No state to be in

Children living in this country with no nationality face a barrage of financial and legal obstacles to end their statelessness, say Solange Valdez-Symonds and Steve Valdez-Symonds

Emily was born in the UK to parents who were not settled or British citizens. She was not, therefore, born British. The law of her mother’s country of nationality precluded the passing of that nationality by mothers to their children born outside that country – a discrimination once also found in British nationality law. The law of her father’s country of nationality required the completion of a registration process for Emily to have that nationality. That opportunity was time limited. Emily’s father took no interest in her and no steps were taken to register her with that nationality within the time period.

Emily is now seven. She has lived in the UK all her life. Although she could have been registered with her father’s nationality, she has never held a nationality. It is important to distinguish those who have a nationality, but may need to take steps to obtain confirmation of this, from those who do not have a nationality. The latter, like Emily, are stateless.

Millions of people around the world are stateless – meaning no country recognises them as possessing its nationality. They, therefore, have no nationality to pass on to their children.

The UK is a party to the 1961 Convention on the Reduction of Statelessness. The Convention enjoins nation states to prevent people becoming stateless and end statelessness of others. UK law primarily seeks to give effect to this by section 36 and schedule 2 of the British Nationality Act 1981.

Among various provisions in schedule 2 is paragraph 3. It provides stateless children born in the UK a right to register as British citizens.

To qualify to register as a British citizen under paragraph 3 of schedule 2, a person must meet several conditions. She or he must be born in the UK, be stateless at birth and ever since, and under the age of 22. At the date of submitting their registration application, they must have been living in the UK throughout the last five years with no more than 450 days absence during this period.

Paragraph 6 of schedule 2 empowers the Home Secretary to treat the residence requirement as met where the person has been absent for more than 450 days if ‘special circumstances’ are shown. Paragraph 3 applies in a similar way to stateless children born in a British overseas territory, such as Bermuda and Gibraltar (a full list of such territories is provided in schedule 6 of the 1981 Act).

Emily meets all the conditions for paragraph 3 registration. She is entitled, therefore, to register as a British citizen. However, whether Emily will be able to do so is another matter.

She is in a better position than many children in similar circumstances. Many children, and their parents or carers, may have no idea they are stateless and are not British already. Stateless children may not discover otherwise until they need to prove their status or come to apply for a British passport. This might not happen until they are approaching adulthood, or even later.

Even when stateless children access legal advice about their status, many advisers are not aware of the right to register citizenship under paragraph 3 of schedule 2 – or indeed other rights to register under the 1981 Act. Some advisers do not consider nationality law, focusing solely on immigration law and applying for leave to remain. Yet a child granted leave to remain for 30 months, requiring repeated renewals, each with a large application fee, remains subject to immigration control and in a far more precarious position than a child registered as British.

Emily and her mother have sought legal advice. They at least know she is stateless and are aware of the right to register as British. But there are further barriers to doing so.

Emily will need to provide evidence to show she meets the conditions required by paragraph 3 of schedule 2. Although she has a birth certificate to show her birth in the UK, she will need to separately prove her identity to confirm the birth certificate relates to her. Being stateless, some sources of identification such as a national passport are not available to her.

A further difficulty will be proving she is, indeed, stateless. Emily will need to satisfy the Home Office she does not have any nationality, and this will normally require her to identify her parents, their nationalities and show she does not have any of their nationalities. For children estranged from one or both parents, this may not be possible – either because the parent cannot be traced or is uncooperative.

Where parents’ nationalities are established, expert evidence on the nationality laws of the countries in question may be necessary – although the Home Office may be able to confirm through consular or other contacts that a child does not have her or his parent’s nationality.

Even with all the necessary evidence available, Emily may still be effectively blocked from registration as British if she cannot afford the Home Office fee. There is no waiver or exemption available, and the registration fee is currently £973 for children (£1,163 for adults). The Home Office asserts the cost of handling these registration applications is £386, so most of the fee is essentially profit.

It is scandalous that any child can be blocked from securing the citizenship to which she or he is entitled by such a fee. That this can happen to a stateless child is especially shocking.

As readers of the authors’ previous articles on registration will recognise, lack of awareness, evidential hurdles and fees are all barriers similarly faced by other children with entitlements to British citizenship. For them, as for stateless children, absence of legal aid for advice and assistance on registration applications (unless exceptional cases funding is granted) compounds these barriers.

Ensuring that stateless children born in the UK can access their right to register as British is not only a matter of compliance with the UK’s obligations under the 1961 Convention. It is also a matter of children’s best interests and compliance with Article 7 of the 1989 UN Convention on the Rights of the Child. The UK is currently failing its international and domestic duties to these children by not removing or mitigating the barriers discussed in this article – such as by providing legal aid, removing the profit-element to the fee and providing a fee waiver and taking steps to reduce evidential barriers.

Those assisting stateless children need to be more alert to the right to register discussed here. Local authorities and others with responsibility for these children need to be scrupulous in identifying statelessness and securing information and documents concerning children’s and their parents’ nationalities and statuses.

Where a stateless child born in the UK is unable to access the right to register under paragraph 3 of schedule 2, there may be alternatives. For example, if the child lives in the UK for the first 10 years of her or his life, this will generate a separate entitlement to register as a British citizen under section 1(4) of the 1981 Act. Importantly, there is no age cut-off for exercising this entitlement. However, unlike registration under paragraph 3, there is a requirement of good character for registration under section 1(4).

Stateless children not born in the UK, like other children, may also seek to register as British under section 3(1) of the 1981 Act. Section 3(1), however, does not provide an entitlement, but rather empowers the Home Secretary with discretion to register a child as British if their future clearly lies in the UK.





About Solange Valdez-Symonds and Steve Valdez-Symonds

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

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  1. Pingback: Guest post: the fee for children to register their British citizenship is the next Windrush scandal - Free Movement

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