UK Immigration & Nationality Lawyers

British citizenship, EU migrants and family members

Is my child British?Not every child born in the UK is a British citizen.

Those who were born in the in the UK before 1983 are British citizens by birth, and a British birth certificate showing the date of birth before 1 January 1983 is proof of British citizenship independently of the immigration status of the parents.

After 1 January 1983 nationality rules became more complex. In legal terms  jus soli (“right of land” which before this date determined citizenship) was largely taken over by, or partly mixed with, jus sanguinis (“right of blood”). In other words, it has become a combination of the legal status of the parents and the place of birth of the child that determines whether the child is British at birth.

All children born in the UK to a British parent (or British parents) are British citizens by birth (although there are some exceptions for those who were born before 1 July 2006 and whose parents were not married). Children born in the UK to migrants who have indefinite leave to remain or to EEA nationals with permanent right of residence are British by birth. And here we are entering into an area of unfathomable greyness.

What if the parent’s right of permanent residence is unconfirmed?

This scenario is certainly not uncommon. On the one hand, the document confirming permanent right of residence is not a prerequisite. You may have acquired permanent right of residence without ever thinking about it and you may not even realise that your child is born a British citizen. The easiest way to prove settled status of the parent on the date of the child’s birth is by a document confirming permanent right of residence and a letter stating the date on which it was attained. Although the document confirming permanent right of residence only shows issue date and does not show the date on which permanent residence was actually accrued, since a few months ago (summer 2016) the Home Office started to include this information in the covering letter and it is important to keep this letter as the date when permanent residence was accrued may be years before the document was issued.

Nevertheless, it should be remembered that permanent residence can be lost through absence from the UK for more than two years. So if the child is born more than two years after the parent’s permanent residence document was issued, to prove the child’s British citizenship at birth the parent will have to demonstrate that they were not out of the UK for two years since acquiring confirmation of permanent residence.

In practical terms, it is recommended that all children born to non British parents should have a document confirming their British nationality status. An application for this document can be made using form NS and the Home Office fee for issuing the document is £234 as of April 2017.

Is a British passport sufficient proof of nationality status?

British passport is a travel document issued to a British citizen. At the border control the immigration officers check that the passport is correctly issued, is not cancelled and is not reported lost or stolen. You will not be questioned about how you became British and when. However, an application for a new British passport has to be supported by evidence of entitlement to British citizenship and the evidential requirements become more and more onerous by the day. Producing a previous passport is no longer sufficient proof of entitlement and your child may be questioned in 30 years’ time about the basis for entitlement to British citizenship. Having official confirmation of British citizenship issued at a fee by the Nationality Directorate of the Home Office will potentially save any further questioning in the time to come.

Can British nationality status be reviewed

There is undeniably a very serious problem in the risk of the government reviewing British nationality status of those British born children of EU nationals who had been issued with British passports in the good old days with “no questions asked”.

I have seen families who complained that their first child born in the UK was issued with a British passport with no quibbles, whereas their child born a few years later would not be recognised as a British citizen by the passport office. Furthermore, the Home Office may not be convinced that the parents have actually acquired permanent right of residence after years and years of residence either because of breaks between employments, or due to insufficient earnings, or in the absence of a comprehensive medical insurance, or due to lack of evidence of looking for employment, and such other criteria which were virtually inexistent in the happier days of British membership in the EU.

In my view, it would be very unlikely that British nationality status would be reviewed without serious reasons for initiating a review where nationality was confirmed officially by the Nationality Directorate. It is more likely to be routinely reviewed as a matter of policy in the absence of this document in a similar way as British citizenship is now routinely reviewed in respect of those who had relied on their British overseas citizen’s status or citizens of former British colonies.

When can a child be registered as a British citizen?

A child born in the UK who is not British by birth can be registered as a British citizen as soon as one of the parents becomes settled (i.e. acquires permanent right of residence or indefinite leave to remain). A registration certificate is a document proving the holder is a British citizen. This document is to be retained for life and may be requested at any time when an application for a British passport is made.

EEA nationals acquire permanent right of residence in the UK once they have exercised their Treaty rights for a continuous period of five years and their children born in the UK are British citizens. Nevertheless, interpretation of who acquires the right to permanent residence has been shifting with every turn of the spiral in the Brexit campaign. Lack of clarity spills over to the nationality law.

Also, a child born in the UK can be registered by entitlement if the child has spent the first 10 years of his of her life in the UK and have not been out of the UK for more than 90 days in any one of those years. Registration on this basis can be done at any time even when the person is adult.

Registration of children born outside the UK

A child born outside the UK can be registered as a British citizen at the discretion of the Secretary of State. The most important criteria for exercise of discretion is that the child’s future lies in the UK. It is expected that at least one of the parents is becoming a British citizen at the same time or has already naturalised as a British citizen and the other parent is settled, although this should not be understood as a mandatory requirement. Children over the age of 13 are expected to have lived in the UK for at least two years prior to registration. For younger children residence requirement does not apply as long as their future is clearly seen to lie in the UK.

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