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Briefing: immigration and nationality options for children in care
Credit: Soragrit Wongsa on Unsplash

Briefing: immigration and nationality options for children in care

Children may arrive in the care of local authorities without British citizenship or UK immigration status. They and their social workers may not realise there is an issue until, for example, the child has a school trip abroad and needs a passport; until they apply to university; or until they leave care and need to find work, accommodation and so on. Inaction can have disastrous consequences

This post looks at the options for regularising the immigration status of a child in care. Some options are open to all children, while others are specifically for children in care. As usual, it won’t be possible to set out every possible scenario, and so this post will only cover the issues that lawyers, social workers and foster carers are likely to encounter most frequently. 

British citizenship for children in care

For most (but not quite all) children, British citizenship is the most desirable outcome. British citizenship is the most permanent of statuses and, in all but exceptional cases, protects the child from removal or deportation later in life. Children can be born British or register as British (they cannot naturalise, as naturalisation is for over-18s only). The rules on acquiring citizenship by birth or registration are found in the British Nationality Act 1981, and in Home Office guidance.

Before digging in the various options, it is worth mentioning that:

  1. Several routes to British citizenship are only available to children and must be used before the child turns 18. It is therefore important to act promptly, rather than waiting until the child has turned 18 and has become a care leaver.
  2. In many cases, once a child turns ten years old, they will be subject to the good character test. This is another reason to put in an application sooner rather than later.
  3. In nationality law, the definition of “father” does not necessarily correspond to the biological parent. Simplifying slightly, a child’s mother is the person who gave birth to the child, but where the mother is married, the child’s father (in nationality law) will be the mother’s spouse.
  4. Still another nationality law peculiarity: there are broadly two “types” of British citizenship. One is citizenship “by descent”, which children born outside of the UK of British parents will usually have. The other is British citizenship “otherwise than by descent”, which is usually what children born in the UK or registered as British have. The main difference between the two is that citizens “by descent” cannot continue to pass their British citizenship on to children born abroad. 
  5. When using the word “settled” in this post, we mean “indefinite leave to remain”, “permanent residence” or “settled status”; in other words, a status which allows you to remain in the UK indefinitely without needing to make any further applications to the Home Office.

It may help to refer back to these points when those terms crop up below.

Is the child British by birth?

Some children in care may already be British without knowing it.  This would be the case for:

  1. Children born in the UK before 1 July 2006 where:
    • Their mother was British or settled; or 
    • Their father was British or settled and married to the mother at the time of birth. 
  2. Children born in the UK after 1 July 2006 where either parent was British or settled.
  3. Children born abroad before 1 July 2006 where:
    • Their mother was British otherwise than by descent; or 
    • Their father was British otherwise than by descent and married to the mother at the time of birth.
  4. Children born abroad after 1 July 2006 where either parent was British otherwise than by descent.

Children who are already British can simply apply for a British passport for proof of their status. But that leaves plenty of children who are not British despite being born in the UK, which would be the case if neither parent was British or settled at the time.

Can the child register as British?

Non-British children may be entitled to register as British citizens. This means making an application, but the Home Office will grant it provided the child meets the requirements. This would be the case for the following categories (again, focusing on the cases one is most likely to encounter in practice):

  1. Children born in the UK where one of the following is true:
    • One of their parents become British or settled while they are a minor (section 1(3) of the 1981 Act). If the parent in question is the child’s father, and the child was born before 1 July 2006, then the father should have been married to the mother at the time of birth. This application must be made while the child is a minor. In addition, if the child is over ten years old, they must show that they are of good character
    • They have lived in the UK for the first ten years of their life, during which time they were never out of the country for more than 90 days a year (section 1(4) of the 1981 Act). This application can be submitted at any time, even after the child has turned 18. Applicants will need to show that they are of good character. 
    • They are and have always been stateless, and lived in the UK for the five years prior to the application, during which time they have not been absent for more than 450 days of their lives (paragraph 3, schedule 2). The application must be made before the child turns 22, and there is no good character requirement.
  2. Children born anywhere where one of the following is true:
    • They would have been born British, or would have an entitlement to register as British, had their father been married to their mother at the time of the birth (sections 4F and 4G). These applications can be made at any time, including after the child has turned 18; and there is no good character requirement.
    • They were born after 1 July 2006 and are not British because their mother’s spouse is not a British citizen, but their biological father is a British citizen (section 3(1)). Interestingly, these applications can be made free of charge. It seems to me that, as it is a section 3(1) registration, it is only open to minors, although this is a moot point for now as anyone currently eligible will necessarily be under the age of 18. There is no good character requirement. 

