KnowYourRightsThursday – The Legal Chit Chat

ARCHIVED: KnowYourRightsThursday:I was born in the UK and my father is British so why was my British passport application refused?-British Citizenship for Children Part 5

Posted on 16th Jul 202030th Mar 2024 by The Legal Chit Chat

*Trigger Warning-This posts mentions death and illness*

Thank you for joining us 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 meeting Kofi’s friend, Tim. Kofi received the best news in the last three years-his British citizenship application was successful, while Tim is going through some of his own issues. Although this series is about British citizenship for Children, this post highlights the effects of parents not knowing the immigration status of their UK born children and failing to resolve the matter before they are 18 years old.

Tim and Kofi went to the same college in London . Tim is a year younger than Kofi and he was born on 15 July 1984. Like Kofi, Tim assumed he was British as he also was born in the UK. Hopefully, as we are on week five of this series, you know not to make that assumption because you will be making an as…well you know the saying. As Tim is born after 01 January 1983, to find out if Tim was born British automatically at birth, we need to look at the immigration status of his parents at the time of his birth.

Tim’s parents met on New Year’s Eve of 1982 at a pub in London in their early twenties. Tim’s mother was a Canadian national working as an au pair and Tim’s father was born in the UK. We learnt last week, supported by the BNA 1981, s11, persons born in the UK before 01 January 1983 are British citizens, please refer to the previous post for more detail.

Tim’s mother had been living in the UK for two months with her host family and it was her first Christmas/New Years in the UK. New Years Eve was her night off. To cut a long story short, Tim’s parents fell madly in love and welcomed, their son Tim in 1984. Having lived in the UK for just under two years, Tim’s mother was not settled in the UK at the time of his birth however she had permission to stay in the UK as a worker. Hang on, with a British father, Tim is born British automatically, right? That is what BNA 1981, s1(1) says, right? Keep reading.

Everything seemed perfect! Tim’s father proposed to Tim’s mother in November 1984, five months after Tim’s birth. Of course, Tim’s mother said yes. Unfortunately, shortly Tim’s mother began to feel ill and over the Christmas period got worse. Tim’s mother was diagnosed with an incurable rare illness which was very aggressive on the immune system. The doctors gave Tim’s mother three months to live, five months max. Tim’s father was heartbroken having meant the love of his life and having a new-born son. Tim’s father was a wreck. Tim’s mother’s health deteriorated rapidly but Tim’s father was by her side day and night. Tim’s paternal grandparents who lived in Manchester had to step in to help care for Tim. Tim mother’s passed on 21^st February 1985 when Tim was seven months old.

Tim’s father went into a downwards spiral after the death of Tim’s mother. Tim’s paternal grandparents continued to look after as Tim’s father needed help and could not care for Tim. In 1987, Tim’s father eventually ended up in prison for a GBH and drug charge. In 1988, Tim’s paternal grandmother died when Tim was four. Tim’s paternal grandfather raised Tim until his death when Tim was 11. Tim had a great relationship with his paternal grandfather and so when he died, Tim felt lost. There was no other family in the UK to raise him and social services were unable to trace his mother’s family in Canada. Between the ages of 11-16, Tim lived with four foster families in Manchester. Determined to make his grandfather proud, he moved to London at 16 in hope to become a teacher. In the summer of 2000- the new millennium, at age 16, Tim got a part time job at KFC and shared a flat with an art student before enrolling in college where he met Kofi.

Tim did great at college and later went to university. He got a job as a history teacher in 2004 at an all-boys secondary school. Life was good. Tim got married in 2010 to Lamai, a British citizen of Thai descent who was also a teacher and Tim became the Deputy Head of the all boys’ secondary school in 2015. In May 2019, Tim got an offer to teach English in Thailand. His wife was happy to move to Thailand as she spent her early childhood with her mother in Thailand and was excited to show Tim her roots. Tim could imagine his grandfather looking down on him smiling.

At 34 years old, Tim had never left the UK, Tim applies for his first passport in May 2019 with his full UK birth certificate. Tim is British right? so there should be no problem. So why was his passport application rejected?

