UDI 2010-011 Family immigration for foster children

1. Introduction

This document provides guidelines for the assessment of permits for foster children, and the requirements for documentation of the foster child relationship in applications for residence permits pursuant to the Immigration Act Section 49; cf. the Immigration Regulations Section 9-7 first paragraph (c).

The guideline specifies what requirements are made of documentation in order for a foster child relationship to be able to form the basis for family immigration.

By ‘foster child’ is meant a child under the age of 18 who applies for family immigration with care persons other than their own biological parents. Foster children must be distinguished from children who have been formally adopted; see UDI 2010-002 concerning permits for foreign adopted children.

2. General information about foster child relationships

When applications are considered pursuant to the Immigration Regulations Section 9-7 first paragraph (c), the child’s identity must be known. Information must also be available about who the child’s biological parents or care persons are, and whether the child’s parents/guardians are alive. The immigration authorities must also know who has exercised parental responsibility for the child in his/her home country. This information must be available before granting a permit pursuant to this provision can be considered. If the immigration authorities do not have sufficient information about this, there will be a risk that a child is unlawfully removed from his/her biological parents/care persons and his/her home country.

2.1. The sources of law

Pursuant to the Immigration Regulations Section 9-7 first paragraph (c), it must be ‘substantiated’ that the conditions for being granted a permit are met. The requirements for substantiating that a child is a foster child pursuant to the Immigration Regulations are stringent. The objective is to prevent children from being separated from their real parents. This is in keeping with the UN Convention on the Rights of the Child, which states that the best interests of the child shall take precedence in all official decisions. Article 7 of the Convention states that ‘the child... as far as possible’ has the right to ‘know and be cared for by his or her parents’. Article 9 states that the state parties shall ‘ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.’

Article 11 of the Convention states that the parties ‘shall take measures to combat the illicit transfer and non-return of children abroad’. International commitments therefore indicate that strict requirements must be made in relation to substantiating a foster child relationship before a permit can be granted.

This provision is a continuation of the corresponding provision in the previous Immigration Regulations of 21 December 1990 (Section 24 first paragraph (f)). The preparatory works to the Act on which these Regulations are based provide the following guidelines; see Proposition No 46 (1986–87) to the Odelsting, page 63:

‘Even if a formal adoption relationship does not exist, children who are cared for by others than their parents should in many cases be granted residence permits together with the person acting in the child’s parents’ stead. There are many different unregulated relationships of this kind, and, unfortunately, there will often be doubt concerning the evidence. The immigration authorities must be able to demand that it be fairly well substantiated that the child for natural reasons is an established member of the household (-)’. It also states that: ‘(-) Apart from the humanitarian aspect, children’s legal rights must also be born in mind. If an adoption has not taken place, endeavours must be made to substantiate that the people caring for the child exercise legal parental responsibility for the child in relation to the legislation of their home country.’

In other words, there must be no doubt that the child is a genuine foster child. The preparatory works require that a strict assessment is made of the evidence.

In accordance with long and established practice, relatively strict requirements are made of the notoriety of the foster child’s situation in order for a residence permit to be granted pursuant to the mentioned provision. Not least with respect to the child’s best interest, it is important that the authorities have done everything possible to clarify the facts in each case, before granting a residence permit for family immigration with others than the biological parents. In general, consideration should also be given to the possibility that the best interests of the child do not necessarily correlate with the interests of the adults who wish to bring the child to Norway. Irrespective of this, the best interests of the child must always be the key factor, and the conditions in this provision must be understood and applied on this basis.

Whether a foster child relationship can be established, and how this takes place, will depend on the legislation of the individual countries.

The foster child provision cannot be used in relation to nationals of countries that do not recognize foster child relationships or the transfer of parental responsibility.

3. Documentation requirement pursuant to the Immigration Regulations section 9-7 first paragraph (c)

The foster child relationship must be documented by the authorities in the child’s home country. The documents must be issued by a competent authority.

In principle, the documentation should state when the foster child relationship was established, the background for the transfer of care and whether the relationship is of a permanent nature. Information must be provided about whether parental responsibility has been transferred to the foster parents or whether the biological parents have parental responsibility and the foster parents only have daily care and control.

Information must also be provided about who the child’s biological parents are, and whether they are alive. If the parents are alive, it should be stated whether the child has contact with them. If the parents are dead, documentation of this must be presented.

Information should also be provided about the rest of the child’s biological family in his/her home country, and whether the child has contact with his/her family.

If the child is biologically related to the foster parents, information must be provided to this effect.

4. Foster relationships that cannot be documented

It is difficult for some groups of applications to present documentation of foster child relationships. This may be because there are no authorities that can issue documentation, that the issued documentation does not meet the immigration authorities’ credibility requirements, or that the foster child relationship is not recognised as a legal institution in the home country.

