British nationality law is extremely complex. Children who are born outside the UK will only acquire British citizenship from their parents in certain circumstances. Those who do not may be able to register as a British citizen.
If a child born outside the UK is not automatically a British citizen when they are born, it may be possible to register them as a British citizen. Section 3 of the British Nationality Act 1981 sets out the circumstances when this may be possible.
Registration as a British citizen under section 3(5) of the British Nationality Act
For children born outside of the UK, consideration should first be given to whether they have an entitlement (i.e. a legal right) to register as British under section 3(5) of the British Nationality Act 1981.
It is possible for a child under the age of 18 to register as a British citizen on the basis of section 3(5), providing that the following requirements are met:
- they were born outside of the UK;
- at the time of their birth they had a parent who was a British citizen by descent;
- the child’s mother and father must have lived in the UK for a three-year period ending on the date that the application is received by the Home Office;
- the child must also have lived in the UK for the same three-year period;
- the child and their parents must not have been absent from the UK for more than 270 days during the three-year residence period;
- the consent of both parents is given to the application; and
- if aged ten years or older, the child is of good character.
No discretion is applied to the 270 day absence limit in the three years leading up to the date of the application.
It is important to note that this section applies solely to ‘legitimated children’. Meaning that if the child was born before 1 July 2006, and their parents were not married at the time, the child may only rely on their mother’s citizenship, unless their parents subsequently married. For those children born on or after 1 July 2006 the father will be relevant to the application, regardless of whether they are or have been married to the child’s mother, so long as he satisfies the definition of father.
For British nationality purposes, the following meet the definition of father:
- the mother’s husband, if any, at the time of the child’s birth;
- any person who is treated as the father under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008;
- a person who is treated as a parent of the child under section 42 or section 43 of the Human Fertilisation and Embryology Act 2008 (second female parent);
- if none of the above applies, a man who can be proved to be the father by the production of either:
- a birth certificate identifying him as such, issued within 12 months of the birth of the child (where the birth was registered before 10 September 2015)
- other evidence, such as a DNA test report, court order or birth certificate that demonstrates paternity
If a child has an entitlement under this section, they will obtain British citizenship otherwise than by descent.
Registration under section 3(2) of the British Nationality Act
Under section 3(2) of the British Nationality Act, a child, under the age of 18 on the date of application, can apply to register as a British citizen, providing that the following requirements are met:
- they were born outside of the UK;
- the mother or father of the parent in question (the child’s grandparent) became or but for their death would have become, a British citizen otherwise than by descent either on 1 January 1983 or at the time of the parent’s birth;
- the parent who is British by descent must have lived in the UK for a continuous period of three years at any time prior to the child’s birth;
- during the three-year period, the parent must not have absences from the UK exceeding 270 days; and
- if aged ten years or older, the child is of good character.
Unlike the requirement under section 3(5), the three year period of residence relevant for this section does not have to be that leading up to the date of submission, therefore families who no longer live in the UK can still consider this option.
If a child has an entitlement under section 3(2), they will obtain British citizenship by descent. Therefore, if a child meets the requirements under sections 3(5) and 3(2), it may be preferable to apply under section 3(5) as you would obtain British citizenship otherwise than by descent.
Discretionary applications
If a child does not have an entitlement to register as a British citizen on the basis of either section 3(5) or 3(2) as above, a discretionary application may be made under section 3(1). A child under the age of 18 may be registered if the following requirements are met:
- if aged ten years or older, the child is of good character; and
- the Home Secretary considers registration to be appropriate.
This leaves the Home Secretary wide scope for discretion and, as such, each case will be assessed on its on its individual merits and all relevant factors will be taken into account.
The Home Office’s position is that a child will only be registered under this route when it is in the child’s best interests to be so, and they have a strong connection with the UK. The following factors will be taken into account:
- the child’s future intentions;
- the child’s parents’ circumstances;
- residence in the UK;
- the child’s immigration status; and
- any compelling compassionate circumstances raised as part of the application.
Naturalisation as a British citizen
The options discussed here apply to those who are under the age of 18. There are other ways by which an adult may acquire British citizenship. We consider the process of naturalising as a British citizen in more detail.
Contact our immigration specialists
We are experienced in advising upon and preparing applications to register as a British citizen.
If you require a review of your circumstances in order to establish whether you may be entitled to register a child as British, or if you require legal advice about an application, please contact us or complete our enquiry form below.