Tim is not British! Tim was very lucky to get to go to university, because many people in Tim’s position would have had to turn down university offers and re-apply at a later stage.

Prior 01 July 2006, ‘citizenship could only be passed on from a British man to his child if the parents were married and a child born in the UK could not acquire British citizenship on the basis of a settled father if the parents were not married’.[1]

Tim was born in 1984. Tim’s parents had planned to get married in 1985 however they did not get a chance to get married because Tim’s mother died from an incurable illness.

As this law was clearly unfair and disadvantaged children of unmarried parents and prevented persons who should have acquired British citizenship automatically or entitled to register as a British citizen; Parliament decided to put it right and inserted sections 4E,4F, 4G, 4G,4H,4I in BNA 1981 with the help of Immigration Act 2014. BNA 1981, 4G and 4E is relevant to Tim.

BNA 1981, 4G Person unable to become citizen automatically after commencement

(1) A person is entitled to be registered as a British citizen on an application made under this section if—

(a) [that person] meets the general conditions (found in section 4E); and

(b)at any time in the period after commencement (after 01 January 1983), [that person] would have automatically become a British citizen at birth by the operation of any provision of this Act…had [that person]’s mother been married to [that person]’s natural father at the time of [that person]’s birth.

BNA 1981, 4E The general conditions (summarised)

born before 1 July 2006;
biological parents were unmarried (to each) at the time of birth
has never been a British citizen

Tim meets the requirements of BNA 1981, s4E and s4G and therefore can register as a British citizen to right the historical wrong. On 25 July 2019, the British Nationality Act 1981 (Remedial) Order 2019 removed the good character requirement (please see the last week’s post for a brief description of the good character requirement-more detail will be provided in a future post) from British citizenship route found sections 4C, 4F, 4G, 4H and 4I as it was found to be incompatibility with the European Convention of Human Rights (ECHR).

Good news, this registration application is free (yes free). Tim will need to attend a British ceremony as he is over 18- presently this cost £80.00.

As stated by BNA 1981, s4G(2) “A person who is registered as a British citizen under this section (section 4G) is a British citizen by descent”. Please note, British citizens by descent cannot normally pass on British citizenship to any children born outside British territory.[2]

You may be wondering so what is the issue? Why is Tim’s matter still unresolved a year later? Isn’t Tim living and teaching in Thailand?

Tim is still in the UK and he could not take up the job offer in Thailand in time. To register under section 4G, Tim needs some documents from his father to apply to show his father was British at the time of his birth. Tim has not seen his father since he was three. Tim’s father was released from prison in 2002 and Tim’s father eventually contacted Tim in 2008 via FaceBook but Tim wanted nothing to do with him as he felt his father let him down. Lamai, Tim’s wife has encouraged Tim to reach out to his father, but Tim is having a hard time letting go of his pain. Concerned about Tim, Lamai calls one of her close friends to talk. After the phone call, Lamai gets an email from one of her student’s father distressed as his 18 years daughter’s British citizenship application was refused…

Joins us, next week Thursday where we learn more about Lamai’s student and why her British citizenship application was refused.

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.

ARCHIVED: KnowYourRightsThursday: I was born in the UK, lived in the UK all my life and I have never left… Am I British, right ?-British Citizenship for Children Part 4

Posted on 9th Jul 202030th Mar 2024 by The Legal Chit Chat

Thank you for joining us 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 meeting Kofi, Giovanni’s manager. Kofi was reminded about his immigration matter when Giovanni was explaining to him that he needs overtime to pay for his daughter’s British citizenship application. Instead of going to his house, Kofi goes to his older brother’s house, Kojo to talk about his immigration matter. Although this series is about British citizenship for Children, this post and the next two posts highlights the effects of parents not knowing the immigration status of their UK born children and the consequences. Please note, assuming a UK child born is British a common assumption and this post does not bash parents.

Kofi was born in the UK on 10 June 1983 to Ghanaian parents. He has three other siblings.

