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Briefing: nationality and children in care
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Briefing: nationality and children in care

In August, Nath Gbikpi reported for Free Movement on R (Y) (Children In Care: Change of Nationality) [2020] EWCA Civ 1038. In that case, the Court of Appeal found that section 33 of the Children Act 1989 did not entitle the local authority to apply for British citizenship for two siblings in their care, in the face of parental opposition and where that may lead to a loss of their existing citizenship, without first obtaining approval from the High Court (see paragraph 24).

This note looks at the implications of the judgment for local authorities and for lawyers advising them.

Getting advice on the nationality law of other countries

Matters of foreign law are questions of fact in UK courts. They are thus determined by evidence, including expert evidence from lawyers, rather than country evidence. I frequently receive requests for advice that, on closer examination, turn out to be requests for advice on foreign law.

An experienced nationality lawyer, in particular one fluent in the language of the country in question, may be able to read foreign laws and government websites more easily and quickly than a social worker. But unless they are expert in the laws of a particular country, their research will not yield expert evidence. They can identify possible issues and questions to ask experts, but their advice on the foreign law carries no special weight. They are even less likely to be expert on matters of practice and procedure in the other country.

The children in Re Y were born of Indian parents. It is not difficult, armed with a search engine or with reported cases, to establish that India prohibits dual nationality. It is necessary however, when considering the consequences of acquisition of British citizenship for children of Indian origin, to be aware of, and to take into account, the possible mitigating effects on not being citizens of India if they are entitled to Overseas Citizenship of India. That is a very specific Indian provision, not replicated in the laws of other countries. Nor can it be compared to British Overseas Citizenship: it functions like a visa, its effect being primarily vis a vis India rather than, as with British Overseas Citizenship, primarily vis a vis third countries.  

Many countries that prohibit dual nationality make limited exceptions to this rule. For example, Germany permits its nationals to hold citizenship of another EU member state. A vague understanding of a country’s laws on dual nationality is not sufficient to be confident of making decisions in the best interests of a child.

Local authorities should look at the qualifications of the counsel they are instructing to determine whether counsel is an expert on the laws of any foreign country. If not, they should consider carefully whether they want counsel to look at questions of foreign law at all, and if so, to what purpose. Counsel should always be alive to the distinction between areas where they are providing legal advice, areas where they are providing expert advice, and areas where they are advising on instructions to be given to, and questions to be asked of, experts 

Evidence of law and practice in a county is most likely to be obtained via its embassy or High Commission, in some cases directly from its national authorities or, in the alternative, from a practising nationality lawyer in the jurisdiction. Embassies and High Commissions can be helpful sources of advice but should not be approached without a parent’s consent if that is possible to obtain: whether they have previously articulated it or not, the child’s parents may have a fear of the authorities in their country.

The importance of nationality

The Court of Appeal in Re Y distinguished applications for leave to remain and for an additional citizenship “where the child is gaining a benefit and losing nothing”, from cases where a successful application for citizenship would mean that the child could lose another nationality: a “momentous step with profound and enduring consequences” (paragraphs 18 and 23). 

Significant harm

In Re Y  it was held that the test in section 100 of the Children Act 1989 for a local authority to be given permission to apply for the exercise of the inherent jurisdiction was met. That test includes:

100(4)(b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

The significant harm was identified as the prospect of removal from the UK at the age of 18. In Re Y  the children had been born in the UK. They were not, therefore, vulnerable to removal while they were children in care. They did not have leave to remain but, being born in the UK, they did not require it. In any event, it appears from the evidence that an application for leave to remain made while they were children would have been granted, given their length of residence in the UK and the views of the local authority. On turning 18, with 18 years’ lawful residence behind them, they would be unlikely to face removal and only in the gravest of cases might they face deportation.

Where no real risk of removal from the jurisdiction can be identified, it may be necessary to put a case for the exercise of the inherent jurisdiction on the basis of the effect on the child’s sense of identity and development of not having British (and, in some cases, any) citizenship. Nationality lawyers may be able to provide relevant information, but other experts, such as independent social workers and psychologists, may also be called upon.

Where there is no risk of loss of nationality

The court held that an application under the inherent jurisdiction must be made, in the absence of parental consent, in cases where the result could be a loss of nationality. But as Nath emphasises in her article, such an application is not a prerequisite for action in cases where there is no risk of loss of nationality.  These include all cases where what is sought is an immigration status, not a nationality, and many nationality cases. The court in Re Y was critical of the local authority’s failure, earlier or at all, to try to regularise the children’s immigration status (paragraph 20). 

Timing

In some cases it will be possible to make an application for the child to be granted British citizenship under the exercise of the wide-ranging power in section 3(1) of the British Nationality Act 1981.  

