Immigration Status UK
Essentially, answering the above questions requires an understanding and application of a variety of laws such as the British & Nationality Act 1981, the British Overseas Territories Act 2002, also renamed the British Dependent Territories, British Overseas Territories and people became the British Overseas Territories citizen after 26 February 2002. On the 21 May 2002 these citizens also became British Citizens with a right of abode in the United Kingdom, with the exception of those connected with the Sovereign bases.
Understanding which application is right for you?
From the 1 January 1983, under the British Nationality Act 1981 nationality could be obtained in three ways:-
1. By Law
At present there are a number of types of British national currently that existence: British Subjects, British Overseas Territories Citizen, British Overseas Citizen, British Nationals (Overseas), British protected Persons, British Subjects. You would require detailed legal guidance and advice before deciding which status or British Status you hold. So that we are able to advice further as to your status in the United Kingdom, we would request proof of your current immigration status, birth certificates and proof of your parents’ immigration status. It is very important that you recognise that while we are able to put an application to the Nationality Directorate, we cannot influence a decision, all applications are assessed on merit.
Parent is British? (Or resident national)
Section 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.
It is important that you understand that settlement is defined in the Immigration Act 1971 as “being ordinarily resident in the United Kingdom…..without being subject to any United Kingdom Immigrations Laws, there must be no restrictions on the period for which you remain in the United Kingdom”. As a parent they must have indefinite leave to remain or a permanent (not merely an extended) right of residence under EU Law.
Children born after 1 July 2006, redefined father as either [a] the husband of the mother; or the person treated as the father under section 28 of The Human Fertilisation and Embryology Act 1990, or under s35, s36, s42 or s43 of the Human Fertilisation and Embryology Act 2008, or [b] the person who satisfies the requirements of The British Nationality (Proof of Paternity Regulations 2006 – either the person named is the father of the child in a birth certificate issued within one year of the child’s birth, or the person who otherwise satisfies the decision maker (Nationality Directorate) that he the father (DNA test report.) Note: Birth certificates issued after 10 September 2015, being named as the father will no longer be sufficient to prove paternity. The British Nationality (Proof of Paternity (Amendment) Regulations 2015 states that the decision maker (Nationality Directorate) to determine who the “natural farther is”.
Section 65 of the Immigration Act 2014, which came into effect on the 6 April 2015, mentions that the right to register for all those who missed out on an application for British Citizenship, because these people were classed as “illegitimate” was remedied.
When do I Register my child as a British National?
We understand that parents get conflicting advice, and are easily confused by the laws, the fact is that the registration of minors is covered under section 1(3) of the British Nationality Act 1981. In simple terms if your children were born in the United Kingdom on or after January 1983 and were not British Citizens at birth because neither parent was settled or British, and then either parent became British while they were a minor or became settled, then an application for the minor should be submitted.
A child that has spent early years in the United Kingdom, British?
We have advised that both adults and minors can register under s1(4) on the British Nationality Act 1981, but only if [a] they were born after 1 January 1983; or [b] they were not British Citizens at birth because neither parent was British or settled in the United Kingdom as defined under the British Nationality Act 1981 and Immigration Act 1971; and were aged 10 years old at the date of the application; and [c] and have lived in the United Kingdom for the first 10 years of their life; [d] and have lived in the United Kingdom for 10 years of their life and not travel for more than 90 days outside of the United Kingdom.
We have just outlined the basic right to apply for a minor, it is important that you appreciate, that such a right is discretionary to the decision maker.
Can an adopted child get British Citizenship?
This matter is covered under the British Nationality Act 1961 under section 1(5); defining that children adopted on or after 1 January 1983 can apply British Citizenship “automatically” when adopted. Under s1 (5), a child who is not already a British Citizen becomes one from the date of the adoption order; if EITHER – [a] the adoption is by order of a court in the United Kingdom on or after the 1 January 1983 or, after 21 May 2002, or by order of a court in a qualifying territory; [b] the adopter or joint adopter are British Citizens on the date of the adoption. The question that will be raised is what is the habitual residence of the adopter? On the of the adoption application?
My child was not born in the United Kingdom? Is it still entitled to British Citizenship?
