Registering children as British citizens: discretionary applications

British nationality law can be challenging. Children who are not automatically British or entitled to register under one of the provisions of the British Nationality Act 1981 may be able to register at the discretion of the Home Office. Solicitor Carla Mirallas Martinez reviews the circumstances and the factors which should be considered in discretionary applications.

Our recent articles have considered the circumstances where a child may be eligible to register as a British citizen if they were born inside or outside the UK. Here, we take a closer look at discretionary applications.

Discretionary applications under section 3(1) of the British Nationality Act 1981

If a child is not automatically British or does not have an entitlement to register as a British citizen based on any section of the British Nationality Act 1981 (‘BNA’), they may be able to make a discretionary application pursuant to Section 3(1) of the BNA. This section gives the Home Office a broad discretion to register children as British:

“If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.”

There are minimal statutory requirements for discretionary applications:

the child must be a minor at the date of application;
if aged ten years or older, the child must be of good character; and
the Home Office thinks it fit to register them.

The above leaves the Home Office wide room for discretion and, as such, each application must be assessed on its own individual merits. The Home Office policy guidance on Registration as a British citizen: children identifies scenarios in which it is likely that discretion will be exercised in the child’s favour. The guidance goes on to identify the general criteria for those who do not fit the specific scenarios. It is important to note the guidance clarifies that, general criteria or no general criteria, discretion remains at large.

Specific scenarios under the Home Office policy guidance

In the Home Office guidance, there are certain scenarios where it would normally be expected to register a child as a British citizen. We have summarised the different categories below:

Children applying in line with their parents
Children may apply to register on the same occasion as their parents, who are applying for British citizenship. In accordance with the guidance, children must be registered where:

one parent is a British citizen or about to become one through registration or naturalisation;
the other parent (if involved in the child’s life) is already a British citizen or settled in the UK;
the child has been resident in the UK for the last two years (if the child is under the age of two, a shorter residence period will be acceptable);
the child is settled in the UK (i.e., has Indefinite Leave to Remain);
where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded; and
there is no reason to refuse on character grounds.

Children with settlement/Indefinite Leave to Remain (ILR) and residence in the UK
This provision acknowledges the fact that children may have their own period of residence in the UK, and that their parents may have chosen not to become British citizens for valid reasons (i.e., financial pressures, acquiring British nationality may mean that they lose their current nationality, etc). In these types of scenarios, a child may have developed their own connections and have established their life in the UK. In this regard, children with settlement and residence with parents who choose not to become British citizens will usually be able to register where:

the child has completed a period of lawful residence in the UK of more than five years;
the child has been granted settlement in the UK, and held that status for at least 12 months;
the child’s parents have completed a period of five years residence and are settled in the UK;
where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded; and
there is no reason to refuse on character grounds.

Children who have lived in the UK for more than ten years
In general, children born in the UK who have lived in the UK for the first ten years of their lives and have not been outside of the UK for more than 90 days in each of the first ten years of their life, can register as British pursuant to section 1(4) of the BNA. However, there are often cases where children have lived ten years of their lives in the UK but cannot meet the rest of the requirements. As explained in the policy guidance, ten years constitutes a significant period of residence for a child to demonstrate a strong connection with the UK.

Children who have lived in the UK for more than ten years can apply to register on a discretionary basis if the following factors are met:

The child is in the UK lawfully.

The Home Office would usually expect the child to be lawfully in the UK. However, there may be cases where the unlawfulness is beyond the child’s control. If the child is not in the UK lawfully, the Home Office must consider whether there are exceptional reasons and whether the reasons put forward outweigh the need to promote compliance with UK immigration law. The Home Office will need to take into account the age of the child, the connections they have established in the UK, their length of residence, and their particular circumstances and consider the case on its own merits.

The parents have regularised their own status.

