Local authorities fail to act over children’s citizenship

Even councils which understand the importance of resolving the immigration status of young people in their care, may not realise when a child has the right to register as a British citizen. Solange Valdez and Steve Symonds have previously written for Legal Voice on several issues relating to children’s right to register as British citizens. Here they consider the situation of children in local authority care.

Registration for British citizenship is a key concern for a significant number of children in local authority care. This is a complex area because the circumstances of these children and the legal provisions under which they may register their citizenship are many and various.

The importance of local authorities being alert to these matters and ensuring children receive specialist advice and assistance to resolve them is getting more attention. Nonetheless, citizenship registration remains an area on which awareness and understanding is lacking even among many lawyers working with these children.

All too often – even where attention is given to children’s immigration status – the right to register citizenship is missed. Focus may be on whether the child has leave to remain. But a child may be able to register as British, whether or not she or he has such leave. If so, securing citizenship – to which some children are entitled – will be vital for the child’s development and future.

Heather spent many periods in local authority care from the age of five, having been brought to the UK at six months old. She came on a British passport, issued by the relevant authorities. However, when she sought to renew her passport, aged 14, she was told it had been cancelled. At this time, she was again taken into care.

When she was 18, a voluntary organisation referred Heather to the Project for the Registration of Children as British Citizens (PRCBC). Despite having lived in the UK virtually all her life – and being assisted by a local authority well aware her citizenship and immigration status had been brought into question – this referral was the first positive step anyone had taken to resolve these matters. At the time, Heather was pregnant.

Heather could have applied to register as a British citizen under section 3(1) of the British Nationality Act 1981 at any time up to her 18th birthday. She would have had a strong application to make because the UK is clearly where her future lies and she has lived here so long.

But now an adult, Heather has lost her right to apply. Not only is this a serious loss for her, it has potential implications for the child to whom she is due to give birth. Had she been registered, her child would acquire British citizenship at birth under section 1(1) of the Act.

Although it would notionally be possible for her child to be born British if Heather could attain indefinite leave to remain before the birth, she does not meet the requirements under the rules for that status. An application can be made outside the rules, but its success is far from guaranteed; and, with so little time to prepare the application, put together supporting evidence and collect funds to pay the £1,875 fee, it is highly unlikely Heather can secure this status before her child is born.

Her child is almost certainly later going to be entitled to register as British. One way that may happen is under section 1(3) of the British Nationality Act 1981 if Heather later becomes British or settled (ie attains indefinite leave), and her child is still under 18. But the child’s registration would require a fee, which is currently £936.

Heather’s story highlights some of the profound consequences if a local authority fails to assist a child to register as British. These consequences can affect both childhood and later life.

Citizenship is an important aspect of a child’s identity. Children who discover – sometimes to their shock – that unlike their peers, they are not British, may be or feel inhibited or marginalised. This can be exacerbated by tangible impacts of not having British citizenship. For example, without entitlement to a British passport, a child may be unable to travel overseas on school or other excursions.

Children may face other exclusions and risks if left without such citizenship – for example, being unable to access employment or rented accommodation. At worst, they may lose an entitlement to citizenship altogether, or face detention and deportation to a country they do not know.

These risks often increase as children near adulthood, but may also arise at a much younger age. As discussed in a previous article for Legal Voice (here), the current application of the ‘good character’ requirement in cases of children seeking to register as British affects children from age 10.

In recent years, the Local Government Ombudsman has ruled against at least two local authorities (reports numbered 13 019 106 and 15 015 327), recommending they pay compensation to children failed in similar ways to Heather. In one case, the ombudsman also recommended the local authority undertake a thorough review of its practice. One ruling concerned immigration status; the other British citizenship.

In PRCBC’s experience, some – though not all – social workers are becoming more aware of the need to support children to address immigration and citizenship status. However, several problems remain.

While local authorities should be ensuring children in their care receive appropriate advice and assistance on entitlement to British citizenship or a right to apply, this needs to be delivered by competent and specialist lawyers. These are not always easy to find.

Local authorities need also to understand it is insufficient to satisfy themselves that a child in their care has leave to remain. They must also consider whether a child is or may become entitled to British citizenship because with that status the child acquires a range of rights and opportunities – including the future possibility of passing on citizenship to their own children – far beyond those provided by having leave to remain.

In some cases, children may already be British, yet their citizenship remains to be formally recognised by the Home Office. For children who are not British – particularly those born in the UK, those who arrived here at a young age or others whose future clearly lies here – the circumstances in which they may be entitled to register or apply for citizenship are various and complex.

All these situations need evidencing. As discussed in Legal Voice previously (here), collecting and collating evidence can itself be complex and expensive. This tends to get more difficult, the longer time passes without collecting the relevant evidence.

And then there are fees. As also discussed previously in Legal Voice (here), Home Office fees for children to register their British citizenship are scandalously high.

There is much for local authorities to do and the support they receive from central government is very far from adequate. The Ministry of Justice does not generally provide legal aid for children to receive advice on registration; and the Home Office offers no waiver for its fees. These are all costs to local authorities in fulfilling their obligations to children and, for example, avoiding further ombudsman complaints.

It is high time central government addressed these and other barriers facing many children – already disadvantaged by circumstances that led to their being in care – in securing British citizenship to which many are entitled. Family courts should also be alert to the possibility of directing local authorities in relevant cases to take steps to ascertain and address any right to register a child may have.

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

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