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 in that not all British children are British citizens.
We recently represented a family where two teenage girls, dual citizens of Spain and France, were to be registered as British citizens. One of them was born in the UK and could be registered as of right, the other was brought to the UK a few weeks after her birth and could only be registered at the discretion of the Secretary of State. It took nearly two years of fighting to persuade the Secretary of State that discretion had to be exercised.
Overview of the rules on registration of children
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.
Migrants settled in the UK and applying for naturalisation would normally apply for registration of their children at the same time. They 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.
How discretion is to be exercised?
It is expected that if the child’s future clearly lies in the UK, discretion is to be exercised in favour of registration. 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 present behaviour (such as long absences from the UK or education outside the UK). Consideration is also given 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.
Surprisingly, it is not uncommon for the Home Office to completely ignore what they describe in the policy guidance as “the most important criterion”.
In our case, the 11-year old girl born in the UK was registered and her 14-year-old sister was refused. It is worth quoting from the refusal letter: “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.”
How to challenge adverse nationality decisions
The standard procedure for challenging inadequate decisions in nationality cases is by requesting 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.
In our case, reconsideration was not the last step. The Home Office dug in their heels: “not sufficient ground for treating the case exceptionally”. The next step was to challenge this position in court. We started pre-action protocol, the Home Office received legal advice from their solicitors and, hooray! -the child now holds a British passport.
Our message to other applicants: the Home Office is often confused as to the basis for exercise of discretion. It is not matter of “exceptionality”, but the child’s best interests and the child’s most likely place of residence in the foreseeable future. Failure to register a child as a British citizen may affect their life as young adults, their education and their financial stability. Do not take this lightly!