The Home Office would also normally expect the child’s parents to be in the UK lawfully, as this indicates the family’s future is likely to be in the UK. It may be argued that, for a child who has lived most of their life in the UK and formed connections here, it is in their best interests to secure their status. However, this may be more obvious for older minors who have formed their own independent connections than for younger children whose future will usually follow their parents. If the child’s parent’s status in the UK is precarious, it may be considered that the child’s future may not lie in the UK. Again, it is important to remember that each case will be considered on its own merits and detailed information and evidence will need to be provided.

Where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded.
There is no reason to refuse on character grounds.

It is also important to note that, unlike registration under section 1(4) of the BNA 1981, children are not required to show that their absences from the UK are below 90 days in each of their ten years residence, which may be helpful in certain cases.

Children born abroad to a British citizen parent in designated or community institution service
A child born to a parent who is a British citizen in designated or community institution service overseas may be a British citizen, subject to where the parent was recruited. This applies to children who were born whilst the parent was in such service, but before the service was designated or admitted as a community institution.

Exercising discretion in these cases is aimed at placing the child in a similar position as a child born to a British parent after the service becomes designated or its admission as a community institution.

In accordance with the policy guidance, the child must normally be registered if:

they were born before the date of designation or admission as a community institution;
the mother or father is, or was at their death, a British citizen by descent;
the parent is, or would have been, in designated service or community institution service on the date of the application;
at the time of the child’s birth, the parent was in that service before it was designated or admitted;
where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded; and
there is no reason to refuse on character grounds.

Children born to a parent who renounced and subsequently resumed British citizenship
A child must normally be registered if:

the mother or father has renounced and subsequently resumed British citizenship;
the child was born before the date of resumption;
that parent either:
- became a British citizen otherwise than by descent on resumption; or
- was a British citizen by descent and the child would have an entitlement to registration under section 3(2) or 3(5) of the BNA had the parent not renounced citizenship.
where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded; and
there is no reason to refuse on character grounds.

Children born to a parent registered under section 4C, 4G, 4H, 4I and 4L of the BNA
A child must normally be registered if:

the child was born before the parent registered under one of the above sections;
if the parent had registered before the child’s birth, the child would be a British citizen or have an entitlement to be registered under section 3(2) or 3(5) of the BNA;
where necessary, both parents consent to the registration or any objections by the non-applying parent are ill founded; and
there is no reason to refuse on character grounds.

Children adopted abroad by British citizens
Special attention must be given to children adopted abroad, and the decision in such cases will depend very much on the circumstances of the adoption.

Children of unmarried British citizen or settled fathers who are not automatically British and are unable to register under section 4F or 4G
If a child does not have an entitlement to register under sections 4F to 4I, they can make a discretionary application if they were born to a British citizen or settled father, and the criteria below are all met:

the Home Office is satisfied about the paternity of the child;
those with parental responsibility consent to the application;
had the child’s parents been married they would normally have registered under section 3(1); and
if the child is ten years or older there is no reason to refuse on character grounds.

Different provisions apply to children born on or after 1 July 2006. Where a child’s mother was married at the time of the birth, her husband (and no other man) is regarded as the father of any child born to her on or after 1 July 2006. However, where there is evidence that a British or settled man, and not the mother’s husband, was the child’s natural father, the child can apply under section 4F or 4G, otherwise there may be grounds to register them under section 3(1).

Children born to surrogate mothers who are not born British
This type of case tends to be complex, and general guidance on surrogacy and how to identify the legal parents in such cases may be found in the surrogacy guidance. In most cases, the commissioning couple will have no legal relationship to the child, and will therefore be unable to pass on the benefits of British citizenship or settled status automatically.

However, in some cases, a commissioning father who is biologically related to the child will be able to pass on citizenship automatically to a surrogate child, where the mother is not married, and proof of paternity can be produced in certain circumstances. However, where the surrogate mother was married to someone else at the time of the birth, her husband is the ‘father’ for nationality purposes.

Different provisions apply to situations where a man is not the biological father of the child and cannot meet the definition of ‘father’ in the BNA, and also where a woman (whether the child’s biological mother or not) falls outside the definition of ‘mother’ in the BNA.

