care Act 74 of 1983, as amended, which was in force by then. It was done as a national adoption since the adoptive parent, the adoptee and his mother resided in South Africa at that time, when the adoption was finalised. This adoption is not an intercountry adoption and it was not facilitated in terms of the Hague Convention on Intercountry adoptions in respect of this case.

According to the Children's Act:

An adopted child shall for all purposes whatever is deemed in law to be the legitimate child of the adoptive parent, as if he was born of that parent during the existence of a lawful marriage.

The adoption of xxxxxxxxxxx born on 01 June 1992 comply with all the expectations of the South African Child Care Act No. 74 of 1983."

Expert:  Clare replied 3 years ago.
Hi - I think there has been some confusion here. It was not an inter country adoption because your were not habitually resident in the UK at the time. It was a foreign adoption that falls to be recognised under the Hague Convention as being fully valid and entitling your children (all three of them) to a British passport - and you should notify the Border Agency accordingly. If that fails then this case http://www.familylawweek.co.uk/site.aspx?i=ed1125 can be used as a precedent for a court application Claire
Clare, Solicitor
Satisfied Customers: 27689
Experience: 25 years hight street experience
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