Understanding Discretionary Child British Citizenship Applications

By Sophie Gibson - Legal Associate

23 Sep 2024

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 Child as a British Citizen

Some children who do not automatically acquire British citizenship at birth may be registered as British under the British Nationality Act 1981. If a child is not entitled to register as a British citizen under the Act, they may make a discretionary application under section 3(1). This article discusses the requirements and expectations for successful registration of a child under the discretionary power contained in section 3(1) of the Act, the situations it applies to and the scope of application. 

2. Who Can Apply Under Section 3(1)?

Section 3(1) of the British Nationality Act 1981 grants the Secretary of State a discretionary power of registration of a minor as a British citizen ‘if he thinks fit’, though it is notable that we currently have a female Home Secretary, and indeed have had several in recent decades, so this legislation is evidently outdated. 

The only statutory requirements are that:

1. The child is under 18 at the date of application;
2. If over the age of 10, the child is of good character;
3. The Secretary of State thinks it ‘fit’ to register them.

Clearly, the provision itself is very brief, which allows for a wide scope of discretion. Applications can be assessed on a case-by-case basis, taking all relevant considerations into account. Nonetheless, the Home Office Guidance sheds more light on how this discretion is exercised. 

The Guidance provides a list of situations where the Home Office will normally register a child. Common scenarios are considered in turn. 

3. Children Adopted Abroad by British Citizen Parents

To make an application for registration under section 3(1), the child must have been adopted under one of the following prescribed procedures:

• In accordance with the terms of the Hague Convention on Intercountry Adoptions;
• If before 3rd January 2014, in a country listed in Schedule I or II to the Adoption (Designation of Overseas Adoptions) Order 1973;
• If after 3rd January 2014, in a country listed in the Adoption (Recognition of Overseas Adoptions) Order 2013, or the Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013.

An application for registration where the child was adopted abroad in other circumstances will, according to the Home Office Guide, normally be refused. However, since this is a discretionary application, all cases will be considered on their merits and take into account the child’s best interests. 

Additionally, at least one of the adoptive parents must be a British citizen ‘otherwise than by descent’ (such as those who have acquired British citizenship by birth in the UK, or who have naturalised or registered as a British citizen). 

All relevant adoption laws must have been adhered to. This covers the laws of the country where the adoption took place, the child’s country of origin, and the country where the adoptive parents are habitually resident. The Home Office must also be satisfied that the adoption is not one of convenience, arranged for the purpose of facilitating the child’s admission to the UK. 

Where both parents have parental responsibility, both parents must give their consent for the child to be registered. 

There must also be no reason to refuse the application on the basis of character grounds. This is only engaged when the applicant is over the age of 10. According to the Home Office Guidance, this means that ‘the child must observe UK laws and show respect for the rights and freedoms of its citizens.’ Therefore, children who have received criminal convictions may fall foul of this, but other considerations such as payment of income tax and National Insurance contributions are of course much less likely to apply to children. 

4. Is Registration as a British Citizen in the Child’s Best Interests?

Another important part of the assessment is whether registration is demonstrably in the child’s best interest. The Home Secretary is under a duty contained in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK. This, together with Article 4 of the UN Convention on the Rights of the Child, means that consideration of the child’s best interests must be a primary consideration in the making of this decision.  This means that even if some or all of the above criteria are not met, the application will still be considered on its merits, and the child may still be registered if registration is in their best interests. 

However, since the application is discretionary, this may still mean that although the above requirements are all met, there may be some reason why the child shouldn’t be registered. The Home Office Guide says that serious doubts about an adoptive parent’s character or suitability to adopt a child, or irregularities in the adoption procedure could cause the Home Secretary to refuse to register the child.

5. Children Applying in Line With Parents

The Home Office will normally exercise discretion to register a child if one parent is a British citizen or about to become one through registration or naturalisation, and the other parent is a British citizen or settled in the UK. 

The child must have been resident in the UK for at least the last two years, although the Home Office Guidance does state that if the child is younger than 2 years old, they will take this into account and may accept a shorter period of residence.

