Registration of a child born in the UK as a British Citizen

Children born in the UK on or after 1 January 1983, whose parents have only limited leave (for example, visitors, students, Point Based System migrant, refugees granted status after 30 August 2005 and who are granted limited leave initially), or who have a form of limited exceptional leave (for example humanitarian protection, discretionary leave, leave outside the rules), or who have no leave (for example asylum seekers, overstayers, illegal entrants) are not born British citizens.  However, children born to parents with limited leave, can be granted leave in line with them and if the parent(s) subsequently become settled in the UK, or the child remains in the UK for 10 years or more, the child is entitled to registration as a British citizen.

Registration on parents becoming British or settled

Under section 1 (3) of the British Nationality Act 1981:

‘A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—

(a)his father or mother becomes a British citizen or becomes settled in the United Kingdom; and

(b)an application is made for his registration as a British citizen.’

Therefore, minors are entitled to registration under s.1(3) of the BNA 1981 if:

• They were born in the UK on or after 1 January 1983; and
• They were not British citizens at birth because at the time neither parents was a British citizen or settled here; and
• While they are minors, either parent becomes a British citizen or becomes settled in the UK; and
• They are minors on the date of application.

Registration due to early years spent in the UK

Under section 1(4) of the British Nationality Act 1981:

‘A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.’

Therefore, adult or minors are entitled to registration under s.1(4) of the BNA 1981 if they:

• Were born in the UK on or after 1 January 1983; and
• Were not a British citizen at birth because at the time neither parent was a British citizen or settled here; and
• Were  aged 10 or more on the date of application; and
• Have lived in the UK for the first 10 years of their life;
• During that 10 years have not been out of the UK for more than 90 days in any one of those years.

Registration under this provision gives British citizenship otherwise than by descent.

The statute (s.1(7)) allows a discretion to condone longer absences than 90 days. However, this statutory discretion receives a gloss from the Nationality instructions, which indicate that non-intentional longer absences may be permitted.

Can UK-born non-British children be removed?

If none of the above applies, or before they do apply, then the position for these UK-born children who are not born British is that they do not have any immigration status.

There is no independent power to take enforcement action against them: they have not ‘entered’ the UK in an unlawful manner so they are not illegal entrants; they have not applied for and been refused leave to enter so they cannot removed as ‘port’ cases; and they cannot be administratively removed as a result of overstaying or breaching conditions of leave because they have not granted leave.

However, this does not mean that they are free from immigration controls. They can be removed from the UK together with their parents as part of the family unit if their parents are:

• removed from the UK as ‘port’ cases or as ‘illegal entrants’;
• administratively removed from the UK  (as overstayers, people who have breached their condition of leave, people who have obtained, or tried to obtain, leave to remain by deception or people who have ceased to be refugees); or
• ordered to be deported from the UK.

Contact our Immigration Barristers

For expert advice in relation to Registration of a Child as a British Citizen, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form.