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Discretionary registration of children as British

Discretionary registration of children as British

In the case of R (on the application of FI) v Secretary of State for the Home Department [2014] EWHC 2287 (Admin) the court was asked to review a decision to refuse to register as a British citizen a 14-year-old who had been settled with Indefinite Leave to Enter the UK for 8 years and was coming up to his GCSEs.

Passport production line
How a passport is made by ukhomeoffice, on Flickr

The decision-maker had treated the fact that neither parent was British as determinative of the application. That raised some questions about how Chapter 9 of the Nationality Instructions guidance on discretionary registration of children had been interpreted and whether the exercise of the discretion had been compatible with the section 55 duty to make arrangements for ensuring that functions, including nationality functions, are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. FI contended that either the policy was capable of being interpreted in a s55 compliant way but had been misapplied in this case or that the rigid approach taken by the decision-makers was driven by the policy and thus the policy was unlawful because it ‘herded’ the decision-makers to an unlawful decision.

This helpful judgment, although decided on a narrow basis, confirms that Chapter 9 is to be read alongside — and tempered by — ‘the statutory s 55 guidance ‘Every Child Matters’, re-iterates the importance of the ‘less tangible’ benefits of citizenship for children which include a sense of belonging and certainty about their futures and provides a useful example of a flawed approach to an important issue for a child – whether they belong to a country which is so much a part of them.

Amanda Weston
Amanda practises across a wide range of public and administrative law fields with an emphasis on civil liberties and vulnerable client groups. Substantive areas of her public law practice include community care, mental health and mental capacity, unlawful detention, national security measures such as deprivation of citizenship, local authority, prison law, human rights and discrimination. She has particular in cases raising EU law in the justice and security context and challenges to government policy.

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