immigration

Being British is one thing – proving it is another

In the wake of post-Brexit fears for the future of EU citizens in the UK, lawyers should be aware that many of these children are already British, or can become citizens by right, write Solange Valdez-Symonds and Steve Valdez-Symonds

The prospect of European citizens, and their third country national family members, losing their rights to stay after the UK leaves the European Union has prompted many people to think about whether they can naturalise as British citizens. But more attention should also be given to registration and acquisition. These are distinct from adult’s naturalisation, which is not addressed here. Unlike naturalisation, registration is available to children, under 18 years of age, as well as some adults; and in many cases available as of right.

Some people – including many children – whose future in the UK has been made so uncertain following last year’s referendum, and the triggering of Article 50 this year, may in fact already be British. Others may be entitled to register as British. In this, the fifth in a series of articles for Legal Voice, the authors highlight how registration of British citizenship may now be a critical consideration for European citizens and their family members.

Amanda is one such person. Her Italian mother came to the UK to work more than two decades ago. A few years later, Amanda was born here. She lived with her mother for many years. However, when she first contacted the Project for the Registration of Children as British Citizens (PRCBC) she had been in local authority care for about five years. She was nearly 18. At this time, Amanda remained undocumented: she had no evidence of a right to reside; was without leave to remain; and without British citizenship (or, as is touched on below, at least not recognised as having British citizenship).

In our previous articles, we highlighted many challenges to securing rights to British citizenship. These are as relevant to children like Amanda, whose parents are or were in the UK under European free movement, as they are to other children.

If a parent is British or settled when a child is born here, she or he will be British by birth under section 1(1) of the British Nationality Act 1981. ‘Settled’ means having permanent residence, a status only available to people exercising European free movement rights, or indefinite leave to remain.

Children born in the UK are entitled to register as British under section 1(4) of the British Nationality Act 1981 if they live here for the first 10 years of their lives. Under section 1(3) of the Act, they will also be entitled to register as British, but only while they remain a child, if either of their parents becomes British or settled. Children not born in the UK may apply to register at the Home Secretary’s discretion, again while they’re still children, under section 3(1) of the Act on the basis that their future clearly lies in the UK.

In each of these cases, a child aged 10 years or older must be of good character to be registered. Obtaining and retaining documentary evidence, relating to the parents as well as the child, is often critical for a child to be able to exercise her or his right to citizenship.

Under EU law, permanent residence is generally acquired when someone has exercised European free movement rights for five continuous years. Some people may acquire this right at an earlier time. People do not need to apply for this status and are not required to obtain any documentation of it.

However, as many European citizens and others are now discovering, having a status may count for little if you cannot prove it. Documentary evidence is available from the Home Office in the form of residence cards or documents. While the Home Office has reminded people they are not required to obtain these, there are many good reasons for European citizens and family members to do so at this time. One of those reasons is that these documents may be vital evidence of their children’s right to British citizenship.

Amanda’s case highlights that important though such documentation can prove to be, it is not always required for registering a child as British. Amanda did not have access to any residence card or document for her mother. Ultimately, she was able to register under section 1(4) on the basis of having lived in the UK from the time of her birth up to her 10th birthday. The status of her mother was not relevant to registration under that particular provision.

Still, Amanda’s registration required hours of work in collecting evidence to prove she had lived continuously in the UK over these years. Her birth certificate, baby book, medical records, and letters from schools, hospital and social services were all key to evidencing her residence and securing her citizenship. It also required a registration fee of £936 (now increased to £973).

Registration could have been easier had her mother held a permanent residence document. With such a document, Amanda could have more easily registered as British under section 1(3). Not that the document is strictly necessary. The requirement is for the child to have been born in the UK and for a parent to have become British or settled. If evidence shows a parent to have exercised European free movement rights for five continuous years, that would demonstrate the parent to be settled and the child’s entitlement to register whether or not the parent had a permanent residence card or document.

Another feature of Amanda’s case is that she may well already have been British. She was born before 2 October 2000. If her mother was exercising European free movement rights at that time, Amanda was born British. This is because before that date, anyone exercising those rights in the UK was treated as settled. After that date, to be settled, a person exercising those rights either needed to have permanent residence or have indefinite leave to remain.

Amanda did not have evidence to show that when she was born her mother was exercising European free movement rights. She could not, therefore, establish that she was British at and by her birth.

While Amanda is now registered as British, her case demonstrates the risk some children face of losing this right for lack of evidence of a parent’s status, continued presence and, for example, employment, self-employment or job-seeking, in the UK. As in other cases, delay in collecting evidence can make it far harder to get the evidence together when years later it may become critical to do so.

While the UK and most other countries within the European Union (EU) and European Economic Area (EEA) permit dual nationality, some countries do not. Registering a child as British could cause the child to lose his or her other nationality if the relevant country does not permit dual nationality. Embassies and High Commissions of the countries in question should be able to confirm whether or not they permit this.

The authors are grateful to Matthew Evans, director of the AIRE Centre, for reviewing a draft of this article.

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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