Children born outside the UK to British mothers
British nationality law has undergone several important changes in recent years, in many cases in order to reflect changes in social attitudes and to correct historic injustices. Section 4C of the British Nationality Act 1981 allows children of British mothers to register as British, in circumstances where they would have automatically acquired British citizenship if women were able to pass on their nationality to children born abroad, in the same way that men were able to.
What are the requirements for children of British mothers to register as British?
The individual must be born before 1 January 1983. This is when the British Nationality Act 1981 came into force. Since this time, an individual could acquire British citizenship at birth if they were born in the UK to a parent who was British or settled at the time (acquisition ‘by birth’) or if they were born outside the UK to a British parent (acquisition ‘by descent’) who themselves were British otherwise than by descent. Before this, only fathers could pass on nationality by descent (and anyone born in the UK would generally become a citizen).
Before 1983, children could acquire citizenship of the UK and Colonies (CUKC), which is the form of nationality that existed prior to British citizenship, through their father if he was a citizen otherwise than by descent. Children born to fathers that held citizenship by descent, could acquire it if certain conditions were met. One such condition, to register the birth at a UK consulate within a year, does not apply to Section 4C applications following the ruling in The Advocate General for Scotland v Romein (Scotland) [2018] UKSC 6 (8 February 2018).
The individual must show that they would have become a CUKC before the Act came into force if their mother were able to pass on their citizenship in the same way as British fathers could at the time.
The individual must show that they would have acquired the ‘right of abode’ in the UK prior to 1 January 1983, if they had been able to acquire citizenship through their mother.
Citizens of the UK and Colonies born, registered, naturalised or adopted in the UK, or with a parent or grandparent who fulfilled these conditions would have acquired the right of abode, as would a citizen who had been resident in the UK for more than 5 years. Commonwealth citizens with a parent who was a CUKC also got the right of abode, as did Commonwealth citizen women who were married to a CUKC.
Do I need to be of Good Character to register as British?
Section 41A of the Act requires individuals to be of ‘good character’ to register as British. This is not defined in statute but the Secretary of State has published guidance on how this requirement will be assessed.
In the case of R (on the application of David Fenton Bangs) v Secretary of State for the Home Department the High Court issued a Declaration of Incompatibility with the government’s consent, finding the good character requirement incompatible with Article 14 (principle of non-discrimination) read with Article 8 (right to private and family life) of the ECHR given that if a British mother could pass on their nationality in the same way as a British father, this would have been acquired automatically upon the birth of their child. This followed a Declaration of Incompatibility issued by the Supreme Court in Johnson v Secretary of State for the Home Department [2016] relating to the imposition of the good character requirement on individuals who would have acquired British nationality automatically at birth if their parents had been married at the time.
A Remedial Order has been proposed to remedy this has not yet been passed. In the meantime, applications where the only reason for refusal is due to failure to meet the good character requirement are being placed on hold.
Contact our Nationality Immigration Barristers
For expert advice and assistance regarding an application to register as a British Citizen contact our immigration barristers on 0203 617 9173 or via our enquiry form below.
