UK nationality law is highly complex and each potential application for registration of a minor as a British citizen requires thorough consideration of the child’s and their parents’ current nationality status and immigration history.
As explained below, your child may already be a British citizen without you realising it. In which case, your child does not need to register as a British citizen and can apply to the British Passport Office for their first British passport.
Automatic Acquisition of British Citizenship
There are two ways that a child can automatically be a British citizen: by ‘descent’ and ‘otherwise than by descent’. If your child was born in the UK and at the time of their birth either of the parents were British citizens or settled in the UK (meaning that they had indefinite leave to enter or remain, permanent residence or were EEA citizens), your child was automatically born a British citizen otherwise than by descent and there is no need to apply for registration.
Similarly, if your child was not born in the UK but either parent was a British citizen otherwise than by descent before the child was born (i.e. they were born in the UK or have registered or naturalised as a British citizen), your child was automatically born a British citizen by descent.
Acquisition of British Citizenship by ‘Entitlement’ and ‘Discretion’
If your child was not born British, they may be entitled to registration through birth or by satisfying the criteria for registration at discretion. An application to the Home Office for registration as a British citizen is required under these circumstances. There are a number of provisions under the British Nationality Act 1981 (BNA 1981), pursuant to which your child would have the right to become British. For example, if your child was born in the UK and either parent became settled or a British citizen whilst the child was still under 18, they would have the right to registration.
Furthermore, if your child was neither born British nor has any entitlement under the BNA 1981, the Home Office has the discretion to register your child, provided that they meet the criteria for discretionary application for registration. The Home Office will usually register your child if they and both parents live in the UK, have indefinite leave to enter or remain or EEA permanent residence and at least one parent is also applying to become British or is already British with the other parent unlikely to leave the UK, i.e. is settled in the UK, and where the Home Office is satisfied that your child’s future lies in the UK.
It is important to note that even if your child is not British at birth, has no entitlement to registration under the BNA 1981 and does not meet the usual discretionary application requirements, the Home Office has a wide discretion to register any child where the case is exceptionally compelling or compassionate. Such applications are particularly complex and in the majority of cases will require detailed documentary evidence to be submitted in support of the application.
The information set out above does not cover all circumstances in which a child may become a British citizen. Please contact Gherson for further expert advice.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2018