Kojo, Kofi’s older brother was born in the UK on 27 September 1982. Afia, Kofi’s older sister was born in the UK on 06 April 1979. Abena was born in the UK on 11 February 1986.

Kofi’s parents arrived in the UK on 17 March 1979 for a short visit as Kofi’s father wanted to study in the UK within the next two years. Kofi’s parents intended to stay no longer than three weeks as Kofi’s mother was pregnant with Afia at the time. Afia was due to arrive in June 1979 however Afia was born premature and was born three months earlier than her due date. Only God and a miracle allowed Afia to survive as she stayed in the hospital for 6 months while the doctors monitored her development. When the doctors discharged Afia, Kofi’s parent decided to stay in the UK despite wanting to return to Ghana but decided to prioritise Afia’s health as the local doctors knew of Afia’s difficult birth and wanted to continue to monitor Afia.

By this time, Kofi’s parents were overstayers in the UK as their visit visas had expired and Kofi’s parents and Afia were living with a church friend. A year after, their arrival, Kofi’s father visited an immigration law firm on a church friend’s recommendation to discuss their options of living in the UK lawfully. The solicitor explained that due to recent immigration changes to control immigration in the UK, it was hard to advise options. Needing to support his family, Kofi’s father managed to get a job working at the local market (although he did not have permission to work in the UK) while attending free evening French classes. Kofi’s father loved education and graduated from a top institute in Kumasi, Ghana studying business and finance and ideally wanted a different job.

Along comes Kojo, Kofi’s older brother born in 1982…

As the immigration solicitor told Kofi’s father- immigration law was changing. For the last three weeks, we have been looking at the British Nationality Act (BNA) 1981 and its application for children born in the UK after 01 January 1983 (after its commencement). But what was the law before?

Did you know that ‘British citizen’ is a new term? Well about nearly 40 years old- so kinda new. It was first mentioned in the BNA 1981. Prior 01 January 1983 (before BNA 1981 came into force-yes it took nearly two years), the BNA 1948, referred British citizens as Citizens of the United Kingdom and Colonies (CUKC) who were British subjects who were born/naturalised/registered/adopted in the UK or one of the UK colonies of the British Empire. The further reading from Part 1 details about BNA 1948 (coming into force on 01 January 1949) and CUKCs.

Many former UK colonies are part of the Commonwealth [of Nations] today. This post will not go into depth about BNA 1948 however Ghana (previously known as Ashanti) is former UK colony. Kofi’s parents were born in 1949, meaning they were born as CUKCs but as Ghana became independent on 6 March 1957, Kofi’s parent were no longer CUKCs but acquired Ghanaian citizenship as Ghana became an independent country. Ghana (and other former colonies) enacted their own citizenship laws. Only certain people were ‘excepted from loss [of CUKC status], please read the further reading from Part 1 to find out.

The key factor of being a British citizen or CUKC (prior 01 July 1962) is the right of abode- meaning you could live and work in the UK with no restrictions.

Further the commencement of Commonwealth Immigrations Act 1962, from 01 July 1962, ‘except for ‘Commonwealth citizens’ (a term which included CUKCs) who were born in the UK or who were the holders of UK passports (as opposed to British passports issued by a colonial authority), the right of entry to the UK was restricted by the provisions of the Commonwealth Immigrations Act 1962 Act’.[1] ‘Following Commonwealth Immigrations Act 1962, citizens of Commonwealth countries and certain CUKCs were subject to immigration control.[2]

Assessing whether a CUKC or Commonwealth citizen had the right of abode before 01 January 1983 (commencement of BNA 1981) can be complex, if applies this to you or a family member, I advised you seek professional, reputable immigration advice.

So guess what? Afia and Kojo were CUKCs and had the right of abode as they were born in the UK before 01 January 1983 (and after 01 January 1948), irrespective of their parents’ status at the time of their birth. On 01 January 1983, Afia and Kojo automatically became British citizen as supported by BNA 1981, s11

BNA 1981, s11(1)

(1)Subject to subsection (2), a person who immediately before commencement (01 January 1981)—

(a)was a citizen of the United Kingdom and Colonies (CUKC); and

(b)had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force,

shall at commencement (01 January 1981) become a British citizen.

