Back again with the British Citizenship for Children series.
This series and post is fiction and is for illustrative and educational purposes only to discuss British nationality laws. Names, characters, storyline, businesses, places, events, locales, and incidents is the products of the editor’s imagination. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.
We ended last week’s post finding out that Valentina age 3, Stella and Giovanni’s UK born daughter is not British by birth as defined by BNA (British Nationality Act) 1981, s1(1). Please re-read the previous two posts from the series to refresh your memory on the definition and the application of BNA 1981, s1(1).
Stella is at Sharon’s house to discuss the details about their consultation for Valentina’s immigration matter. ‘All is not lost’ sighs Stella as she drinks her lemon tea. ‘We have the option to apply for British citizenship for Valentina by way of registration, but it is very expensive’. Giovanni is going to discuss overtime with his manger to cover the costs. ‘Registration? What is that?’ Sharon asks while she makes a mental note for own research just in case it is viable option for her daughter, Tia.
Spoiler alert ! It is not (at this time)
British Nationality Act 1981 (BNA 1981), s1(3) states:
A person born in the United Kingdom after commencement [of the BNA 1981 which is 01 January 1983] who is not a British citizen by virtue of subsection (1)(BNA 1981, s1(1)-British by birth) or (2)] shall be entitled to be registered as a British citizen if, while he is a minor—
(a)his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b)an application is made for his registration as a British citizen.
As we know Valentina was born in the UK on 23 June 2017 and neither Giovanni nor Stella, her parents were settled or British at the time of her birth. The BNA 1981, s1(3) (see above) allows children under the age of 18 who was born in the UK to register as British citizens if at least one of their parents becomes settled in the UK or British after their birth.
In last week’s post, we looked at ‘settled in the UK’ in the context of EU immigration law in the UK which is ‘permanent residence’. This is applicable to Valentina as her father, Giovanni is an Italian citizen. We saw that although Giovanni did not have the right of permanent residence at the time of Valentina’s birth, as of today he has acquired the right of permanent residence as he has worked continuously in the UK for at least five years, therefore he is settled in the UK as defined by EEA Regulation 2016, Regulation 15(1)(a). Please re-read the previous post from the series to refresh your mind on the application of permanent residence under EEA Regulation 2016. Stella, a Brazilian national has also acquired the right of permanent residence as defined by EEA Regulation 2016, Regulation 15(1)(b) as having lived in the UK for at least five years as the spouse of an Italian citizen who has worked continuously in the UK for at least five years.
Please remember from the previous post that there are other ways that an EU citizen can acquire the right of permanent residence besides working continuously for five years.
The solicitor estimated that as Giovanni has not been absent from the UK for more than six months in each year he has lived in the UK and has worked for the same employer since 02 February 2014, Giovanni acquired the right of permanent residence on 02 February 2019. The solicitor estimated that as Stella has not been absent from the UK for more than six months in each year she has lived in the UK and has lived in the UK for at least 5 years as Giovanni’s spouse, Stella acquired the right of permanent residence on 02 July 2019 (five years since Stella arrived in the UK). The solicitor mentions that Giovanni can apply to obtain a document certifying his permanent residence and Stella can apply to obtain a permanent residence card. The Home Office fee is £65.00 per person and the solicitor offers a quote if they decide to apply. Although, it is not compulsory for either Giovanni and Stella to obtain the respective documents, it will make Valentina’s application a little easier and it will make life easier if they needed to prove they are settled in the UK, e.g. for certain public funds/benefits. The solicitor details the documents required for Valentina’s application if they choose not to apply for permanent residence cards.
Although, the UK left the EU on 31 January 2020, EEA regulations 2016 in still in force while we are in a transitional/implementation period where the UK and EU continue to discuss the terms of Brexit. The transitional/implementation period is set to end on 31 December 2020. Therefore, as Valentina was born before 31 December 2020, Valentina can rely on her parents’ right of permanent residence under EEA Regulation 2016, Regulation 15 for the purpose of registering as a British Citizen under BNA 1981, s1(3).
