By Isabella Reynard, Pupil Barrister, Richmond Chambers

The benefits of obtaining British citizenship can be extensive for many who have sought stability in a country they call home, having navigated the UK’s immigration system for years. The impact for children can be particularly far-reaching. It can allow a child to participate fully and more permanently in social spheres, including job opportunities, higher education, travel and voting.

This article explores the ways through which children can obtain British citizenship and how the landscape is changing.

Entitlement

The British Nationality Act 1981, contains a number of provisions through which children can register as British citizens. Several of these provisions allow for registration by entitlement. This is when a child is not automatically British by birth but is entitled to register via an application to the Home Office.

A child may have an entitlement to British citizenship if they were born in the UK to parent(s) who have become British or settled in the UK. They will not automatically be a British citizen if they were born in the UK.

The recent British Nationality (Regularisation of Past Practice) Act 2023 was brought in to amend the British Nationality Act 1981 with retrospective effect. It adds a further section, that a person exercising free movement rights is deemed free from immigration restrictions and thus ‘settled’. The result of which is people born in the UK to EU citizens from 01 January 1983 to 01 October 2000 will be automatically British.

Types of Citizenship

Under nationality law, there are two types of citizenship: citizenship by descent and that otherwise than by descent. Citizenship by descent is normally automatically passed down by a generation to their child born outside of the UK. This is a significant distinction as those who hold British citizenship otherwise than by descent are typically unable to pass it to their children automatically.

Discretionary Applications under the British Nationality Act 1981

Section 3(1) of the same Act sets out the legislative framework for discretionary applications which can be made to the Secretary of State. This can be utilised when children fall between the statutory gaps.

Since the Act’s conception in 1981, it has been amended in a piecemeal fashion, with reference to and relying upon external legislation, including the Nationality & Borders Act 2022.

The acquisition of British nationality through the common law ended with the British Nationality Act 1948 and the conception of citizenship has been statutory in nature since. In the Supreme Court case of R (PRCBC and O (by her litigation friend AO)) v Secretary of State, [2022] UKSC 3 Lord Hodge set out: “Rights conferred by British citizenship are rights conferred by a process laid down by statute and subordinate legislation and not by the common law.”

However, the constitutional idea of citizenship is imperative to nationality law. British citizenship is the form of status which solidifies one’s rights and acknowledges a connection to the UK. It has long wrongly been conflated with immigration law.

A series of policy documents, distinct from legislation, are used by caseworkers when exercising discretion in deciding on registration applications. The policy documents are referred to as guidance and give caseworkers a broad discretionary power.

Guidance for Discretionary Applications:

The guidance sets out several circumstances in which applications should ordinarily be granted. Although this does not mean that a case will necessarily be refused if it is not factually similar to the given circumstances, clarity in the guidance, or better than this the legislation, which is subject to extensive scrutiny, would allow for greater certainty in applications and ensure applicants do not have to unnecessarily incur costs.

A key issue with reliance on guidance is that it means the process lacks legal certainty, as this document is not readily available to lay applicants. The absence of right of appeal for nationality applications results in a near absence of case law, beyond individual Judicial Reviews, which are often unreported, means that prospective applicants are left in the dark as to the likely success rate of their application, and as are legal advisers.

The Supreme Court decision in the case of R (on the application of Alvi) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin) set out that applications should not be refused solely on the basis of policy guidance as this was not included in the Immigration Rules and cannot add additional requirements.

Similarly, caseworkers should not refuse registration applications on the basis of discretionary guidance-specific provisions, which themselves are altered often, which are not visible on the face of the legislation itself.

Good Character Requirement:

For discretionary applications under section 3(1), the good character requirement applies to a person who is aged 10 or over at the date of application. If the Home Office deems a young person to not be of good character, they cannot become a British citizen. No statutory definition of good character is set out, so it is once more, discretionary. The High Court set out in R (Ali) v Secretary of State for the Home Department [2007] EWHC 1983 (Admin), that as it is a discretionary power, it cannot properly be reduced to ‘rigid considerations’.

The reference to section 55 of the Borders, Citizenship and Immigration Act 2009 in the ‘Nationality policy – good character’, is light touch. A breach of section 55 was one legal basis used to successfully challenge the £1,012 registration fee for applications. Following the case of PRCBC, O & A v SSHD [2019] EWHC 3536 (Admin); [2021] EWCA Civ 193;[2022] UKSC 3, a fee waiver has been introduced.

This signifies a recognition of the practical barriers for children seeking to obtain citizenship. Alongside the fee, as of April 2013, legal aid is not available to assist with registration applications, which can be technical and involve complex application forms and detailed supporting evidence, bar some exceptional case funding.

Practically, the lack of legal certainty, the potential cost of an application, and lack of legal aid assistance, act as a deterrent for many prospective applicants, meaning they will not receive the benefits, and indeed entitlements, of British citizenship.

Throughout the history of the British Nationality Act 1981, welcomed reforms have included the removal of the provision concerning children born to fathers out of wedlock not being entitled to a father’s passed on British citizenship. These are small steps closer to honouring the intentions of the British Nationality Act, to allow for discretionary decision making to find just outcomes and highlight the importance of British citizenship. The Windrush scandal in particular highlights the immense wrongs that can be committed when immigration policy is increasingly Hostile to those living within its parameters.

Isabella Reynard, Pupil Barrister, Richmond Chambers