Children born to a woman who is the civil partner of a British citizen who are not born British
The mother of a child for British nationality purposes is the woman who gives birth to that child. From 6 April 2009, the Human Fertilisation and Embryology Act 2008 provides for the mother’s female partner to be treated as the parent of the child.

If a child was conceived before the act came into force, and the mother’s civil partner is a British citizen, irrespective of whether or not she is biologically related to the child, the Home Office must consider registering if:

those with parental responsibility have provided their consent;
had the woman been the child’s mother for BNA purposes:
- the child would have an automatic claim to British citizenship under either section 1(1) or section 2(1) of the BNA;
- the child would have had an entitlement to registration under either section 1(3), section 3(2) or section 3(5); or
- the child would normally have registered under section 3(1); and
there is no reason to refuse on character grounds.

Factors under the Home Office Policy guidance

If a child’s individual circumstances do not fit within any of the specific scenarios described above, an application may be made with reference to various factors as set out in the Home Office policy guidance.

As mentioned above, discretion is ‘at large’ and each case must be considered on its merits:

“It is important to remember that this guidance does not amount to definitive rules. It will enable you to consider the majority of cases, but because the law gives complete discretion, you must consider each case on its merits. All the relevant factors must be taken into account, together with any representations made to us. It is possible to register a child under circumstances that would normally lead to the refusal of an application if this is justified in the particular circumstances of any case.”

The following factors are generally taken into account when deciding whether it may be appropriate to register a child on a discretionary basis:

The child’s future intentions
The child’s future must be clearly seen to lie in the UK.

This would normally be accepted where it is stated in the application form. Unless the child is outside the UK at the time of the application, or there is information that casts doubt on the child’s account, it should be sufficient for the child (or their parents) to simply state their intention as part of their application. In addition, if the child meets the residence criteria (as described below) and has an established home in the UK, they are likely to meet this expectation.

Where the child is outside the UK at the time of the application, the application should normally be refused unless the above requirements are met. The guidance does specify some exceptions to this, which may be where:

the child is abroad with a parent in Crown service (i.e., Armed Forces); or
the child had an established home in the UK before going abroad, and:
- they meet the residence criteria;
- their absence was, or will not be, more than six months; and
- the Home Office is satisfied that the child intends to return to live in the UK no later than six months after the date of their departure.

The child’s parents’ circumstances
The guidance makes it clear that the Home Office would usually expect one parent to be either a British citizen or making a nationality application which is going to be granted, and for the other parent to be either settled or unlikely to be returnable to their country of origin in the short or medium term.

If the parents are separated and the child has no ongoing contact with the other parent, the parent with day-to-day responsibility should be (or is about to become) British, or should be settled, with strong reasons in favour of their registration.

Even though the guidance confirms that the Home Office will only rarely register a child where neither of their parents is (or is about to become) a British citizen, it also makes clear that each case must be considered on its individual merits. Exceptional circumstances that will be considered in these cases include:

older children (16 and above) who have spent most of their life in the UK or children who require citizenship to follow a particular career, such as in the Armed Forces;
the child’s future clearly lies in the UK; and
the person making the application has day-to-day responsibility for the child’s upbringing and is, or is about to become, a British citizen.

Residence in the UK
In accordance with the guidance, the Home Office will normally need to be satisfied that the child has completed a period of residence in the UK. However, this will depend on the child’s age at the date of application:

Child under 13 years old at the date of application: the length of residence in the UK is less important, provided their future clearly lies in the UK and that registration is otherwise appropriate.
Child 13 years old or over at the date of application: they should normally have completed a minimum of two years residence in the UK before being registered. However, each case must be considered on its individual merits.
Child was 16 years old or over when they arrived in the UK: the Home Office will generally not use discretion to register them as a British citizen. However, again, discretion is at large, and each case must be considered on its individual merits.

