Stateless children born in the UK have a right to register as British citizens after living here for a continuous period of five years. But various practical hurdles undermine this vital provision for reducing statelessness. The UK is, therefore, falling short in respect of its obligations regarding both statelessness and children’s best interests.
To register under paragraph 3 of Schedule 2 to the British Nationality Act 1981 a stateless person must meet four conditions. She or he must be born in the UK; have always been stateless; be under the age of 22 and living in the UK at the time of applying to register; and at the date of application have spent the last five years living in the UK (with no more than 450 days absence during this period unless ‘special circumstances’ are shown).
If these four conditions are met, the applicant is entitled to British citizenship when she or he applies.
However, having an entitlement to something is not the same as being able to claim it.
The first hurdle is that many children born in the UK may have no idea they are stateless and not British citizens already. Unless and until they apply for a passport or need to prove their status in the UK, there is no reason why they would know. Some may not discover their status until shortly before adulthood or even much later.
The second hurdle, however, is ignorance about the right to register as British. Even where a child or young person is able to access legal advice, too often advisers are not aware of this right to register citizenship – or indeed other rights to register – under the 1981 Act.
Some advisers only consider applying for leave to remain, too often because the distinction between nationality and immigration law is either ignored or misunderstood. This can prove to be disastrous, as well as expensive. Even where a child is granted leave to remain, this is likely to be for a temporary period of 30 months requiring repeated renewals each time with a large application fee. Of course, while the child only has leave, she or he remains stateless with all the serious restrictions and uncertainty that comes with being subject to immigration control.
Worse, the right to register under paragraph 3 of Schedule 2 is time limited. Once the child turns 22, if no application has been made this right is lost forever. There is generally no good reason to delay registration where a child has and wishes to exercise her or his right to do so if the conditions of paragraph 3 are met.
Should a stateless person miss the opportunity to register by turning 22, section 1(4) of the 1981 Act may provide an alternative. It provides a right to register as British to those born in the UK, who live here for the first ten years of their lives. There is no age cut-off by when this right must be exercised. However, an applicant under section 1(4) must be of good character whereas an applicant under paragraph 3 need not.
The third hurdle is evidential. While the conditions to be met in applying under paragraph 3 are limited, they include several which may prove problematic.
The child or young person will normally be able to access a birth certificate showing their birth to be in the UK. But the Home Office will require further evidence of her or his identity, which may be less than straightforward for stateless children.
The Home Office also expects evidence that applicants have been living in the UK for the past five years and without excessive absences – even though their statelessness make it less likely someone could have left the country (or returned).
An applicant will also need to show he or she is stateless. Home Office guidance indicates decision-makers will want to see letters from the national authorities of each parent confirming the child or young person is not and has never held their nationality. Such requirements can become especially difficult to meet if a parent cannot be identified, contacted or is unwilling to help. Children in care or whose parents are estranged may have particular difficulties.
These evidential hurdles tend to get worse the longer time goes on. For example, social services stand a far better chance of securing evidence about a child’s status and that of their parents when a child is taken into care than several years later. This concern is one reason why family courts should 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.
The fourth hurdle is the fee. Currently, the fee for a child to register as British is £973; an adult must pay £1,163. The Home Office claims the unit cost of administering these applications is £386. A child applicant must pay an additional £80 if her or his registration is accepted after she or he turns 18. This is for the citizenship ceremony the young person will need to attend. These fees are regularly raised, often with almost no notice.
British citizenship in these cases is an entitlement, yet the Home Office is making hundreds of pounds above cost each time a child or young person seeks to register their right. The Home Office offers no waiver or exemptions.
An additional hurdle, which compounds the others, is that legal aid is not available for advice and assistance on these registration applications (unless exceptional case funding is granted). Children need specialist legal help to recognise their entitlement, identify the evidence required, instruct experts where necessary (an expert may be necessary to show a child does not have her or his parent’s nationality) and prepare an application. Without legal aid, many children are simply unable to secure the necessary help and expertise.
These hurdles should each be removed or mitigated. Legal aid ought generally to be available to children and young people to ensure they can end their statelessness by registering their right to British citizenship. They should not be obstructed from doing so by a fee, and certainly not one in excess of the cost of administering an application even assuming the child has access to some funds.
While the need for evidence cannot be avoided, the Home Office must ensure its policy and practice does not impose unreasonable demands on applicants. The Home Office ought, for example, to be willing to confirm someone does not or cannot have another nationality where it can do so (e.g. by enquiries made via overseas posts) – particularly where the applicant is a child as to do so will be in her or his best interests. Other evidential hurdles could in part be mitigated if legal aid was generally available and adequately funded.
Stateless children not born in the UK may, like other children, seek to register as British citizens at the Home Secretary’s discretion under section 3(1) of the 1981 Act if their future clearly lies in the UK.
Paragraph 3 of Schedule 2 also applies to stateless people born in a British overseas territory such as Bermuda or Gibraltar (see Schedule 6, as amended, of the 1981 Act for full list of countries). Schedule 2 of the Act includes other measures to reduce statelessness affecting people not born in the UK.
Solange Valdez-Symonds is solicitor and director of the Project for the Registration of Children as British Citizens (PRCBC) and Steve Valdez-Symonds is refugee and migrant rights programme director at Amnesty International UK.The authors are grateful to Cynthia Orchard, legal policy officer at Migrants Resource Centre (MRC), for comments on a draft of this blog.
For further information, please contact
Project for the Registration of Children as British Citizens (PRCBC)
PRCBC is a registered charitable company and hosted by Migrants Resource Centre.