Without documentation from the home country’s authorities, a foster child relationship cannot be deemed to be established pursuant to the Immigration Regulations Section 9-7 first paragraph (c).

When the application does not meet the formal requirements set out in the Immigration Regulations Section 9-7 first paragraph (c), an assessment must always be made of whether sufficiently strong humanitarian considerations indicate that a permit can be granted pursuant to the Immigration Act Section 49 first paragraph.

5. More information about the assessment of the Immigration Act Section 49 first paragraph

It follows from the Immigration Act Section 49 first paragraph that if ‘strong humanitarian considerations’ so indicate, a permit can be granted to other family members than those mentioned in Sections 40 to 53. The possibility of granting a permit on the basis of strong humanitarian considerations pursuant to the Immigration Act Section 49 first paragraph is not, however, intended to apply to everyone who almost meets the requirements for family immigration pursuant to Sections 40 to 53 of the Act, but is intended to address exceptional cases.

The assessment of foster child relationships that cannot be documented pursuant to the Immigration Act Section 49 first paragraph is not meant to extend the group of family members who can be granted a permit for family immigration. The provision is intended to address situations where a rejection on the grounds that the formal requirements in the Immigration Regulations Section 9-7 first paragraph (c) are not met, would be clearly unreasonable.

The point of departure must clearly be that caution is shown when granting permits to children for family immigration with people other than the child’s biological parents.

In this assessment, consideration must also be given to the formal requirements set out in the Immigration Regulations Section 9-7 first paragraph (c). Reference is made to the fact that, in addition to regulating immigration, the requirements are intended to protect the child. In the assessment, the various sources of law mentioned under point 2.1 must also be taken into consideration. This means that strict substantiation requirements apply.

A permit cannot be granted unless it has been clearly substantiated that the case concerns a foster-child-like relationship, and that the child has no other care persons. The reason for the strict assessment is that there is otherwise a risk of separating the child from its biological parents or other care persons. Reference is made to the fact that there is uncertainty in many cases about the child’s identity, the child’s biological parents, the child’s relationship to the foster parents, the child’s care situation and the rest of the child’s family in his/her home country. In some cases, the Directorate of Immigration (UDI) has experienced attempts to cover up the child’s real background with a view to securing the child’s future in Norway or another European country. Nor can it be ruled out that some people want to exploit these children.

That the home country’s authorities cannot confirm that a genuine foster child relationship exists in which parental responsibility has been transferred is a factor that indicates that a permit should not be granted.

The following factors must also be taken into account:

• If the child has biological parents or other close relations in his/her home country, this will be a weighty argument against granting a permit.
  
  
• As a general rule, the foster relationship must have been established before the reference person entered the realm and before the application process started.
  
  
• It must be substantiated that the people who claim to be the child’s foster parents have cared for the child, rather than it being cared for by other relations.
  
  
• If the child has established a relationship with new care persons, this may be an argument against granting the child a permit. In a situation like this, the duration of the new care situation must be taken into consideration, and how the new care persons are related to the applicant.

A concrete overall assessment must always be made in each individual case.

If the relationship is deemed to have been sufficiently substantiated, and strong humanitarian considerations are found to exist that indicate that the application should be granted pursuant to the Immigration Act Section 49 first paragraph, the case must be submitted to the Norwegian child welfare authorities. As a rule, the reference person must submit confirmation from the child welfare authorities that the foster home has been approved before a permit can be granted.

6. Foster care in relation to adoption

If it becomes clear that the applicant has in actual fact been adopted, the application shall be considered pursuant to the rules for granting permits to adopted children; see UDI 2010-002.

If a valid adoption has taken place pursuant to foreign legislation that will be recognised in Norway before the reference person was settled in Norway, the applicant is considered to be the reference person’s child and the application will be considered pursuant to the same rules as for biological children; see the Immigration Act Section 42 first and second paragraphs. If the case concerns a planned adoption, i.e. children that are in the process of being adopted pursuant to foreign legislation or will be adopted pursuant to Norwegian legislation, the application will be considered pursuant to the Immigration Act Section 42 third paragraph. It is a condition for granting a permit pursuant to this provision that the Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) has consented to the adoption before the child enters Norway.

Caution should be exercised in granting a permit pursuant to the Immigration Regulations Section 9-7 first paragraph (c) or the Immigration Act Section 49 first paragraph on the basis of strong humanitarian considerations, if the conditions for granting a permit to an adopted child have not been met because the adoption has not been approved by Bufdir. The provision relating to foster children cannot be applied such that foster parents who are not granted an adoption licence can bypass this by bringing the child to Norway as a foster child. In this assessment, the reasons why the adoption was not approved must be taken into consideration. See also UDI 2010-002 for more detailed guidelines for the assessment of permits pursuant to the Immigration Act Section 49 first paragraph when an adoption has not been approved by the Norwegian adoption authorities.