Understanding Discretionary Child British Citizenship Applications – UK visa news

In This Article

1. Introduction to Registering a Child as a British Citizen
2. Who Can Apply Under Section 3(1)?
3. Children Adopted Abroad by British Citizen Parents
4. Is Registration as a British Citizen in the Child’s Best Interests?
5. Children Applying in Line With Parents
6. Children With Settlement and Residence
7. Children Born to a Parent Who Had Renounced and Subsequently Resumed British Citizenship
8. Children Who Have Lived in the UK for More Than 10 Years
9. Any Other Child Born to British or Non-British Parents
10. Children Outside the UK at the Time of Their Application
11. Contact Our Immigration Barristers
12. Frequently Asked Questions
13. Glossary
14. Additional Resources

1. Introduction to Registering a Youngster as a British Citizen

Some youngsters who don’t routinely purchase British citizenship at beginning could also be registered as British underneath the British Nationality Act 1981. If a baby is just not entitled to register as a British citizen underneath the Act, they could make a discretionary software underneath section 3(1). This text discusses the necessities and expectations for profitable registration of a kid underneath the discretionary energy contained in part 3(1) of the Act, the conditions it applies to and the scope of software. 

2. Who Can Apply Underneath Part 3(1)?

Part 3(1) of the British Nationality Act 1981 grants the Secretary of State a discretionary energy of registration of a minor as a British citizen ‘if he thinks fit’, although it’s notable that we at present have a feminine Residence Secretary, and certainly have had a number of in latest many years, so this laws is evidently outdated. 

The one statutory necessities are that:

1. The kid is underneath 18 on the date of software;
2. If over the age of 10, the kid is of excellent character;
3. The Secretary of State thinks it ‘fit’ to register them.

Clearly, the availability itself may be very transient, which permits for a large scope of discretion. Purposes will be assessed on a case-by-case foundation, taking all related issues under consideration. Nonetheless, the Residence Workplace Steering sheds extra mild on how this discretion is exercised. 

The Steering supplies an inventory of conditions the place the Residence Workplace will usually register a baby. Frequent situations are thought of in flip. 

3. Youngsters Adopted Overseas by British Citizen Mother and father

To make an software for registration underneath part 3(1), the kid will need to have been adopted underneath one of many following prescribed procedures:

An software for registration the place the kid was adopted overseas in different circumstances will, based on the Residence Workplace Information, usually be refused. Nevertheless, since this can be a discretionary software, all instances shall be thought of on their deserves and bear in mind the kid’s greatest pursuits. 

Moreover, not less than one of many adoptive dad and mom have to be a British citizen ‘otherwise than by descent’ (akin to those that have acquired British citizenship by beginning within the UK, or who’ve naturalised or registered as a British citizen). 

All related adoption legal guidelines will need to have been adhered to. This covers the legal guidelines of the nation the place the adoption occurred, the kid’s nation of origin, and the nation the place the adoptive dad and mom are habitually resident. The Residence Workplace should even be glad that the adoption is just not considered one of comfort, organized for the aim of facilitating the kid’s admission to the UK. 

The place each dad and mom have parental responsibility, each dad and mom should give their consent for the kid to be registered. 

There should even be no motive to refuse the appliance on the idea of character grounds. That is solely engaged when the applicant is over the age of 10. In keeping with the Residence Workplace Steering, which means that ‘the child must observe UK laws and show respect for the rights and freedoms of its citizens.’ Subsequently, youngsters who’ve obtained felony convictions might fall foul of this, however different issues akin to cost of revenue tax and Nationwide Insurance coverage contributions are in fact a lot much less prone to apply to youngsters. 

4. Is Registration as a British Citizen within the Youngster’s Finest Pursuits?

One other vital a part of the evaluation is whether or not registration is demonstrably within the youngster’s greatest curiosity. The Residence Secretary is underneath an obligation contained in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the necessity to safeguard and promote the welfare of a kid within the UK. This, along with Article 4 of the UN Convention on the Rights of the Child, signifies that consideration of the kid’s greatest pursuits have to be a main consideration within the making of this determination.  Which means that even when some or all the above standards are usually not met, the appliance will nonetheless be thought of on its deserves, and the kid should be registered if registration is of their greatest pursuits. 

Nevertheless, because the software is discretionary, this will nonetheless imply that though the above necessities are all met, there could also be some motive why the kid shouldn’t be registered. The Residence Workplace Information says that critical doubts about an adoptive mother or father’s character or suitability to undertake a baby, or irregularities within the adoption process might trigger the Residence Secretary to refuse to register the kid.

5. Youngsters Making use of in Line With Mother and father

The Residence Workplace will usually train discretion to register a baby if one mother or father is a British citizen or about to develop into one by way of registration or naturalisation, and the opposite mother or father is a British citizen or settled within the UK. 

