A recent change in UK law could have major ramifications on European families who wish to bring home children adopted in Muslim countries abroad.
UK law has changed the definition of who counts as a ‘family member of an EEA national’, which aims to bring about clarity of the status of chilren born in kafala arrangements i.e. permanent legal guardianship system in place operating in Muslim cuntries where full adoption is not allowed.
The Immigration (European Economic Area) Regulations 2016, amendment which came into effect as of yesterday ( 15 August 2019,) explicitly recognises relationships where the child is under 18 and “is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted”.
The implications of this are that the EEA citizens living in the UK, who enter kafala adoption overseas can now apply for visas to bring their children home.
What does this mean for the future?
While this change in the law is currently welcomed and at presents positive prospects, this could be short lived by as early as the 31st October 2019 should the UK leave the European Union with a ‘no deal’. A ‘no deal’ brexit would leave the Settlement scheme for EEA citizens and family members which would present problems for children in kafala arrangements.
At present, the Scheme only recognises guardianship orders made in the UK, Guernsey, Jersey or the Isle of Man. In such cases, children are to be treated as “direct descendants”. No parallel provision exists for legal guardianship orders made overseas, meaning children in kafala arrangements will not be treated as the EEA citizen.
Currently, the EU Settlement Scheme recognises guardianship orders made in the UK Guernsey, Jersey or the Isle of Man only. There is no current legislation in place for legal guardianship orders made overseas, which means that children in kafala arrangements will not be treated as the EEA citizen’s “child”.
In the worst instance , in the case of a non deal brexit, if the child cannot come as the direct family member of a child they can at least wait until the EEA national has acquired settled status (permanent residency) in the UK after 5 years.