British born children entitled to citizenship but caught in an evidence trap

There are many impediments to children registering their entitlement to British citizenship. Solange Valdez and Steve Symonds have previously written for Legal Voice on the separate issues of good character and Home Office fees. A whole other set of difficulties arises for many children in relation to evidence.

Elaine is now a young adult. She was born in the UK and has lived here all her life. She became entitled to British citizenship on her 10th birthday, by virtue of section 1(4) of the British Nationality Act 1981. At that time she was in the care of social services, and had already been in their care for nearly five years.

As is the case for many children, nobody understood or thought about Elaine’s citizenship entitlement when she was 10. Indeed, it was not until she was about to reach adulthood that anyone gave this serious consideration. Elaine was then referred to the Project for the Registration of Children as British Citizens (PRCBC).

In purely technical terms, Elaine’s case is as straightforward as can be imagined. As someone born in the UK and living here for the first 10 years of her life, she remains – subject to the good character requirement – entitled to be registered as British. In evidential terms, however, things are far from straightforward.

Elaine must prove her residence throughout those first 10 years. Limited periods of absence are permitted – and these may be surpassed if there are ‘special circumstances’ to satisfy section 1(7) of the Act – but this ought to be irrelevant in Elaine’s case. She has never left the UK.

Had social services understood and taken the necessary steps to register her when she was 10, things might have been easier. But after so much time, it is extremely difficult to track down evidence of Elaine’s residence in the UK before she was taken into care.

This affects many children – both those in care and those not. Over time, baby books, medical and school records, which earlier would have been readily available, become lost or untraceable. Sometimes schools and healthcare practices close down.

The Home Office is not required to insist on evidence a child cannot supply. Its duties under section 55 of the Borders, Citizenship and Immigration Act 2009 and the 1989 UN Convention on the Rights of the Child ought to encourage it to be flexible so as to promote the child’s welfare and best interests.

Yet, Home Office practice is to the contrary. And inflexible and unreasonable Home Office practice is not limited to situations like that affecting Elaine.

Ricky is five. He too was born in the UK, at which time neither of his parents was settled or British. His father had limited leave as a highly skilled migrant, and Ricky’s mother was his dependant.

Since Ricky’s birth, his father has obtained indefinite leave to remain. However, his mother – with whom he lives – did not benefit from this as, by then, she had left the relationship due to Ricky’s father’s violence. She is still trying to regularise her stay.

Nonetheless, Ricky became entitled to be registered as a British citizen when his father became settled by virtue of section 1(3) of the British Nationality Act 1981.

Ricky’s problem was his father would not supply evidence of his indefinite leave to remain. This is not uncommon in the experience of PRCBC, especially, but not only, in cases of domestic violence. Someone did approach Ricky’s father at his mother’s request, but he refused to cooperate.

In such cases, the Home Office know the father’s status – they gave it to him. Their welfare and best interests duties ought to be all the encouragement needed for them to check and confirm such data. However, PRCBCs experience is that the Home Office regularly fails or refuses to confirm from its own records something a child is unable to establish.

Ricky’s case was resolved, and he is now registered as British. The Home Office did check its records – but only after Ricky’s mother was compelled to seek out evidence to confirm the domestic violence. Had she been unwilling or unable to do this, her son would still be unable to claim his citizenship. That would clearly not be in his best interests.

It is, of course, normal and generally appropriate to require evidence in support of legal claims. Citizenship registration is no different. However, the Home Office ought to be careful – particularly in children’s cases – to ensure such requirements are neither excessive nor used to deprive children of their citizenship rights.

But the Home Office is not so careful. Even children born British have been deprived of their right to a passport and recognition of their citizenship because of refusal to check records to establish the citizenship or settled status of a parent when the child was born.

In other cases, difficulties are raised over whether the child and parent are indeed related. The Home Office regularly insists on receiving DNA evidence – for which it will not pay – to establish the relationship, particularly over paternity. This can be prohibitive if either the father will not cooperate or the child’s parent or parents cannot afford the DNA test.

In some cases, the insistence on DNA testing can put mother and child at risk, such as where the father has a history of violence. This was so in one case where the Home Office had evidence of domestic violence, a birth certificate naming the father and a sworn statement from the mother about the paternity. In seeking his cooperation, the mother suffered an assault by the father.

Evidential requirements for a child to register by discretion under section 3(1) of the Act can be especially onerous. Here the child needs to sufficiently establish her or his connection to the UK, demonstrate that his or her future clearly lies in the UK and any other matters, such as the child’s best interests, to support the favourable exercise of the Secretary of State’s discretion.

This often requires extensive documentation of the child’s life in the UK – its duration, continuity and quality. Statements from family, friends and neighbours, baby books, reports and letters from schools and colleges, medical reports and photographs of and throughout their lives in the UK are among the evidence that may be needed.

In some cases, these difficulties are exacerbated by questions over the child’s very identity – such as where a child was brought to the UK, perhaps very young, on false documentation.

Legal aid is not available for citizenship applications. This may mean for some children certain evidence, such as DNA testing, is simply not available on grounds of cost. Many children must take on the task of collecting and collating evidence because they cannot afford to pay for legal assistance.

The absence of legal aid is yet one more reason why the Home Office ought to be far more attentive to its international and statutory duties to ensure children are not prevented from attaining British citizenship due to excessive evidential demands or for want of the Home Office checking its own records.

About Solange Valdez and Steve Symonds

Solange is solicitor and director of the Project for the Registration of Children as British Citizens and Steve is refugee and migrants rights programme director at Amnesty International UK

There are 3 comments

  1. Hi alex i have daughter she will be ten next month.problem is our gp change in 2011 .old gp delet appointment summary. So what can i do.

  2. Hi
    My 6 years old twins are not registered to my country. And they never been out from London.
    Our immigration case hearing date is on April 2018
    Our family supported by local authority.
    We have immigration restriction.
    We do not work at all.
    We do not have any savings.
    Then how could we can apply for my daughters British Citizenship?


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