This blog provides analysis of recent changes affecting children’s rights to be registered as British citizens with particular focus on fees and statelessness.
In June 2017, we wrote about the barriers to citizenship facing stateless children born in the UK. Five years on, there are important developments.
In this blog, we address two key changes.
The first change concerns some good news on the Home Office registration fee for children, including stateless children, to be registered as British citizens.
The second change concerns only stateless children. This is bad news. Additional hurdles have been introduced to the specific statutory right of stateless children to be registered as British citizens.
We start with some general points to help set the scene.
When the British Nationality Act 1981 took effect on 1 January 1983, the UK ceased to apply the principle by which anyone born on its territory would automatically acquire its citizenship.
Many children are now born in the UK without British citizenship – if at their birth neither of their parents is settled in the UK or a British citizen.
But many of these children grow up here as connected to the UK as any of their peers.
The 1981 Act, therefore, contains several statutory rights to citizenship by registration. These are intended to ensure that children, who grow up here and are thereby connected to the country, are not excluded from the citizenship of the UK.
Among these various statutory rights is a specific provision for a stateless child to be registered as a British citizen. That provision is found in Schedule 2 to the 1981 Act and confirmed by section 36 of the same Act.
To be registered under this provision, the child must meet four conditions. She, he, or they 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 be registered; and at the date of the 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).
We explain below the new additional conditions for some stateless children to meet. It is important to remember, however, that other statutory rights of registration as a British citizen may also apply to stateless children – so if there is a barrier to being registered under the specific stateless provision, the child may still be able to be registered under another.
With that introduction, let’s start with the good news…
Fee for registration as a British citizen
The Home Office fee for a child to be registered as a British citizen is £1,012. The former Home Secretary rightly described this as a “huge” sum of money – though he didn’t do anything about it.
After years of campaigning work and, most importantly, a long court challenge brought by the Project for the Registration of Children as British Citizens (PRCBC), there is finally some positive change to the fee.
Firstly, children who are looked after by a local authority have been made exempt altogether from the fee to be registered as a British citizen.
Secondly, children who can satisfy the Home Office that they are unable to afford the fee are eligible for it to be waived.
These changes each took effect from 16 June 2022. They apply to registration of any child, including children who are stateless.
The Home Office impact assessment on these changes indicates it expects the new exemption and waiver to enable thousands more children to exercise their rights to British citizenship by registration.
That is very welcome. Whether that expectation will be fulfilled will, however, depend on there being sufficient awareness raised about the changes and the rights to which they relate. It will also depend on the Home Office operation of the waiver – the length and complexity of the fee waiver form it has published is a cause for concern.
Moreover, the continued charge of £1,012 remains an unacceptable barrier to many children – a barrier that the Supreme Court has simply left for politicians to address.
No child should be subject to such a high fee – or any fee set above the estimated cost of the administrative process of registration – for their right to citizenship of the country to which they are connected and entitled in law.
But now for the bad news…
New barriers to registration of stateless children as British citizens
The specific provision for stateless children to be registered as British citizens was amended on 28 June 2022.
The provision for stateless children is now in paragraph 3A of Schedule 2 to the 1981 Act. Paragraph 3 of that Schedule now only applies to young stateless adults.
Under paragraph 3A, in addition to the four conditions summarised above, a stateless child will also need to satisfy the Home Office that she, he or they cannot acquire the nationality of one or other of their parents.
This additional condition only applies if the laws of either parents’ country of nationality provide the child a right to that nationality, the child has had this right continuously from birth and it is reasonable to expect the child to take the steps necessary to acquire that nationality.
It is important that this right to the parent’s nationality must be by way of entitlement. If there is only a discretion that may allow the child to acquire that nationality, this should have no effect upon the child’s right to be registered as a British citizen – unless, of course, the child does acquire that other nationality.
Under paragraph 3 of Schedule 2, young stateless adults have only to meet the same four conditions summarised above. The additional condition does not apply.
It remains to be seen how many children may be subjected to prolonged statelessness in the UK as a result of this change.
More stateless children may need to exercise other statutory rights to be registered as British citizens – such as the entitlement under section 1(3) of the 1981 Act to be so registered if one of their parents becomes British or settled, or under section 1(4) if the child continues to live in the UK up to their tenth birthday (allowing for some absences).
However, it is arguable that the best interests of a child born and growing up in the UK are not met by expecting that child to acquire the nationality of another country that she, he or they have never known or visited.
A stateless child’s registration application can be expected to turn on its own particular facts, but a blanket expectation that any child, who can acquire another nationality by right, should do so rather than be registered as a British citizen cannot be compatible with the duty to have regard to children’s best interests in section 55 of the Borders, Citizenship and Immigration Act 2009.
Many stateless children – as well as children who are not stateless – should benefit from the new registration fee exemption and waiver.
However, the barriers to many children securing their citizenship rights in the UK remain and there is no consistent effort on the part of the UK Government to remove these.
As we have previously warned, this is causing serious harm to children. It also raises profound constitutional concerns regarding the inaccessibility of citizenship rights.