24 Feb How can a child be British?
A child born in the UK is not automatically entitled to British citizenship. However, a child born in the UK will be British “by birth” if born after one of the parents has become either a British citizen or settled in line with 1(1) of the 1981 British Nationality Act.
1(1) A person born in the United Kingdom after commencement [or in a qualifying territory on or after the appointed day] shall be a British citizen if at the time of the birth his father or mother is—
(a)a British citizen; or
(b)settled in the United Kingdom [or that territory].
Acquisition by descent
2(1) A person born outside the United Kingdom [and the qualifying territories] after commencement shall be a British citizen if at the time of the birth his father or mother—
(a)is a British citizen otherwise than by descent;
According to the Section 2(1), a British citizen “otherwise than by descent” can pass his nationality to a child born outside the UK and the child will automatically acquire British citizenship “by descent”.
A British citizen by descent cannot automatically pass citizenship to a child born outside the UK if the parent in question is a ‘British citizen by descent’, and the child will need to register for the citizenship.
“For children born outside the UK, you must first consider whether the person has an entitlement under section 3(5) of the British Nationality Act 1981, which gives British citizenship otherwise than by descent. You must then consider whether there is an entitlement under section 3(2). If no entitlement exists, you must consider the application under section 3(1).”
(2) A person born outside the United Kingdom [and the qualifying territories] shall be entitled, on an application for his registration as a British citizen made [while he is a minor], to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person’s father or his mother (“the parent in question”).
(3) The requirements referred to in subsection (2) are—
(a)that the parent in question was a British citizen by descent at the time of the birth; and
(b)that the father or mother of the parent in question—
(i)was a British citizen otherwise than by descent at the time of the birth of the parent in question; or
(ii)became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and
(c)that, as regards some period of three years ending with a date not later than the date of the birth—
(i)the parent in question was in the United Kingdom [For a qualifying territory] at the beginning of that period; and
(ii)the number of days on which the parent in question was absent from the United Kingdom [and the qualifying territories] in that period does not exceed 270.
Under 3(2), whilst birth abroad to a British citizen “by descent” will not automatically lead to British citizenship, it is still possible to apply for child’s registration before their 18th birthday if the British parent has lived in the UK for a continuous period of three years at some time before the child’s birth. The parent must not have been absent from the UK for 270 days or more over the chosen three-year period.. However, one of the grandparents must have been a British citizen otherwise than by descent.
Alternatively, if the child and both of parents (one of whom is British “by descent”) were to have lived in the UK for a continuous period of three years after the child’s birth abroad, then an application could be made under 3(5). The child and parents must not have been absent from the UK for more than 270 days during the three-year period.
Registration of children
- Parent becomes British or settled after the child’s birth in the UK
1(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [(1A)] or (2) [or section 10A] shall be entitled to be registered as a British citizen if, while he is a minor—
(a)his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b)an application is made for his registration as a British citizen.
Children are entitled to register if either one of their parent becomes a British citizen or settled in the UK and their application is made when a minor.
- Parent becomes British or settled after the children born outside the UK
3(1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.
If your child were to be born overseas and neither of the parents has British citizenship or is settled at that time, the child could still rely on section 3(1) for registration application after one of the parents is granted British citizenship or settlement. Moreover, section 3(1) allows for any child to be registered as a British citizen, upon application, at the discretion of the Secretary of State.
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