While British citizenship lawyers are often approached to discuss applications for naturalisation as a British citizen by adults, the British citizenship of under 18s is also a key issue. While many people assume that British citizenship is accorded automatically to children born in Britain, this is not the case. The reality depends on the status of the child’s parents – and as many immigration lawyers will explain, even this is not always straightforward. In this blog, our London immigration solicitors look at being ‘born British’ and what happens where the child’s mother does not have settled status in her own right, is married to someone without settled status, but has a child with a British citizen.
Being Born British
The British nationality Act 1981 is the ‘go to’ piece of legislation for top London immigration lawyers for matters concerning British citizenship, certainly as far as being born British is concerned. Crucially, section 1(1) British nationality Act makes it clear that in order to be ‘born British’ one of the child’s parents must also be a British citizen or be settled in the UK. This can cause problems for children born in Britain, neither of whose parents are British or have sufficiently secure Immigration status so as to be ‘settled’ in the UK, particularly when the parents have taken no steps to secure the nationality of the child with their country of origin.
What may not be so well known but is viewed as a great injustice by many of the best immigration solicitors in London is that the legislation itself takes a strict approach to parentage – in particular to who the ‘father’ of the child is, for British citizenship purposes, and this too can cause complications and needless heartache.
Who is the ‘father’ for British citizenship purposes?
The British nationality Act 1981 defines the ‘father’ of a child as the husband of the child’s mother – even if he is not the biological father of the child. This has come to light most recently in a story reported in some of the national newspapers about a 6-year-old boy refused back into the UK after travelling to Belgium and spending time there. Although his biological father is a British citizen, his mother, who does not have settled status, is still married to someone in Guinea. As a result, the child cannot be a British citizen. The biological father of a child can only pass on his British citizenship if either he is also married to the child’s mother, or the mother is not married either to him or to anyone else.
Of course, this approach to paternity contravenes Article 8 of the European Convention on Human Rights and has been held as being incompatible by the High Court in the case of K (A Child) v Secretary of State for the Home Department. Unfortunately, such a declaration does not automatically lead to a change in the law – the incompatible legislation remains valid until the law is changed by Parliament – and as immigration solicitors will be only too well aware, this has not yet happened.
Registration as a British citizen
The rules around being born British can cause difficulties for children who would otherwise be able to claim British citizenship through their biological father but are prevented from doing so by the terms of the British nationality Act because their mother (who does not have British citizenship or settled status) is married to someone else. The alternative route to British citizenship lies in being registered as a British citizen.
The Home Office has issued guidance covering a number of situations in which a child can be registered as a British citizen under the terms of the British nationality Act. It covers those born to British citizens living outside the UK, and those born in the UK and whose parents subsequently become British citizens or settled or children who have lived in the UK for the first 10 years of their life.
The British nationality Act also includes a discretionary power to register children as British citizens under section 3(1). The statutory requirements are that the child is
- Under 18
- Of good character, if over the age of 10; and
- that the Home Secretary thinks it fit to register them.
The guidance expands how the discretion should be exercised. In particular, it clarifies that where there is “…compelling evidence that someone other than the mother’s husband is the child's natural father…” that child should be registered as a British citizen under s.3(1) British nationality Act. Unless the biological father is named on the birth certificate, compelling evidence could include DNA testing or court orders.
Applying for registration as a British citizen under section 3(1)
The application for registration is not straightforward. It is a costly exercise – fees are £1,000 – and requires a complex application as well as the gathering of the necessary evidence. With so much at stake, getting it right may depend on engaging the best immigration lawyers available.
Leading immigration lawyers OTS Solicitors are recommended in the Legal 500 for Immigration law and will be able to assist you should you need to make an application for registration of a child as a British citizen – whatever the circumstances. Call us in confidence on 0203 959 9123 as find out how we can help.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
We are one of the UK’s top firms for immigration solicitors and civil liberties lawyers. We can advise on a broad range of Immigration issues including Appeals and Refusals, Judicial Reviews, Spouse Visas, Student Visas, Work Permit Visas, Indefinite Leave to Remain, EEA Applications, asylum and Human Rights, British citizenship, All types of visas, Business Immigration Visas, Entrepreneur Visas and Investor Visas.
Our top immigration solicitors and lawyers are here to assist you.
Disclaimer: The information and comments on this page/site is made available free of charge and for educational and information purposes only. The information and comments do not amount to and are not intended to be adopted as legal advice to any individual or company. The use of this site should not be a substitute for specific legal advice, which we ask you to see our contact page or call our solicitors on 0203 959 9123.
By using this site you understand that there is no solicitor and client relationship between you/your company and the site owners or the firm. We make every effort to keep the published articles up-to-date and accurate, however the law changes very rapidly and the older the articles on this site, the more likely that the views in it have changed with the development of the law.
Posted on: Friday, 14 September, 2018