As for Kofi, he missed out on being automatically British citizen under BNA 1981, s11(1) by six months! Therefore, we need to find out if Kofi was British by birth under BNA 1981, s1(1) and focus on the immigration status of his parents at the time of his birth. Having lived in the UK for over four years, Kofi’s parents were not settled in the UK and where still seeking advice regarding their immigration matter. Therefore Kofi is not British by birth under BNA 1981, s1(1).

Nevertheless, Kofi, alongside Kojo and Afia completed all their education in the UK until they were 19 years old. Kofi’s mother longed to return to Ghana, so in 1988, she returned to Ghana with Kofi’s younger sister, Abena while Kofi, his father and his older siblings stayed in the UK. The separation was extremely hard on the family and due to the sacrifices made, Kofi’s father instilled the importance of education and utilising every opportunity given.

Eventually, Kofi’s father got his immigration matter sorted and became settled in the UK as he was granted Indefinite Leave to remain (ILR) in 1994 and naturalised as a British citizen in 2000. The purpose of this posts on what basis Kofi’s father was granted ILR is not relevant. Kofi’s father started an international financial advisory business, where many of his clients were French speakers. After 1994, his mother and sister, Afia would visit the UK for short trips and Kofi’s father eventually returned to Ghana for good in 2008. Kofi’s father left the business with Kojo to run. Kofi’s father was very proud of his children and knew they would support each in the UK while he was in Ghana.

Kofi decided not to attend to university, but he got a job as a trainee mechanic. Kofi loved cars since he was a child as his father would bring home toy cars from working at the market when they were not selling.

Kofi and his family grew up thinking Kofi was British because he was born in the UK. Although, he embraced his Ghanaian roots, all he knew was life in the UK as he was born in the UK and had never left. Kofi never had a problem showing he had the right to work in the UK as he provided his full UK birth certificate and his national insurance (NI) card. Now, he is working as a manger at one of the top garages in the city. Kofi has two children, age 8 and 11. His children are British and have British passports as their mother is British citizen of Kittian descent (British by birth under BNA 1981, s1(1)). Kofi co-parents with his children’s mother and they are still friends despite their break-up five years ago.

In February 2017, Kofi’s youngest sister announced she was getting married in Ghana in June 2017. As you can imagine the whole family was excited and Kofi wanted to take his kids to Ghana with him. Kofi and Abena decided to apply for their first British passport as they had never left the UK. Kojo just renewed his passport and received his new passport within 3 weeks. Afia received her first passport within 6 weeks. In the beginning of May 2017, Kojo received a letter from the Passport Office asking for evidence of his parent’s immigration status at his birth. Confused as to why they needed this after sending his full UK birth certificate like Afia, he called his parents via WhatsApp and explained the situation. Kofi’s father explained his immigration history and unknown to Kofi he did not realise the things his parents went through. Kofi’s father advised Kofi to see an immigration solicitor quick as Abena’s wedding was in June.

Kofi had a consultation at a reputable law firm and the solicitor explained that Kofi was not British by birth under BNA 1981, s1(1). If Kofi’s father knew that Kofi was not British when he was a child, he would have been able to register Kofi as a British citizen under BNA 1981, s1(3) because Kofi’s dad was granted ILR and became settled in the UK in 1994 when Kofi was 11 years old (Read Part 3 to learn more about BNA 1981, s1(3)).

However, the solicitor explained Kofi was eligible to register as a British citizen even though he is an adult because he was born in the UK and he had spent the first ten years of his life in the UK.

BNA 1981, s1(4)

A person born in the United Kingdom after commencement (01 January 1983) who is not a British citizen by virtue of subsection [BNA s1](1), 1A or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.

Kofi must also fulfil the good requirement as he is over 10 years old. According the Home Office guidance-Guide T published March 2019, a person fulfils the good character providing ‘they have shown respect for the rights and freedoms of the UK, observe its laws and fulfilled their duties and obligations as a resident of the UK’.[3] Kofi fulfils the good requirement however we will revisit the good character in depth within the next few weeks.

