Registration as a British citizen: children born outside the UK

British nationality law is extremely complex. Children who are born outside the UK will only acquire British citizenship from their parents in certain circumstances. Those who do not may be able to register as a British citizen. Our Solicitor Carla Mirallas Martinez reviews the circumstances when this may be possible.

If a child born outside the UK is not automatically a British citizen when they are born, it may be possible to register them as a British citizen. Section 3 of the British Nationality Act 1981 sets out the circumstances when they may be able to register.

Registration as a British citizen under section 3(5) of the British Nationality Act

For children born outside of the UK, consideration should first be given to whether they have an entitlement (i.e. a legal right) to register as British under section 3(5) of the British Nationality Act 1981.

This provision applies to children born abroad to a parent who is a British citizen by descent, but where the family is now living in the UK or a qualifying British territory.

It is possible for a child under the age of 18 to register as a British citizen on the basis of section 3(5), providing that the following requirements are met:

• they were born outside of the UK;
• at the time of their birth they had a parent who was a British citizen by descent;
• the child’s mother and father must have lived in the UK for a three-year period ending on the date that the application is received by the Home Office;
• the child must also have lived in the UK for the same three-year period;
• the child and their parents must not have been absent from the UK for more than 270 days during the three-year residence period and must be physically present in the UK at the start of the three year qualifying period;
• the consent of both parents must be given to the application in writing; and
• if aged ten years or older, the child is of good character.

No discretion is applied to the 270 day absence limit in the three years leading up to the date of the application.

It is important to note that this section applies solely to ‘legitimated children’. Meaning that if the child was born before 1 July 2006, and their parents were not married at the time, the child may only rely on their mother’s citizenship, unless their parents subsequently married.

For those children born on or after 1 July 2006 whose parents were not married, the mother will be relevant and the father also, so long as he satisfies the definition of father.

For British nationality purposes, the following meet the definition of father:

• the mother’s husband, if any, at the time of the child’s birth;
• any person who is treated as the father under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008;
• a person who is treated as a parent of the child under section 42 or section 43 of the Human Fertilisation and Embryology Act 2008 (second female parent); or
• if none of the above applies, a man who can be proved to be the father by the production of either:
  • a birth certificate identifying him as such, issued within 12 months of the birth of the child (where the birth was registered before 10 September 2015); or
  • other evidence, such as a DNA test report, court order or birth certificate that demonstrates paternity.

British citizenship otherwise than by descent will be given to a child registered under section 3(5). This means that they could pass on their citizenship to their child, even if born outside the UK.

Registration under section 3(2) of the British Nationality Act

Under section 3(2) of the British Nationality Act, a child under the age of 18 on the date of application can apply to register as a British citizen, providing that the following requirements are met:

• they were born outside of the UK on or after 1 January 1983 (or outside the UK and qualifying territory or on after 21 May 2002) to a parent who was British by descent;
• the child’s grandparent was a British citizen otherwise than by descent either on 1 January 1983 or at the time of the parent’s birth, or became such on 1 January 1983;
• the parent who is British by descent must have lived in the UK for a continuous period of three years at any time prior to the child’s birth and was in the UK at the beginning of the qualifying three-year period;
• during the three-year period, the parent must not have absences from the UK exceeding 270 days; and
• if aged ten years or older, the child is of good character.

It is important to note that the three-year period of residence relevant for this section does not have to be that leading up to the date of submission, therefore families who no longer live in the UK can still consider this option.

If a child has an entitlement under section 3(2), they will obtain British citizenship by descent. This means that their entitlement to British citizenship can usually only automatically descend to one generation born overseas. Therefore, if a child meets the requirements under sections 3(5) and 3(2), it may be preferable to apply under section 3(5), if possible.

Other registration routes – Sections 4D, 4G and 4F of the BNA 1981

There are other registration routes which may be open to the children of British mothers or fathers.

Section 4D applies to children born outside the UK to a parent serving in the armed forces. Sections 4F to 4I of the BNA 1981 came into force on 6 April 2015. These provide a number of registration routes for those born who would have automatically become British citizens or would be entitled to registration under other provisions of the BNA 1981, had their parents been married at the time of their birth.

Section 4D
Under section 4D of the BNA 1981, a child under the age of 18 on the date of application can apply to register as a British citizen, providing that the following requirements are met:

• they were born outside the UK and the qualifying territories on or after 13 January 2010;
• at the time of their birth, either their father or mother was a member of the armed forces and serving outside the UK and the qualifying territories; and
• if the child is under 18 on the date of the application, both parents have consented to the application. If the child’s father or mother died before the date of the application, only the other parent needs to consent. In special circumstances, the Home Secretary can also waive the need for parental consent.

Section 4F
Applicants would have an entitlement to register where they would have been entitled to register as British under sections 3(5) or 3(2), had their mother been married to their father at the time of their birth. Applicants will need to demonstrate that they meet all the requirements under any of the sections mentioned above.

Whether the application can be made as an adult, or a minor, will depend on what the requirements would have been under the relevant section of the BNA.

Parental consent of both parents is required when applying under section 3(5).

Section 4G
This section applies to those who would have become British automatically if their parents had been married.

Applicants would have an entitlement to register under this section if:

• they were born after 1 January 1983;
• their mother was not married to the natural father;
• they have never been a British citizen;
• they would have become a British citizen automatically if their parents had been married at the time of their birth; and
• if they are under 18 at the date of application, both parents have consented to the registration.

Discretionary applications – Section 3(1) of the of the BNA 1981

If a child does not have an entitlement to register as a British citizen on the basis of any of the sections described above, they may make a discretionary application under section 3(1).

There are minimal statutory requirements:

• the child must be a minor at the date of application;
• if aged ten years or older, the child is of good character; and
• the Home Secretary thinks it fit to register them.

This leaves the Home Secretary wide room for discretion and, as such, each case will be assessed on its own individual merits. The Home Office guidance covers many specific scenarios. If an application does not fit in any of the specific scenarios, an application can still be made under section 3(1), but it will be considered with reference to various factors.

The Home Office advise that a child will only be registered under this route when it is in the child’s best interests, and they have a strong connection with the UK. The following factors will generally be taken into account:

• the child’s future intentions;
• the child’s parents’ circumstances;
• residence in the UK;
• the child’s immigration status; and
• any compelling compassionate circumstances raised as part of the application.

Children adopted abroad

Special consideration needs to be given to children adopted abroad, and the decision in such cases will depend very much on the circumstances of the adoption.

Children born in the UK

It may also be possible for a child born in the UK to register as British. We consider the options available in more detail here.

Parent applying for citizenship

If a parent is applying for naturalisation as a British citizen and has included a child’s application with their application, the child may be entitled to registration under one of the previous entitlement provisions, even if the parent’s application is refused.

Parental consent

Parental consent is a legal requirement for some registration routes such as under section 3(5). Even where is not a statutory requirement, the Home Office normally expects the parent’s consent to be provided.

Impact of registration on other nationalities

It is important to note that the UK allows dual nationality but not all countries do so, therefore, this needs to be considered carefully.

Registration as a British citizen: How our Immigration Solicitors can help

Applications for registration for children, particularly on a discretionary basis, can be challenging. We are experienced in advising on and preparing applications to register as a British citizen for children born overseas.

If you require a review of your circumstances in order to establish whether you may be entitled to register a child as British, or if you require legal advice about an application, please contact us for an initial discussion with one of our immigration specialists or make an enquiry below.

This article was originally published in June 2019 and is accurate as of the new date of publication shown. 

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