A person born in the UK may have the right to register as a British citizen under Section 3 (1), Schedule 2 of the British Nationality Act 1981, even though his or her parents do not have lawful permission to be in the UK.
The point was considered by the High Court in the case of The Queen on the application of MK and The Secretary for the Home Department on 28 February 2017, EWHC 1365 (Admin) ("MK case").
In MK, the Indian parents of an applicant born in the UK were in the UK as overstayers, challenged the Home Office's decision to refuse the registration of their child as a British citizen. The child in question had lived in the UK for more than 5 years but had never travelled to India.
Paragraph 3 of Schedule 2 to the British Nationality Act 1981 states:
"3. (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely
(a) that he is and always has been stateless; and
(b) that on the date of the application he was under the age of twenty-two; and
(c) that he was in the united Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.
(2) A person entitled to registration under this paragraph –
(a) shall be registered under it as a British citizen if, in the period of five years mentioned in sub-paragraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British Overseas Territories;
(b) in any other case, shall be registered under it as a British Overseas Territories citizen."
The issue before the court was whether the applicant was 'stateless' - this required consideration of whether he was an Indian citizen.
Indian law requires a child born outside of the UK after 3 December 2004 to be registered, if one parent is Indian and the child has not travelled to India.
The question is not answered by the possibility that the law of a country allows it, but the process for which the individual must go through to acquire it.
The Home Secretary requires an individual to establish their claim - the fact that nationality has far reaching benefits or consequences - to a relatively high standard, but not one which becomes impossible for the individual to fulfil.
In the MK, the Home Secretary required 'confirmation from the Indian authorities..... that C's birth has not been registered in accordance with Indian law and that she is not a national of India'.
The court considered whether an affidavit from the parent was enough or a letter from a consulate and concluded in the absence of any criteria it possibly was. It was then left for the Home Office assuming the application was granted, to check whether this had been obtained by fraud at any time.
Implication of the decision
For children born in the UK with Indian born parents, a certificate of non-acquisition from the Indian government is enough. However, this could vary from country to country - the Home Office do not have specific criteria, which means this is left open.
It is worth speaking to an immigration solicitor if you are an Indian national or indeed another national in this situation. It may be possible to register as a British if an individual was born in the UK, is under the age of 22 and is stateless.
British nationality is a complex area of law and an individual should seek legal advice to explore all options, particularly if they were born and resided in the UK.
Information on other routes to obtaining British citizenship can be viewed by clicking here.
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