Barry O’Leary

Law Commission Report on Surrogacy Law Reform

30th March 2023 By Barry O’Leary

On 29 March 2023, the Law Commission published its proposals for surrogacy law reform in the UK. This followed their research and discussions going back to 2018. I was involved in those discussions on behalf of the Law Society. I know that the Law Commission were committed to hearing responses from many different viewpoints and balancing those responses. They took their responsibilities very seriously.

While the Law Commission’s proposals are a positive step for those who are able to arrange a surrogacy in the UK, they are more limited for those who enter into international surrogacy arrangements.

The Law Commission have proposed a new pathway which would replace the current parental orders, but international surrogacy arrangements would be excluded from that pathway and parental orders would still need to be obtained. On the positive side, the Law Commission has proposed:

Improvements to the speed and efficiency of existing nationality and immigration processes;
An amendment to British nationality law so that more children would be born automatically British;
The introduction of clearer guidance;
Updating the current ‘outside the rules’ visa policy and bringing it within the Immigration Rules.

It should be stressed that these are just proposals and it is up to the government to decide whether to adopt any or all of the Law Commission’s recommendations. We await a response from the government.

For now, we continue as before and we are, of course, happy to advise on any immigration nationality issues relating to international surrogacy agreements.

50+ Years A Gay Man: A Personal Life in A Historical Context – an essay by Wesley Gryk

7th July 2022 By Barry O’Leary

For Pride month, the US Presidential Scholars Foundation & Alumni Association project ‘Scholar Perspectives on Societal Change: Sexuality, Gender, and Identity’ published an essay by our founder, Wesley Gryk. In that essay, Wesley recounts his very personal experience of being a gay man during more than half a century of what have been unprecedented historical positive changes in societal attitudes in some parts of the world. He cautions that the impact of such changes may often depend on the personal circumstances of the individual concerned and, in particular, warns against complacency, given that large swathes of the globe remain unaffected by such progress and, further, that such progress which has been achieved could easily be erased.

Read the essay here:

Wesley Gryk 2022 — Presidential Scholars Foundation

Updates to the Youth Mobility Scheme – but Indian Citizens will need to be patient.

20th January 2022 By Barry O’Leary

Updates to the Youth Mobility Scheme

This month, UK Visas & Immigration has updated its guidance to caseworkers on the Youth Mobility Scheme.

The guidance has been updated to reflect the addition of Iceland and India to the scheme from 1 January 2022.

The guidance now states that an applicant must be one of the following:

• a British Overseas Citizen, British Overseas Territories Citizen or British National (Overseas) as defined by the British Nationality Act 1981

• a national or citizen of a country or the holder of a passport issued by a territory, listed in Appendix Youth Mobility Scheme: eligible nationals. The countries and territories listed in Appendix Youth Mobility Scheme: eligible nationals of the Immigration Rules are:

• Australia
• Canada
• Hong Kong
• Iceland
• India
• Japan
• Monaco
• New Zealand
• Republic of Korea
• San Marino
• Taiwan Page

However, potential Indian citizen applicants are going to have to be a little patient, the first Indian ballot has not yet been announced and the general guidance to applicants states:

India Young Professionals Scheme

Do not use this page to enter the ballot for the India Young Professionals Scheme. The ballot for Indian nationals is not open yet.

No date for the ballot has yet been given.

When the scheme does open, Indian Citizens will need to be aware that there are 3000 visas available per year (relatively few given the size of population) and Indian Citizens need to meet an extra requirement based on qualifications or work experience.

Coronavirus Covid-19 Crisis and International Surrogacy Arrangements

26th March 2020 By Barry O’Leary

We frequently assist parents with the immigration and nationality matters which arise when children are born following international surrogacy arrangements.

We are aware that the coronavirus covid-19 crisis is causing difficulties for parents whose children are born overseas to surrogate mothers.

We have, with our friends at NGA Law, raised this matter with the Home Secretary. The Home Office have been in contact with us to look to find solutions for children who are born British and those who need to register as British Citizens.

I will update when I have further information but you are welcome to contact me on barry@gryklaw.com

Barry O’Leary is the author of the ‘International Surrogacy and British Nationality and Immigration Law chapter in “Surrogacy: Law, Practice and Policy in England and Wales.”

Described as “the Rolls-Royce of immigration and asylum,” Barry O’Leary is highly valued for his successes with family, partnership, international surrogacy and sexual identity cases. An interviewee says: “He’s a very experienced solicitor who does fantastic work across the board.” – Chambers 2020

“Barry O’Leary is experienced in applications based on partnership and family and in relation to international surrogacy arrangements, while he also handles asylum and human rights claims based on sexual identity.” – Legal 500 2020

International Surrogacy Arrangements & British Citizenship Registration Applications – A Positive Change in the Nationality Guidance

26th February 2020 By Barry O’Leary

We frequently assist parents with the immigration and nationality matters which arise when children are born following international surrogacy arrangements. The majority of our clients are British citizens, though we also assist parents of other nationalities and with differing immigration status.

With British citizen parents, the child is sometimes born a British citizen. This is the case where the surrogate mother is unmarried and (one of) the intended parent(s) is a British citizen “otherwise than by descent” and is the biological father of the child.

In other circumstances, the child is not born British and we frequently apply to register those children as British citizens under section 3(1) of the British Nationality Act 1981 (though there are other nationality and immigration law solutions available). These registration applications are discretionary but the Home Office will, in our experience, always register a child as British if the situation fits within the Home Office’s own guidance.

In the past, one source of frustration with the guidance was the requirements for registration applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. The guidance used to require an order from a court in the jurisdiction in which the child was born stating that the British citizen was treated in law as the child’s parent. The Home Office had confirmed that such orders needed to be issued post-birth. It was unclear how strict the Home Office were in applying this, but in order for parents bring themselves within the guidance, they needed to obtain such a post-birth order. This could delay matters and increase costs.

We had asked the Home Office on previous occasions to remove the requirement but it remained. Our most recent request, though, has met with success. The Home Office has now removed the requirement for a post-birth order in these cases. The guidance now states that the application needs to include: –

a legal document confirming that (s)he has been recognised as the child’s mother/father within the jurisdiction of the child’s birth, such as a court order or being named on the birth certificate and
evidence that the surrogate mother consented to the arrangement after the birth (this is not needed if a post-birth order has been obtained) – this should be dated at least 6 weeks after the birth

The guidance no longer requires a court order – a birth certificate is sufficient – and this is a welcome change.

The only negative to the new guidance is that the surrogate mother’s consent has to be signed after six weeks. This is the position when applying for parental orders through the Family Courts, but it has not been requested before in British Citizenship registration applications. However, the possible delay this could cause has been alleviated by the Home Office agreeing that such consents can be sent on later to be added to an application. Therefore, when applying on this basis, the application can be submitted as soon as it is ready and the six-week consent sent later.

We stress that this guidance relates to applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. There is no requirement for the consent to be signed after six weeks when registering on the basis of a British citizen biological father.

This may appear a small change but it will reduce the amount of time some parents need to remain abroad. Families are usually very keen to return to the UK as soon as possible so any reduction in delay is very welcome.

Barry O’Leary is the author of the ‘International Surrogacy and British Nationality and Immigration Law chapter in “Surrogacy: Law, Practice and Policy in England and Wales.”