You will note, Abena is not eligible to register as British citizen under BNA 1981, s1(4) because she did not spend the first ten years of her life in the UK as she went to Ghana with her mom at age 2 in 1988. In each year of the first ten years of Abena’s life, she was present in the UK for the first two years but she was absent for more than 90 days in each year in her following 8 years up to age 10.

Due to the work required to prove that Kofi was in the UK for the first ten years of his life, he knew he would not be able to go to Abena’s wedding in Ghana or take his children with him to Ghana. Also, the Home Office fees for an adult to register as British citizen was expensive and he needed time to save up due to other financial commitments.

In January 2020, he finally arranged all the documents needed and the fees and his solicitor assisted Kofi with his application which was submitted the same month. Due to the current pandemic, there has been some delays in processing immigrations applications, so Kofi has been waiting over six months on the outcome.

He arrives at his brother’s house and he talks to Kojo about how stressful the last three years have been to get the documents and money ready.

“Only if I had been born 6 months earlier” sighs Kofi. Kojo tries to help Kofi but Kojo does not understand how hard it was for Kofi not to be able to go to Ghana for Abena’s wedding or to tell his children he could not take them to Ghana or wondering if he will be fired from his job if they find out he is not British. It was a lot for Kofi.

The next afternoon, Kofi gets an email from his immigration solicitor saying his British citizenship application was successful but due to lockdown and social distancing, he will have to wait a bit longer to attend his British ceremony where he will be officially British. As Kofi is over 18 years old, he must attend a British ceremony. After his ceremony, Kofi can apply for a British passport-which will not be rejected this time.

Just thankful this ordeal is over, he wants to message his friend, Tim but he is going through some issues with his own immigration matter…

Joins us, next week Thursday where we learn more about Kofi’s friend, Tim and his immigration issues.

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.

ARCHIVED: KnowYourRightsThursday: I live in the UK and I am seven months pregnant, will my child be British?-British Citizenship for Children Part 3

Posted on 2nd Jul 202030th Mar 2024 by The Legal Chit Chat

Back again with the British Citizenship for Children series.

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.

British Citizenship for Children, KnowYourRightsThursday

ARCHIVED: KnowYourRightsThursday: Help! I am an EU national with a UK born child. Is she British?- British Citizenship for Children series Part 2

Posted on 25th Jun 202030th Mar 2024 by The Legal Chit Chat

We are back with the British Citizenship for Children series.

We ended last week’s post, after meeting Stella, a 40-year old Brazilian national who is married to an Italian national, Giovanni. After listening to Sharon, her Trinidadian neighbour concerns about Tia’s immigration status, Stella impatiently waits for Giovanni to return home from work. Stella and Giovanni have two children, Francesco, age 8 who was born in Brazil and Valentina, age 3 who was born in the UK. Stella is six months pregnant with their third child.

Giovanni, age 36 was born in Brazil however he acquired Italian nationality through his Italian parents as well Brazilian citizenship from being born in Brazil. Giovanni’s parents applied for his first Italian passport when he was 9.

Stella and Giovanni have been married for 15 years. When Francesco, their firstborn was 2 years old, Giovanni and Stella decided that they wanted to move to the UK to be closer to Stella’s older sister, Teresa who was willing to help care for Francesco while Giovanni works and Stella studies. Before Giovanni left, he applied for Francesco’s first Italian passport.

Giovanni moved to the UK first as an Italian national on 02 February 2014 to find a job. Giovanni stayed with Teresa, his sister in law and found a job within 3 weeks. Giovanni wanted to wait until he passed his probation period before Stella and Francesco joined him in the UK. Three months later after passing his probation period, Giovanni and Teresa attend a consultation with a solicitor from a reputable solicitors’ law firm to find out Stella and Francesco’s options to join Giovanni. The solicitor informs that Stella and Francesco can join Giovanni as family members of an EEA national who is working as prescribed under Immigration (European Economic Area) Regulations 2006 (now 2016). With help from the solicitor, Giovanni applied for a visa called an EEA family permit for Stella to join Giovanni. Stella and Francesco arrive in the UK 5 on 02 July 2014). Due to the EU free movement rules, as an EU/Italian national, Francesco entered the UK without a visa like his father, Giovanni.