An entitlement also arises, under section1(4), for those born in the UK, who have lived in the UK for the first ten years of their life, and have not been absent from it for periods in excess of those specified, to register as British citizens at any point in their lives, including after they have turned 18. 

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Both applications are subject to a stringent good character test. This is one reason for making the application as soon as possible, to avoid allowing the possibility of refusals on the grounds of character to arise.

Specific provisions apply where a child is stateless. For example, a person born in the UK can apply up to the age of 22 to register as British under paragraph three of Schedule 2 to the British Nationality Act 1981 after five years’ continuous residence if stateless, rather than having to wait for ten.  There is no good character test for registrations of stateless children and young people under this provision.  

You may see cases where parents have not registered their child with the authorities of their home country so that the child does not acquire the nationality of that country and can apply for British nationality on the basis of the child’s statelessness. Examples are nationals of India and some Latin American countries. Such a strategy may leave the child stateless for lengthy periods and local authorities may find their analysis of the child’s best interests in conflict with the wishes of the parents. As set out above, not only the practical consequences of statelessness are in issue, but the impact of statelessness on the child’s sense of identity.

Counsel expert in nationality law can provide advice on the most appropriate application and draft submissions. The Project for the Registration of Children as British Citizens does important work in this area and produces many useful resources.

Consent

Re Y was a case in which the parents objected to putting the children’s claim to Indian nationality at risk. The court held — following Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, and Re C (Children) [2016] EWCA Civ 374 — that section 33(3) of the Children Act 1989 did not give the local authority power to override parental wishes on a matter of such magnitude.

The court did not examine the relevant nationality guidance. Interestingly, this distinguishes between cases where there is an entitlement to register, such as under section 1(4), where the consent of the parents is not required, and cases where the Home Office must exercise discretion, such as section 3(1), where consent is required. There is no suggestion in Re Y but that in both cases, where the parents did not consent, an application would need to be made for the exercise of the inherent jurisdiction.

It would also be appropriate to apply to the High Court where the parents disagreed. Again, the guidance provides a steer, evidencing an unwillingness on the part of the Home Office to register a child as British where the parents disagree. 

There is no suggestion in the case that the intervention of the High Court would have been needed had the parents consented to the application for British citizenship. While section 33 of the Children Act 1989 is concerned with the extent to which local authorities can limit the powers of parents to make decisions for their children, section 100 could be relied upon to invoke the inherent jurisdiction of the High Court where a risk of serious harm to the child was identified, including in cases where parental consent to the proposed course of action was not in issue. Moreover, the local authority would be expected to justify the absence of parental consent to the Home Office in the course of the application.

One example of a case in which it might be appropriate to apply to the High Court to exercise its jurisdiction is where the parents consent to the application but the child does not. Consideration should be given in all cases to finding a way for the voice of the child to be heard.

The court in Re Y held that the local authority should have considered whether an application for citizenship could be deferred until the children were older and better able to express an informed view (paragraph 21).  Where an application is deferred it is likely that efforts will need to be made to regularise the child’s immigration status.  

Again, the nationality guidance is relevant: 

If it becomes apparent during the consideration of the application that the child does not wish to become a British citizen, you should consider whether it would be right to refuse the application. It is a matter of judgement whether a child is of sufficient intelligence and understanding to make an informed decision on this. The older the child is, the more appropriate a refusal is likely to be.

The question this begs is how it would become apparent — indeed how the child would even know — that an application was being made. Here again, the principles of the best interests of the child and of the voice of the child should guide local authority decision making. A “momentous step with profound and enduring consequences” is one in which the child should be involved if at all possible and to the extent possible. 

Nationalities other than British nationality

Everything said about the importance of nationality in Re Y applies not only to British citizenship but to other nationalities too. For example, a child who is a dual national of the UK and another European country gains rights of free movement under EU law from their EU nationality. Where a child has been taken into care there may be risks of contact with the birth parent being lost, and of not being able to obtain essential documents, particularly if the parents are removed from, or leave, the UK. It is important to carry out a best interests’ assessment to determine whether steps should be taken to assert the child’s right to another nationality, for example by applying for a passport, or to apply for that other nationality where conferral is not automatic. The safety of both parents and child should be considered, especially where asylum is in issue and this is a reason to seek parental consent wherever possible.

Happily, in many countries, applications for citizenship and for identity cards if not passports, are less expensive than in the UK.

One thing of which to be aware is that in some countries a child or young person with dual nationality must make an election as to their nationality on reaching the age of majority or shortly thereafter. The age of majority may be 18 or 21, depending on the jurisdiction. Again, counsel expert in nationality law can advise at the time of making the application on how to research this.

Alison Harvey

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.

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