This usually involves what we refer to as “acquisitioned rights”. Not all minors have entitlement to registration as a British Citizen, you should consider legal advice to have an application assessed under sub-section 3(2) and 3(5) of the British Nationality 1981, to remedy the tight application of section 2(1) on the Act.
We often apply section 3(1), as it provides very wide discretion, it can be used to register a variety of problem cases (it is known to be used sometimes to deal with an illegitimate child where the decision maker accepts the relationship of the child to the British Citizen father).
Section 3(1) states “if while a person is a minor an application is made for his (chid) registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.
Section 3(2) allows registration where there is a sufficiently strong link it the United Kingdom, looking back across the generations, as to make it unfair to decline to permit access to full British citizenship. The requirement in a normal case is as follows:-
A] 13th January 2010 so the introduction of child rights of registration where they are under 18 years’ old, required under the British Citizen Immigration Act 2009, and replaced the old rule that child registration must happen within 12 months of birth or 6 years in some exceptions;
– a child’s parent has a weak form of nationality (by decent) but their grandparent has the strong form of nationality (otherwise than by decent);
– a child’s parent has a residential link with the United Kingdom, in that they have lived here for a three period sometime prior to the birth of the child, and did not leave the United Kingdom for more than 270 days within that period (however, for a child born stateless, this requirement is waived);
– from 13 January 2010, section 4D of the British Nationality Act 1981 permits registration of certain children born outside of the United Kingdom to a parent serving overseas in the United Kingdom armed forces.
Section 3(5) allows another form of registration. This does not require the grandparent connection that we see in section 3(2), nor does it require the historic 3 year stay in the United Kingdom which the section requires- however, it does require that the family including the child were in the United Kingdom for 3 years leading up to the registration application for registration, and did not leave the United Kingdom for more than 270 days within the period. This application can only be made whilst the child was a minor.
What is the difference between Naturalisation and British Citizenship?
Naturalisation allows someone to become a British citizen and obtain the same rights and privileges as someone who was born a British citizen;
If you were born on 1 January 1983, you became a British citizen under the British Nationality Act 1981 and if your connection with the British territory is because of the British citizenship of your parents or grandparents, who have acquired the same through birth, registration, or naturalisation.
What does it mean to be NATURALISED in the United Kingdom?
There are 2 path ways to obtaining naturalisation, either on the basis of residence in a person’s own right (section 6(1) of the British Nationality Act 1981) or as a spouse (section 6(2). However there are set requirements for each route set out in Schedule 1 of the British Nationality Act 1981.
These requirements are:-
1] length and continuity of residence and immigration status;
2] an individual must be of good character;
3] have sufficient knowledge of the English Language and of life in the United Kingdom; and
4] intend to make their principal home in the United Kingdom or, if they intend to live abroad, that they work in Crown Service or for a UK enterprise.
In non-spouse cases
The requirements of residence for those not applying as a spouse are set out under Schedule 1 Paragraph 2 of the British Nationality Act 1981;-
(a) subject to subsection (3), that he was in the United Kingdom at the beginning of the period of 5 years ending with the date of the application and that the number of days on which he absent from the United Kingdom in that period foes not exceed 450; and
(b) that the number of days on which he was absent from the United Kingdom in the period of 12 months so ending does not exceed 90 days; and
(c) that he was not at any time in the period of 12 months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom;
(d) that he was not any time in the period of 5 years so ending in the United Kingdom in breach of the Immigration Laws.
Section 6(2) deals with applications of persons “married to a British Citizen”. The require residence period is 270 days, with the references to 5 years replaced by 3 years, in sub-paragraphs 9 (a) and (b).
The restrictions at section 3(c) is lifted, so that there is no requirement to be free from immigration control (i.e to have indefinite leave to remain) for 12 months prior to the date of application, with the practical consequence that a spouse can apply from the grant of indefinite leave to remain without waiting a further 1 year.
Further there is no legal requirement to make the United Kingdom their permanent home, though spouses must consider the requirement of good character, English Language proficiency have the requisites knowledge of life in the United Kingdom. To understand which path you can apply under, please do not hesitate to contact us.