On the way to the consultation, Stella saw an advertisement at the bus stop about the ‘EU Settlement Scheme’ but she did not see the details. Luckily when she remembered the advertisement during the consultation, their solicitor said they would discuss the scheme in more detail over the phone later in the week.
The EU settlement scheme was introduced by the UK government in response to Brexit so that EU citizens and their family members who are living in the UK by 31 December 2020 can remain lawfully in the UK after the end of the transitional/implementation period. As the EEA regulations 2016 which implemented EU immigration law into UK legislation, will no longer be in force after 31 December 2020, the EU Settlement scheme allows EU citizens and their family members to apply for leave to remain under the UK Immigration Rules, Appendix EU so that EU citizens and their family members can remain in the UK lawfully in accordance with UK immigration law. For EU citizens, the application is based on solely residence in the UK and for non-EU family members, the application is based on residence in the UK, their relationship to their EU family member and their EU family member’s residence in the UK.
The solicitor calls Giovanni and Stella on Thursday afternoon on Giovanni’s day off. The solicitor informs them that the application for leave to remain under the EU settlement scheme (EUSS) is free (yes Free) and in most cases, it is straightforward. As Stella and Giovanni have been living in the UK more than five years, they are eligible for settled status (also known as ILR/Indefinite leave to remain). Pre-settled status (also known as Limited leave to remain) is for EU citizens and their family members who have been living in the UK for less than five years. But the most important of all- the deadline for all EU citizens and their family members to apply under the EUSS is 30 June 2021. Stella asks the solicitor ‘If we apply for the permanent residence cards under EEA regulations 2016, we will still need to apply for settled status under EUSS?’. The solicitor answers yes as the EEA regulation 2016 will no longer be in effect after 31 December 2020. Still worried, Stella asks ‘How will this affect Valentina’s application, and our unborn child?’.
The solicitor explains that when Giovanni and Stella apply for settled status under EUSS and being very confident that the application will be successful, Giovanni and Stella will be granted settled status. While EEA regulations 2016 and the EUSS is operating at the same time during this period, Giovanni and Stella’s settled status will only further assist in showing that they are settled in the UK for Valentina’s application and makes a suggestion to the couple to apply for settled status first before applying for British citizenship for Valentina. The solicitor details the evidence required for Stella and Giovanni’s EUSS application.
As for their unborn child, the child will be born around September 2020 as Stella is seven months pregnant. As this is before the end of the implementation period), their child will be born British by birth in accordance with BNA 1981, s1(1) as Stella and Giovanni acquired the right of permanent residence under EEA regulation 2016 in 2019 before the child’s birth.
Also, if either Stella or Giovanni is granted settled status under EUSS before their new arrival’s birth, they have the option in using evidence of their settled status under EUSS or evidence of their the right of permanent residence under EEA 2016 to prove their child is British by birth under BNA 1981, s1(1) for the child’s British passport application.
Giovanni and Stella decide not to apply for permanent residence cards and just apply for settled status under EUSS with help from their solicitor and wait until they are granted settled status to apply for British citizenship for Valentina. Fingers cross they receive a decision/outcome quick!
Wanting to save money for the Home Office fee of £1,012.00 for Valentina’s application, Giovanni is talking to his manager, Kofi, about overtime and the reason why he needs more hours. Kofi is unsure whether the company can afford overtime this month, but he asks Giovanni to give him a few days to review the rota and the accounts. When Giovanni leaves Kofi’s office, Kofi leans back in his chair, thinking about his own immigration matter and how his application for a British passport was refused three years ago…
Joins us, next week Thursday where we learn more about Kofi and his unsuccessful British passport application.
If you are concern about your immigration matter or your child’s immigration matter, please contact a reputable solicitors’ law firm that specialises in immigration law to find out your options.
For more information of the EU settlement scheme (EUSS), please check out https://www.gov.uk/settled-status-eu-citizens-families
Remember the deadline is 30 June 2021 so just a year left!
No further reading this week as we have covered a lot of information however if you are begging for more, then check out the Gov.uk link above of the EU settlement scheme.
The Legal Chit Chat 