The child’s immigration status
There is an expectation in the guidance that children applying to become British citizens would have first acquired indefinite leave to remain or settled status in the UK.

However, in cases where children do not have such status, registration may still be considered appropriate if the child provides compelling evidence to demonstrate that their future clearly lies in the UK, and that the benefit to the child becoming a British citizen outweighs the normal expectation that a person becoming British should first be settled. Providing strong evidence of the compelling or compassionate circumstances of the case would be important.

Compelling compassionate circumstances
The guidance makes clear that there may be circumstances where the normal expectations for registration (set out above) are not met, but there are exceptional circumstances that mean that it is still appropriate for the Home Office to use discretion to register the child as a British citizen. The compelling circumstances may mean that registration is in the best interests of the child.

An example of a compelling/compassionate circumstance that may result in the Home Office using discretion to register a child, even where the normal expectations are not met, is where the child has been taken into the care of a local authority.

It would be important to prepare strong representations explaining why the compelling compassionate circumstances are sufficient to mean that discretion should be exercised in the child’s favour.

Further points to consider in discretionary registration applications

Other key considerations in discretionary registration applications are as follows:

Discretion at large
There will always be other circumstances in which discretion may be exercised based on the factual situation of each particular case, even if they fall outside the specific scenarios under which a child will normally be registered.

Child’s best interests & Article 8 ECHR
Section 55 of the Borders, Citizenship and Immigration Act 2009 obliges the Home Office to have regard to the need to safeguard and promote the welfare of a child in the UK and, together with Article 3 of the UN Convention on the Rights of the Child, this means that consideration of the child’s best interests must be a primary consideration in nationality decisions affecting them.

Article 8 of the European Convention on Human Rights (ECHR) protects the right to family and private life. The European Court of Human Rights has held that the arbitrary denial of citizenship may result in a breach of the right to private life, but this may be hard to establish if a decision is made in line with Home Office guidance.

Parental consent
There is an expectation in the policy guidance that parental consent of both parents will be provided. This is the case irrespective of where the child or the parents are living, or whether the child is natural or adopted.

Generally, an application for registration will be unsuccessful if the consent of both parents has not been obtained. However, there may be circumstances where this is not possible (i.e., where a parent has passed away). In these cases, the child will usually need to obtain the consent of the person or organisation with parental responsibility.

Different rules apply to children subject to guardianship orders and children under the care of the local authority.

Good character requirement
It is important to remember that children over the age of ten applying to register as British citizens must show they are of ‘good character’. The BNA does not define what ‘good character’ means. The Home Office policy guidance on good character sets out the criteria and types of conduct which must be taken into account when assessing whether a person has satisfied the requirement to be of good character.

Any criminal convictions will be relevant to a registration application and may be grounds for refusal. In addition, the guidance includes ‘illegal entry’ and ‘evasion of immigration control’. The guidance also recognises that when assessing whether a child is of good character, the Home Office must take into account any mitigating factors relevant to the child’s particular circumstances.

This requirement can be complex and legal advice should be sought if it may affect an application.

Types of British citizenship

British citizens are either:

British citizens ‘otherwise than by descent’ (meaning they acquired citizenship in their own right, such as through registration), or
British citizens ‘by descent’ (meaning their eligibility for citizenship derives from their ancestors’ nationality status, for example, if their father or mother were British at the time they were born).

There is little practical difference between the two types of citizenship, except that a child born overseas to a parent who is a British citizen by descent does not automatically become British at birth (subject to certain exceptions). This is because entitlement to British citizenship can usually only automatically descend to one generation born overseas.

Registration by discretion: How our Immigration Solicitors can help

Applications for registration can be complex, particularly if they are made on a discretionary basis. In some very complex cases, advice from counsel may be required. We are experienced in advising upon and preparing applications to register children as British citizens on a discretionary basis.

If you require a review of your circumstances to establish whether a discretionary application for a child may be likely to succeed, or if you require legal advice about an application, please contact us or complete the enquiry form below.