It has been confirmed by the recent decision of the High Court (MK (A CHILD BY HER LITIGATION FRIEND CAE) V SSHD [2017] EWHC 1365 THAT Stateless children born in the UK have a right to register as British citizens after living here for a continuous period of five years.
The case involved a child (MK) born in the UK in November 2010. Her parents were both nationals of India. MK had made an application for registration as a British citizen under Schedule 2 of the British Nationality Act 1981. Under Schedule 2 of the British Nationality Act 1981, a child or young person born in the UK can be registered as a British citizen if he or she:
- is and has always been stateless
- was under the age of 22 on the date of the application
- has lived in the UK 5 years prior to the making of the application.
The Home Office refused the application and judicial review proceedings were commenced. There were some difficulties in relation to evidence, particularly relating to Indian law and the interpretation and practice of that law. However, the high court decided that MK was entitled to register as a British citizen as she was and is stateless as she does not have Indian nationality.
This case will be important for those children who are born in the UK, are stateless and are making an application in the same or similar circumstances. It has reiterated by this case that stateless children born in the UK have a right to register as British citizens after living here for a continuous period of five years.
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).
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. 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.
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.
To apply for British Nationally is really expensive. Currently, the fee for a child to register as British is £973. 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. The legal aid is not available for advice and assistance on these registration applications (unless exceptional case funding is granted). The applicants 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.
I will be more than happy to provide all necessary information and legal help if you need to apply for your child.
Ajay Aggarwal, Solicitor
SMG Solicitors
99 Baggrave Street, Leicester, LE5 3QW
Moblie; 07727 688 291