Fast forward to today, Stella and Giovanni have a daughter, Valentina age 3 and another child on the way. Francesco has remained with the same employer since 23 February 2014 and although Stella has finished her studies, she is a stay at home mom. Stella and Francesco decide to prioritise Valentina’s immigration matter and attend a consultation with their previous solicitor. Valentina was born in the UK on 23 June 2017 and is an Italian citizen, like her brother Francesco as prescribed under Italian legislation, Article 1 of Law No. 91/1992 but is she is also a British national?

EU Immigration in the UK

The difference between Tia and Valentina’s immigration matter is that Valentina has an EU/Italian father. The UK was a member state of the European Union from 01 January 1973- 31 January 2020 and the rules established by the EU is applicable to all EU states. EU immigration/ free movement of people which is applicable to all EU member states is found in Directive 2004/38/EC. In a nutshell, EU nationals (and their family members) can freely move around the EU, providing they meet certain requirements. The UK implemented EU law appropriately in UK legalisation. The UK legislation relevant to EU immigration rule/free movement of people is Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016). Although, the UK is no longer an EU member state, the UK is in a transition/implementation period with the EU until 31 December 2020 for the EU and the UK to continue to negotiate terms of Brexit such as trade deals. During this time, most EU law applies in the UK, including the free movement of people.

Last week we saw how British citizenship is acquired at birth under British Nationality Act 1981 (BNA 1981), s1(1).

British Nationality Act 1981 (BNA 1981), s1(1) states:

A person born in the United Kingdom after commencement [of the BNA 1981 which is 01 January 1983] 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

Neither Stella nor Giovanni are British citizens, but were they settled in the UK at the time of Valentina’s birth?

EEA Regulations 2016 deals with immigration in the UK for EU nationals and their family members. For this post, ‘Settled in the UK’ under EEA Regulations 2016 is known as ‘the right of permanent residence’. The principle of the right of permanent residence is ‘acquired’ as opposed to be ‘granted’.

Immigration (European Economic Area) Regulations 2016, Regulation 15(1) (a) and (b)

Right of permanent residence

15.— (1) The following persons acquire the right to reside in the United Kingdom permanently—

(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b)a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

Regulation 15(1)(a) applies to Giovanni and 15(1)(b) applies to Stella. ‘In accordance with these regulations’ means meeting the requirements of EEA Regulations 2016.

The requirements for an EU national to reside in the UK under EEA Regulations 2016 is that they must be a qualified person. There are different ways to be a qualified person as defined in EEA Regulations 2016, Regulations 6. Giovanni is a qualified person as worker and has been since February 2014. The requirements for a non-EEA national to reside in the UK under EEA Regulation 2016 is as a family member of an EU qualified person. Stella fulfil this requirement as Giovanni’s wife.

Although Giovanni is a qualified person and Stella is Giovanni’s family member, at the time of Valentina’s birth on 23 June 2017, neither Giovanni and Stella had resided in the UK in that capacity for at least five years in order to have acquired the right of permanent residence in accordance with EEA Regulations 2016, 15(1)(a) and (b) before Valentina’s birth as they both arrived in the UK in 2014. Therefore, Valentina is not British in accordance with BNA 1981, s1(1).

After the long consultation, Stella goes to see Sharon to inform her about the consultation.

Join us, next week Thursday to see what options are available for Valentina. Also, with three months until their new arrival, we join Stella and Giovanni back to the law firm for more advice.

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.

Please see below for further reading materials relevant to this post.

ARCHIVED: KnowYourRightsThursday: My child was born in the UK, now I want to apply for their British Passport!-British Citizenship for Children series Part 1

Posted on 18th Jun 202030th Mar 2024 by The Legal Chit Chat

First thing first- hold up! British nationality law is a little complicated. Let me take that the words ‘a little’ out. Due to its history, it is an area of immigration law that requires some people do some serious digging, e.g. create a family tree or go on the BBC ‘Who do you think you are?’. For the majority, the digging is minimal.