The kid will need to have been resident within the UK for not less than the final two years, though the Residence Workplace Steering does state that if the kid is youthful than 2 years outdated, they may take this under consideration and should settle for a shorter interval of residence.

The kid should even have indefinite go away to stay within the UK, their dad and mom give consent to registration, and there’s no motive to refuse the appliance on the grounds of character. 

6. Youngsters With Settlement and Residence

An software is prone to be accepted if the registering youngster has accomplished greater than 5 years of lawful residence, and has held settled standing within the UK for not less than 12 months. The kid’s dad and mom will need to have additionally accomplished the 5 yr residence interval and be settled within the UK. 

As above, each dad and mom should give their consent to the kid being registered, and there have to be no good causes to refuse on character grounds. 

7. Youngsters Born to a Dad or mum Who Had Renounced and Subsequently Resumed British Citizenship

A baby will come inside this class if a mother or father has renounced and subsequently resumed British citizenship, and in doing so grew to become British in any other case than by descent. The kid will need to have been born earlier than the date of resumption, and each dad and mom should give their consent to registration (until there are good causes offered to not require this). 

8. Youngsters Who Have Lived within the UK for Extra Than 10 Years

If the kid and their dad and mom are within the UK lawfully and have been dwelling right here for greater than 10 years, they may fall inside this class. Once more, each dad and mom should give their consent to registration (absent good causes), and there have to be no motive to refuse on character grounds. 

Lawful residence is predicted by the Residence Workplace given that granting citizenship to a baby dwelling within the UK unlawfully might undermine the immigration system. Nevertheless, there are some instances the place unlawfulness is out of the kid’s management, and so the Residence Workplace might grant an software the place there are distinctive causes to take action. This includes consideration of the next components:

• The age of the kid;
• Their connections with the UK;
• Their size of residence;
• Their specific circumstances.

Registration could also be extra applicable for older youngsters who’ve lived within the UK since they had been very younger and have demonstrated very robust private ties to the UK. Youthful youngsters are much less seemingly to achieve success, until exceptionally compelling circumstances are offered, on condition that they’re at a much less crucial level of their lives,  

9. Any Different Youngster Born to British or Non-British Mother and father

The steering acknowledges that it’s not possible to cowl all circumstances underneath which the Residence Secretary may train their discretion underneath part 3(1) to register a baby as British. Nevertheless, if a baby doesn’t fall into one of many classes particularly outlined within the steering, in contemplating every other software, the next factors shall be thought of:

• The kid’s connections with the UK;
• The kid’s immigration standing within the UK, significantly the place the kid’s proper to remain within the UK is restricted;
• The longer term intentions for the kid;
• The kid’s dad and mom’ circumstances, together with the views of the kid’s dad and mom;
• The nationality and immigration standing of the kid’s dad and mom. The Residence Workplace expects both each dad and mom to be British residents or one mother or father to be a British citizen and the opposite mother or father to have settlement within the UK;
• The kid’s good character;
• The size of time the kid has lived within the UK. The Residence Workplace expects not less than 2 years’ residence, and that is particularly the case for youngsters over the age of 13. That is thought of alongside different components akin to whether or not the kid is settled within the UK;
• Any compelling circumstances raised within the software.

The Residence Workplace have to be glad that the kid’s future clearly lies within the UK earlier than registering them underneath part 3(1). The place the kid is within the UK on the time of software and it’s said within the software that the kid’s future lies within the UK, that is usually accepted as true by default, until there’s something within the software that casts doubt on this. Examples of this are:

• The place the kid, or one or each of their dad and mom, has not too long ago left the UK for greater than 6 months;
• The kid is about to go away the UK;
• One or each dad and mom reside overseas.

10. Youngsters Outdoors the UK on the Time of Their Utility

For kids exterior the UK on the time of their software, an software will usually be refused until it falls underneath one other class talked about above,  or if both:

• The kid is overseas with a mother or father in Crown service such because the armed forces; or
• The kid had a longtime house within the UK earlier than going overseas they usually meet the residence standards, their absence is just not greater than 6 months, and the Residence Workplace is glad that the kid intends to return to reside within the UK inside 6 months of their departure.

Residence within the UK is predicted for a profitable registration software underneath part 3(1) as a result of that is in line with most different provisions in regards to the registration of kids, and confirms {that a} youngster’s future clearly lies within the UK. Furthermore, it permits the kid to ascertain their very own ties to the UK.

Nonetheless, it have to be identified that since this can be a discretionary software, the truth that youngsters fulfill some standards referred to doesn’t imply they are going to be registered if there are different standards that they don’t fulfill. This was thought of not too long ago by the Excessive Court docket and mentioned in our earlier article High Court Considers Discretionary Registration of Children as British Citizens.

For skilled recommendation and help on an software for discretionary registration of a kid as a British citizen, or any associated visa or immigration software, contact our immigration barristers on 0203 617 9173 or full our enquiry type beneath.