Children who do not have an entitlement to register as British citizens can apply to register at the discretion of the Home Office. Although officials have the discretion to register any child, they will usually do so when the application meets their guidance. The relevant considerations are 

  • The child’s best interests.
  • The child’s future intentions, in particular that their future lies in the UK.
  • The child’s age: older children have more of a say as to whether they want to become British citizens, and the immigration status of their parents is less relevant.
  • The length of the child’s residence in the UK: older children are expected to have lived in the UK for longer (generally at least two years for children over the age of 13).
  • The child’s immigration status: children with status will have stronger applications to register.
  • The parents’ immigration status: children of settled or British citizens will have stronger applications.

Where a child is over the age of ten, the Home Office will also want to be satisfied that they are of “good character”. 

Permission to remain in the UK for children in care

For children who are not eligible or do not want to become British citizens, it is still important to attempt to regularise their status by making applications for permission to remain in the UK. (This is also known as “leave to remain”.) In certain circumstances, applications for permission to remain can also be a “stepping stone” towards an application to register as British at the discretion of the Home Office, strengthening the argument that the child’s future is clearly in the UK. 

Applications for permission to remain can be made on the following basis:

  1. The child was born in the UK and the parental rights and duties are vested solely in a local authority. In those cases, children can apply for indefinite leave to remain (paragraph 305 of Part 8 of the Immigration Rules).
  2. The child is under the age of 18, has lived in the UK for seven years or more, and it would be unreasonable for them to leave the UK. In those cases, children will usually be granted permission to remain for a period of two and a half years, and be eligible to apply for indefinite leave to remain once they have lived in the UK lawfully for ten years.
  3. The child is in danger of persecution in their home country. In those cases, children can be granted refugee status, valid for five years. After five years, if they are still in danger of persecution, they should be granted indefinite leave to remain. Where the Home Office is not satisfied that the child is in need of protection in their home country, but equally is not satisfied that they are adequate reception arrangements for the child in their home country, they may grant permission to remain instead (paragraph 352ZC of part 11 of the Immigration Rules). Such permission will expire when the child turns 17 and a half, or after 30 months, whichever is the shortest. 
  4. The child is stateless (part 14 of the Immigration Rules). In those cases, children should be granted permission for five years, after which they can apply for indefinite leave to remain.
  5. The child is in care, but there is a realistic possibility that they will return to their parents or country of origin. In those cases, children will usually be granted permission for 12 months.
  6. The child is in care, but there is no realistic possibility that they will be leaving the UK. In those cases, children will usually be granted permission valid for four years.

Options (5) and (6) are not set out in the Immigration Rules, but rather set out as concessions in a Home Office guidance document: Annex FM 3.2: children guidance. In both cases, once four years have passed, if there is no prospect of removal, the child should be granted indefinite leave to remain.

Also, it is always possible to ask for indefinite leave to remain from the outset, asking the Home Office to exercise discretion.

Lastly: even when action has not been taken before the child turns 18, all may not be lost. Paragraph 276ADE(v) of the Immigration Rules allows young adults between the ages of 18 and 25, who have lived in the UK for the majority of their life, to apply for leave on that basis. In those cases, applicants will usually be granted permission for two and a half years, and will be eligible to apply for indefinite leave to remain once they have lived in the UK lawfully for ten years.

EU citizen children or children of EU citizen parents

EU citizen children who live in the UK will need to apply for permission under the EU Settlement Scheme. The Home Office has in fact issued guidance aimed at local authorities with EU children in their care.

Like other EU nationals, children who have lived in the UK for five years or more will be granted settled status; while those who have lived in the UK for less than five years will be granted pre-settled status. Of course, we are here only talking about children who arrived in the UK before 31 December 2020. Those arriving from then on will fall into the previous section.

In addition, children of EU nationals can be granted settled status if one of their parents is granted settled status — no matter what the child’s own citizenship and length of residence in the UK is.

Lastly, it is always worth checking if children of EU nationals who were born in the UK are in fact already British without knowing it. This would happen in the following scenarios:

  1. They were born before 1 October 2000, and at the time of their birth, their parent was exercising treaty rights in the UK. (“Exercising treaty rights” is beyond the scope of this article but basically means that the parent was a worker, self-employed, a student or self-sufficient under EU free movement laws.)
  2. They were born between 2 October 2000 and 29 April 2006, and at the time of their birth, one of their parents was an EU national and had indefinite leave to remain in the UK. If the parent in question is the father, they must have been married to the mother at the time of birth.
  3. They were born after 30 April 2006, and, at the time of their birth, their parent had automatically acquired permanent residence (typically, but not always, because they had by then lived in the UK for five years exercising treaty rights); had permanent residence; or had settled status. For children born before 1 July 2006, if the parent in question is the father, they must have been married to the mother at the time of the birth. 

Section 55: remember the child’s best interests!

Whenever a child is involved, the Home Office must consider the application taking into account the child’s best interests, under section 55 of the Borders, Citizenship and Immigration Act 2009. It would always be helpful for the local authority to tell the Home Office that it believes it would be in the child’s best interests to remain in the UK, and why.

Now read: Building a case based on a child’s best interests: practical tips.

Nath is an immigration solicitor and Senior Caseworker at Islington Law Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi.

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