Updated Guidance on Registration of Children as British Citizens by Discretion
Section 3(1) of the British Nationality Act 1981 (‘the Act’) states that:
‘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.’
This is known as registration by discretion. The factors guiding the exercise of discretion are set out in the Home Office policy guidance. This sets out the circumstances in which the Home Office will normally exercise discretion in favour of an applicant by granting their application. This is not definitive and each case must be considered on its merits taking into account the particular circumstances of the case.
The Home Office agreed to review their policy guidance in a consent order following a Judicial Review claim brought by The Project for the Registration of Children as British Citizens (PRCBC). The Home Office has now published updated policy guidance relating to the registration of children as British citizens, to provide greater clarity regarding the circumstances in which a child will normally be registered as British citizens by discretion pursuant to Section 3(1) British Nationality Act 1981.
It has provided details of three additional cohorts where registration would normally be granted. These relate to situations where the child has a close connection with the UK and are described in more detail below.
All of them require parental consent where relevant and that there is no reason to refuse on character grounds. These issues are solely set out in the guidance and not the Act itself. The Act does not require parental consent for a section 3(1) application. It requires applicants over the age of 10 to be of ‘good character’, but the guidance now seems to introduce a broader character assessment which may apply to those under the age of 10.
Children applying in line with their parents
Children must normally be registered as British citizens pursuant to section 3(1) 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 a British citizen or settled in the UK;
- The child has been resident in the UK for the last 2 years (a shorter residence period may be accepted for a child under the age of 2);
- The child is settled in the UK.
Children with settlement and residence
This recognises that a child may have their own period of residence in the UK, and have strong ties to the UK in circumstances where their parents have chosen not to become British citizens. This allows them to register as British as minors, rather than waiting until they are 18 to make an application to naturalise as a British citizen.
They will normally be registered pursuant to section 3(1) where:
- The child has completed a period of lawful residence in the UK of more than 5 years;
- The child has been granted settled status in the UK, and held that status for at least 12 months (this requirement can be overlooked if there are compelling grounds);
- The child’s parents have completed a period of 5 years residence and are settled in the UK;
- The child is of good character.
Children who have lived in the UK for more than 10 years
Children who were born in the UK can register as British after 10 years residence pursuant to section 1(4) of the Act. The updated guidance recognises that as such 10 years constitutes a significant period of residence for a child. It can therefore demonstrate a sufficiently strong connection with the UK to exercise discretion in favour of registering them as British.
Where the child is in the UK lawfully and the parents have regularised their own status, the application will be straightforward. However each case will be considered on its own merits.
The Home Office expects the child to be lawfully in the UK otherwise this ‘could be viewed as rewarding or incentivising non-compliance’. Importantly, the Home Office recognises that ‘there may be cases where the unlawfulness was beyond the child’s control’. Relevant factors when considering whether to register a child who is here unlawfully will include their age, their own connections with the UK, their length of residence and their particular circumstances.
The Home Office expects that the child’s parents are in the UK lawfully as this indicates that the family’s future is likely to be in the UK. The guidance recognises that older children are more likely to have formed their own independent connections to the UK, whereas the future of younger children will be more likely to be in line with their parents.
The updated guidance is welcome as it gives a better understanding for Applicants and caseworkers on how a discretionary application should be assessed. It also makes it clearer what evidence should be included.
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 cohorts under which a child will normally be registered.
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For expert advice and assistance for an application to register as a British citizen please contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.