Welcome to the British Citizenship for Children Series. Today’s post will introduce British Citizenship for persons born in the UK on and after 01 January 1983.

Fun Fact- Being born in the UK, does not mean you have automatically acquired British citizenship.

This can come as a shock to many people-whether you are British or not-like Sharon, a 24-year-old Trinidadian national living in the UK.

To help you understand common British nationality law scenarios, Sharon and other fictional characters will pop up to help. There may be times where you will be thinking ‘Really?’ or ‘that would never happen in real life!’- just stay with me on the journey.

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.

British Citizenship by Birth (Part 1)

British Nationality Act 1981 (BNA 1981), s1(1) states:

A person born in the United Kingdom after commencement [of the BNA 1981 which is 01 January 1983] 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

Sharon has been living in the UK for nearly 4 years with her Trinidadian husband, Michael. Both born and raised in Trinidad, Sharon and Michael entered in the UK as students (on Tier 4 Student visas). They have both completed their undergraduate degree and have now started their masters at the Royal United State University in London. They renewed their student visas to extend their stay to complete their masters. Sharon gave birth to a baby girl, name Tia at the Royal United Hospital in London on 23 December 2019. Sharon and Michael registered Tia’s birth in the UK, and they were issued a UK birth certificate for Tia.

Luckily for Sharon and Michael as new parents- their second semester is focused on their dissertation, so they work from home. Michael attends a consultation with a solicitor from a reputable solicitors’ law firm to find out Tia’s options. The solicitor explains although Tia was born in the UK and was issued a UK birth certificate; Tia is not British by birth under BNA 1981, s1(1) because Sharon and Michael are neither are British Citizens, nor settled in the UK at the time of Tia’s birth. Tia is not eligible for British citizenship; therefore her parents cannot apply for a British passport on her behalf.

What does ‘settled’ mean?

Although, Sharon and Michael, may feel settled in the UK, for the purpose of the BNA 1981 and other immigration rules/legislation, ‘settled’ means you can stay in the UK without any time restrictions.

People who are settled in the UK have:

indefinite leave to remain (ILR),
settled status (under the European Settlement Scheme (EUSS)) or;
permanent residence (under Immigration (European Economic Area) Regulations 2016)

There are various ways to obtain settlement. Most are eligible for settlement between 5 -10 years of lawful residence depending on their immigration history and circumstances.

At the time of Tia’s birth, Sharon and Michael had limited leave to remain as students. They have restrictions on how long they can stay in the UK as students.

What happens to Tia?

Michael and Sharon contact the Trinidadian embassy in London to see if Tia is Trinidadian citizen although she was born in the UK. The embassy informs Sharon and Michael, that according to the Citizenship Act of the Republic of Trinidad and Tobago, section 5, they can apply for certificate of citizenship for Tia as a citizen of Trinidad and Tobago by descent. Michael contacts the UK solicitor and shares the news and wants to know if Tia can get a visa as a dependant of Michael who is on a Tier 4 Student visa.

What happens next, is dependent on Michael’s and Sharon’s future plans-will they return to Trinidad or will an opportunity arise for them to stay in the UK after they finish their studies? The decision they make will affect Tia.

Sharon is very stress and decides to invite her neighbour, Stella, a 40-year old Brazilian national who is married to an Italian national, Giovanni. Stella and Giovanni have two children, Francesco, age 8 who was born in Brazil and Valentina, age 3 who was born in the UK. Stella is six months pregnant with their third child. Hearing Sharon’s stressful situation is making Stella stressed about her children’s immigration status.

_{Join us, next week Thursday to found out what is Stella’s children’s eligibility for British Citizenship.}

I have mentioned a few words such as ‘Indefinite Leave to Remain’, ‘Permanent Residence’ and ‘Settled Status’, ‘by descent’ and hopefully throughout this series you will understand these words.

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.

Thank you for reading. Stay safe and take care, Nellie x

Please see below for further reading materials relevant to this post.