The child must also have indefinite leave to remain in the UK, their parents give consent to registration, and there is no reason to refuse the application on the grounds of character. 

6. Children With Settlement and Residence

An application is likely to be accepted if the registering child has completed more than 5 years of lawful residence, and has held settled status in the UK for at least 12 months. The child’s parents must have also completed the 5 year residence period and be settled in the UK. 

As above, both parents must give their consent to the child being registered, and there must be no good reasons to refuse on character grounds. 

7. Children Born to a Parent Who Had Renounced and Subsequently Resumed British Citizenship

A child will come within this category if a parent has renounced and subsequently resumed British citizenship, and in doing so became British otherwise than by descent. The child must have been born before the date of resumption, and both parents must give their consent to registration (unless there are good reasons provided not to require this). 

8. Children Who Have Lived in the UK for More Than 10 Years

If the child and their parents are in the UK lawfully and have been living here for more than 10 years, they will fall within this category. Again, both parents must give their consent to registration (absent good reasons), and there must be no reason to refuse on character grounds. 

Lawful residence is expected by the Home Office for the reason that granting citizenship to a child living in the UK unlawfully could undermine the immigration system. However, there are some cases where unlawfulness is out of the child’s control, and so the Home Office may grant an application where there are exceptional reasons to do so. This involves consideration of the following factors:

• The age of the child;
• Their connections with the UK;
• Their length of residence;
• Their particular circumstances.

Registration may be more appropriate for older children who have lived in the UK since they were very young and have demonstrated very strong personal ties to the UK. Younger children are less likely to be successful, unless exceptionally compelling circumstances are presented, given that they are at a less critical point in their lives,  

9. Any Other Child Born to British or Non-British Parents

The guidance acknowledges that it is impossible to cover all circumstances under which the Home Secretary might exercise their discretion under section 3(1) to register a child as British. However, if a child does not fall into one of the categories specifically outlined in the guidance, in considering any other application, the following points will be considered:

• The child’s connections with the UK;
• The child’s immigration status in the UK, particularly where the child’s right to stay in the UK is restricted;
• The future intentions for the child;
• The child’s parents’ circumstances, including the views of the child’s parents;
• The nationality and immigration status of the child’s parents. The Home Office expects either both parents to be British citizens or one parent to be a British citizen and the other parent to have settlement in the UK;
• The child’s good character;
• The length of time the child has lived in the UK. The Home Office expects at least 2 years’ residence, and this is especially the case for children over the age of 13. This is considered alongside other factors such as whether the child is settled in the UK;
• Any compelling circumstances raised in the application.

The Home Office must be satisfied that the child’s future clearly lies in the UK before registering them under section 3(1). Where the child is in the UK at the time of application and it is stated in the application that the child’s future lies in the UK, this is normally accepted as true by default, unless there is something in the application that casts doubt on this. Examples of this are:

• Where the child, or one or both of their parents, has recently left the UK for more than 6 months;
• The child is about to leave the UK;
• One or both parents are living abroad.

10. Children Outside the UK at the Time of Their Application

For children outside the UK at the time of their application, an application will normally be refused unless it falls under another category mentioned above,  or if either:

• The child is abroad with a parent in Crown service such as the armed forces; or
• The child had an established home in the UK before going abroad and they meet the residence criteria, their absence is not more than 6 months, and the Home Office is satisfied that the child intends to return to live in the UK within 6 months of their departure.

Residence in the UK is expected for a successful registration application under section 3(1) because this is consistent with most other provisions concerning the registration of children, and confirms that a child’s future clearly lies in the UK. Moreover, it allows the child to establish their own ties to the UK.

Nonetheless, it must be pointed out that since this is a discretionary application, the fact that children satisfy some criteria referred to does not mean they will be registered if there are other criteria that they do not satisfy. This was considered recently by the High Court and discussed in our previous article High Court Considers Discretionary Registration of Children as British Citizens.

11. Contact Our Immigration Barristers

For expert advice and assistance on an application for discretionary registration of a child as a British citizen, or any related visa or immigration application, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.