Registration of a Child as a British Citizen

British nationality law is complex, and this makes it difficult for individuals to understand their rights and be successful in their claims for nationality.   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.  In this article we will be looking at rights of children born in and outside the UK to register as British nationals.

In certain circumstances a child will automatically be a British national and you may not be aware of this.  In this situation the child will not be registered as a British citizen and you can just apply for their first British passport.

A Child’s Right to British Citizenship

There are two ways that a child can automatically be a British citizen: by ‘descent’ and ‘otherwise than by descent’.

For clarification these definitions mean:

“British citizen otherwise than by descent” is someone who can pass their citizenship onto a child born overseas and would be a British citizen as a result of being born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory.

“British citizen by descent” cannot normally pass on citizenship to a child born overseas. A British citizen by descent could have become such a citizen in a number of ways – for example:

  • by birth outside the United Kingdom to a parent who was a British citizen otherwise than by descent
  • by registration

Children Born in The UK

Under section 1(1) of the British Nationality Act 1981, a person born in the UK between 1 January 1983 and 30 June 2006 (inclusive) is a British citizen if, at the time of their birth one or more of the following applies:

  • their parents are married and either parent is a British citizen
  • their parents are married and either parent is settled in the UK
  • their parents are married and either parent is a member of the armed forces and the person was born on or after 13 January 2010
  • their mother is a British citizen
  • their mother is settled in the UK
  • their mother is a member of the armed forces and the person was born on or after 13 January 2010

Under section 1(1) of the British Nationality Act 1981, a person born in the UK on or after 1 July 2006 is a British citizen if, at the time of their birth, one or more of the following applies:

  • either parent is a British citizen
  • either parent is settled in the UK
  • either parent is a member of the armed forces and the person was born on or after 13 January 2010

A person is ‘settled in the UK’ if they have indefinite leave to enter or remain or permanent residence.

So, a child born in the UK after 1 July 2006 where at the time of their birth either of the parents were British citizens or settled in the UK, the child is automatically born a British citizen otherwise than by descent and there is no need to apply for registration.

Children Born Outside The UK

Entitlement to nationality where the parent is a British citizen other than by descent

Under section 2(1)(a) of the British Nationality Act 1981, a person born outside of the UK on or after 1 January 1983 is a British citizen at birth, if at the time of birth, either parent is a British citizen ‘otherwise than by descent’.

For children under 18, a parent who is a British citizen otherwise than by descent does not need to register the child as a British national and can simply for a first passport.

Entitlement to nationality where the parent is a British citizen by descent

A child born outside of the UK to a parent who was British by descent maybe entitled to register as a British citizen whilst they are under the age of 18 and

  • the child and both of their parents were in the UK for a 3-year period ending with the date of the application.
  • the child and both of their parents have not been absent from the UK for more than 270 days in that 3-year period.

Where the parents have divorced or one parent has died, only the child and one of the parents needs to meet the residence requirement.

This would be particularly relevant where a British citizen by descent has relocated to the UK having previously lived outside and has non-British children who have needed entry clearance/leave to remain in the UK.  After three years of residing in the UK, provided the children and parents have not been absent from the UK for more than 270 days, could apply for registration.

Registration of a Child as British Citizen

A child who is not born British, may be entitled to British nationality by registration through birth or by satisfying the criteria for registration at discretion.  An application to the Home Office for registration as a British citizen needs to be made under these circumstances.

There are a number of provisions under the British Nationality Act 1981, pursuant to which the child would have the right to become British.

  • Registration of a child born in the UK to a parent who has become a British citizen or settled since the child’s birth

Children are entitled to registration under section 1(3) of the British Nationality Act 1981 if:

  • they were born in the UK
  • they were not British citizens at birth because at the time neither parent was a British citizen or settled
  • while they are minors either of the parents has since become a British citizen or settled in the UK
  • they are under the age of 18 on the date the application is received
  • they are of good character if over the age of 10

Children and adults are entitled to registration under section 1(4) of the British Nationality Act 1981 if:

  • they were born in the UK
  • they were not a British citizen at birth as at the time of birth neither parent was a British citizen or settled in the UK
  • they are aged 10 years or over on the date of the application
  • they have lived in the UK for the first 10 years of their life
  • they have not been outside of the UK for more than 90 days in each of the first 10 years of their life
  • the Secretary of State is satisfied they are of good character

Registration under section 1(3) gives British citizenship otherwise than by descent.

Discretionary Registration

Where a child is neither born British nor has any entitlement under the BNA 1981, the Home Office has the discretion to register the child, provided that they meet the criteria for discretionary application for registration.

The criteria is:

  • the applicant is under 18 at the date of the application
  • if aged 10 years or over on the date of application the applicant is of good character
  • the Home Secretary thinks fit to register them

Under its discretionary the Home Secretary may use discretion in exceptional circumstances to register a child as British where the number of days spent outside of the UK by the child exceeds 90 days.

Summary

It is important to note that even if where a child is not British at birth, has no entitlement to registration under the British Nationality Act 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.

A child born in and outside the UK to a parent who is British citizen other than by descent will automatically be a British citizen and registration is not necessary.  The parent can apply for a first passport for the child.

A child born in the UK where neither parent was a British citizen at the time of his/her birth but has since and whilst the child is under 18, become a British citizen or settled in the UK, will also be eligible to apply for registration as a British citizen.

It is possible for a British citizen by descent to register a child who is born outside the UK as a British citizen where the child and parents have lived in the UK for three years ending with the date of application and have not spent more than 270 outside of the UK in that period.

Applications for registration, particularly discretionary registration are complex and will require detailed documentary evidence to be submitted in support of the application.

Contact immigration solicitors at RKB Law to discuss your nationality case.  Our dedicated solicitors are experts in this complex area of law and can guide you to success in your application.   Our team can be contacted on 01622 541054 or email info@rkb-law.co.uk