Children born in the UK or brought to the UK at a young age may feel British – they do not have any other home, they do not know any other life, English is their mother tongue, and they have only remote links with the country (or countries!) of origin of their parents. Yet, there is an acutely growing problem, particularly sore in the times of Brexit, in that not all British children are British.
In this case we represented two teenage sisters, dual citizens of Spain and France, in their applications for registration. One of them had the right to be registered, the other could only be registered at the discretion of the Secretary of State. It took nearly two years of fighting with the Home Office and preparation to go to court before the Secretary of State conceded her position and the child was finally granted citizenship.
Children born in the UK have the right to be registered as British citizens when one of the parents becomes settled (meaning acquires permanent right of residence or is granted indefinite leave to remain). Independently of the immigration status of the parents, children born in the UK can be registered as British citizens if they live in the UK for the first ten years of their lives. They can be registered as of right and at any time, even after they reach adulthood, provided they can prove that the first ten years of their life was spent in the UK.
Those who were born outside the UK can only be registered at the discretion of the Secretary of State. What is important to remember, both for the Secretary of State and for the parents of the children applying for registration, is that discretion is not an arbitrary power to be kind or cruel. It is guarded by a policy statement outlining relevant considerations and a statutory duty of the authorities to give the best interests of the children primary (if not paramount) consideration.
One of the central questions in the exercise of discretion is whether the future of the child lies in the UK. Of course, even the omniscient Secretary of State can only guess what the future has in store for us. Therefore, the future is assessed with reference to the past and also with reference to the circumstances of the child’s parents. It is assumed that those who hold temporary leave to remain will return to their home country, even if they have a legitimate expectation to be in a position to apply for indefinite leave to remain in due course.
Migrants settled in the UK and applying for naturalisation would normally apply for registration of their children at the same time. The can also apply for registration of the kids at a later stage. A more problematic scenario is where the parents have no wish to become British – they hold indefinite leave to remain and do not need a British passport.
We were dealing with a case where one of the parents was Spanish and the other French. They came to the UK with their baby daughter nearly fourteen years ago and have lived and worked in the UK ever since. Their younger child was born in the UK three years after they arrived. We were instructed to apply for registration of both girls, the younger, 11 years of age, born in the UK, the older at 14, brought to the UK as an infant.
Surprisingly, the Home Office refused to address the best interests of the child or the core question of the child’s future in the UK. They registered the younger girl and refused the application of the 14-year-old. The refusal letter stated: “Normally, minors will not be registered if, as appears in this case, neither parent is a British citizen. The application has nevertheless, been carefully considered to see whether there were sufficient grounds for treating it exceptionally. However, sufficient grounds could not be found to exercise discretion in this case. The application has therefore been refused.”
The standard procedure for challenging inadequate decisions in nationality cases is an application for reconsideration. Unlike strict deadlines for appeals or applications for administrative review of immigration decisions, there is no time restrictions on applications for reconsideration of nationality related decisions. Yet, the Secretary of State cannot be taken to court in relation to her policy or refusal to exercise discretion until the full circle of reconsideration is completed.
On reconsideration, the Home Office stood their ground: “not sufficient ground for treating the case exceptionally”. Our response was to challenge this in court. We are delighted that the matter was resolved and the child now holds a British passport. Our message for other applicants is: the Home Office is often confused as to the basis for exercise of discretion. It is not “exceptionality” that has to be addressed, but the child’s best interests and the child’s most probable place of residence in the foreseeable future.