British Nationality for Children

Children applying for British Nationality can be done either through acquiring through automatically as set out in the British Nationality Act 1981, or lodging an application for registration. A child does not normally apply through a naturalization process, however, in an application for British Nationality, the date of application does matter.

Entitlement to British registration by a child

The British Nationality Act 1981 allows a child to become a British National in a number of ways. This is an application route by way of registration. The following will provide details of how a child can acquire British Nationality:

1. A child can acquire British Nationality if they were born in the UK and their parents have now become settled.

2. If a child was born in the UK, they have lived in the UK for continuously 10 years; he/she can apply for British nationality.

3. If a parent is a British citizen by descent, and the child was born outside of the UK, in some cases, an application for British nationality could also be applied through the registration process.

4. A child can also apply for other forms of British Nationality, for example, a British Subject status if they will become stateless or are stateless, depending on their connections to the UK.

5. Children born to parents who are serving in the HM Armed Forces will receive exemption depending on the parent’s circumstances.

6. If a child was born to a mother who was not married to a British father before 1^st July 2006, the child would have an entitlement to apply for British Nationality.

7. Children born to EEA national children will have an entitlement to become a British Citizen depending on the parent’s circumstances at the date of birth.

When considering lodging an application for registration, ICS Legal will check whether the application for British Nationality is required. A child may have acquired British Nationality automatically in line with the British Nationality Act 1981.

Children born in the UK & British Nationality Act 1981

Section 1 of the British Nationality Act 1981 allows a child to register as a British Citizen. It requires in summary for the following to be met by the person:

1. The child was born in the UK and is under the age of 18 years at the date of application.

2. Neither parents were not British or settled at the time of the child’s birth.

3. Following the child’s birth, either parent then became British or settled in the UK.

4. Must be a person of good character if the child is over 10 years of age and above.

Children born on or after 1^st July 2006 & British Nationality registration

If a child was born to a mother who was not married to the natural father prior to the 1^st of July 2006, an application can be made in line with the British Nationality Act 1981. The specified evidence is required to support the application.

Children or Adults to register as a British Citizen

A person who was born in the UK, has lived in the UK for a period of 10 years, meets the residency requirements, the absence rules, and is a person of good character can qualify to become a British Citizen. An application requires evidence to support the claim of residency throughout the 10 years of continuous periods.

The Home Office can apply forms of discretion when applying to register as a British National. Section 1(7) of the British Nationality Act 1981 permits discretion on absences.

Children born outside of the UK

When considering lodging an application to register a child who was born outside of the UK, checks should be made first whether the child can register as a British Citizen by descent.

In reference to an application based on Section 3(5) of the British Nationality Act 1981, a child was born outside of the UK, parents were British by descent, under the age of 18 years at the date the application was lodged, and meet the absence rules. Depending on the child’s birth, further requirements may need to be met, i.e. if the child was born before 1^st July 2006, all references to the parent refers to the mother only unless the mother marries the natural father to legitimatize the birth.

Discretionary applications for registration as a British Citizen

The Home Office does accept applications on a discretionary basis whereby the child is under the age of 10 years, a person of good character and it is in the best interest of the child to be registered as a British Citizen.

Whilst an application does not set out the definite rules, in most cases provides a legal framework and relevant factors will be taken into consideration at the date of application.

Children who are adopted by British parents

A child is allowed to register as a British Citizen if the overseas adoption is recognized by UK law. Section 1(5) of the British Nationality Act 1981, allows an application to be lodged however the adoption process must follow recognized laws as implemented by various policy laws, for example, “The Adoption (Recognition of Overseas Adoptions) Order 2013 and “The Hague Convention on inter country adoption”, are policies that are considered when deciding on a British Nationality application for a child.

In short, family law in the UK plays a crucial part in the consideration of a child acquiring British Nationality by descent. The adoption that has taken place must not be informal or temporary. Further that, under the law of the country where the adoption had taken place, the biological parent has legally terminated its relationship as a parent to the child & that the Home Office is satisfied that the relevant laws have been applied throughout the legal adoption process. Finally, the adoption must not be a process to facilitate by convenience in order for the child to simply enjoy the benefits of being a British Citizen. In all cases, the best interest of the child will always be given due consideration.

Registering a child in the UK through legal adoption 

Where a child is allowed lawful entry to the UK for the purposes of legal adoption to take place in the UK, the adoptive parents must follow the policy law as set out by the Immigration Act 1971.

An application under the Immigration Act 1971 must be lodged by the adoptive parents, satisfying the prescribed Immigration Rules in place at the date of application and all specified evidence must be lodged at the date of application to avoid the application being refused.

Registering a child to unmarried British Citizen parents

When the British Nationality Act 1981 was introduced, it did not permit unmarried fathers to pass on British Nationality through their children. However, this was changed when the new law was implemented under Section 50(9) of the Act.

The Nationality, Immigration and Asylum Act 2002 introduced Section 9, allowing an unmarried father to pass on their British Nationality to the child, provided that relevant evidence has been lodged.

The British Nationality Act 1981, further introduced Sections 4F to 4I which came into force on the 6^th of April 2015, allowing children born prior to 1^st July 2006, to allow them to become British Citizens. The Home Office will require a child to provide all relevant evidence which would include but not limited to paternity testing as an example of the required evidence to support the application.

The British Nationality (Proof of Paternity) Regulations 2006

This law came into effect on the 1^st of July 2006 and was further amended on the 10^th of September 2015. In short, the law was applicable to matters related to un-married fathers and confirming the paternity of the father. It is important to seek advice on this especially if a child was born post 10^th of September 2015.

Surrogate mothers and British Nationality Registration

This is a complex part of British Nationality Law, especially that in most cases, the commissioning couple will have no legal relationship to the child and may not be allowed to pass on British Nationalityto the child. However, a child may be allowed to apply for leave to remain under the Immigration Act 1971.

There may be instances whereby the commissioning father, who is biologically related to the child, may have an entitlement to register the child as a British Citizen.

Section 55 of the Borders, Nationality and Immigration Act 2009

Whenever an application is lodged for a child, Article 8 European Convention on Human Rights (ECHR) consideration will be given as this would impact a child’s both family and private life. The key element on a human rights matter is whether the Secretary of State can interfere with their rights.

The law extends to the consideration of the best interest of the child. As case laws continuously develop, frameworks to consider those are created. For example, the case of KO (Nigeria) and Others (Appellants) v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 summarises the framework on the best interest of children. In Zombies, supra at [10] Lord Hodge considered the interplay between the best interests of the child and Article 8 ECHR and identified seven principles.

We advise that you should take specialist legal advice on this and can speak to a member of our team on 0207 237 3388 or you can email us at info@icslegal.com. If you don’t have an email, use our online form by clicking here.

 Children registering whilst in care

Where the child is now being looked after by a local authority, an application to register the child as a British Citizen can be made. This is considered on a case by case basis looking at the best interest of the child. In some cases, the biological parents share the parental rights of the child in question however an application to register would be determined based on the circumstances in hand and obviously if the child’s parents are British citizens.