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Proving paternity in British nationality law: rule change on effect of birth certificates

Being named as father on birth certificate will in future no longer be sufficient to prove paternity in British nationality law where the parents are unmarried. The change is introduced by the British Nationality (Proof of Paternity) (Amendment) Regulations 2015 which amend the British Nationality (Proof of Paternity) Regulations 2006. The changes only take effect for birth certificates issued after 10 September 2015. The change does not affect children or fathers where the birth certificate was issued before 10 September 2015.

Under the new regime the Secretary of State must determine whether a person is the “natural father” of the child, rather than simply “father” of the child. There will no longer be any form of evidence specified by statute, so it will be left to the discretion of the Secretary of State.

In nationality law, the place to which we turn to learn about how discretion will be exercised is normally the Nationality Instructions. These tell us that a DNA test report or court order “may” satisfy the Secretary of State as proof of paternity. There is a list of approved testing laboratories if such a test is needed.

A moment’s thought tells us that the rule change on birth certificates potentially opens a can of worms when it comes to decision making and how to investigate and communicate decisions. DNA tests are likely to become more common. But studies suggest that as many as 1 in 10 children are not genetically related to the person they consider their father, although rates vary in different studies. Where a DNA test has to be commissioned this will be insulting enough to many people, but a significant proportion of those tested will receive some shocking, potentially life changing news. In some cultures this may even place the mother and child in danger.

I once dealt with a case where British citizenship of four of the father’s children was recognised but not of a fifth child. The father himself commissioned DNA tests but these showed that he was not in fact the father. He nevertheless accepted the child as his and pursued the case, which we won under the old version of the regulations. Along the way, though, immigration officials had repeatedly behaved in a highly insensitive manner which potentially exposed the mother to danger.

To see the approach the immigration authorities are supposed to adopt in such cases, turn to Volume 1, Chapter 6, Annex F of the Nationality Instructions:

However, we may normally accept that a man is the father of an illegitimate child if

• paternity has been acknowledged in some other official context – for example, if the child was born abroad and there is reliable evidence that the claimed relationship has been accepted for United Kingdom immigration purposes; or

• he has stated that he is the father and we have confirmation of that from the mother, provided there is no evidence to suggest that their evidence is false (e.g. given in the hope of gaining an immigration advantage)

Under the old appeals regime it was possible to appeal a decision to refuse citizenship to a child in these circumstances. That right of appeal was abolished by the Immigration Act 2014, unfortunately, so an application for judicial review would now be necessary.

Policy SET07 on child entry clearance cases also offers a potential way forward; if British citizenship is refused then an immigration application can be made instead. The section on DNA testing suggests that where one of the “parents” turns out to be another relative entry clearance might still be granted and then goes on:

The ECO must handle such cases with sensitivity as it may not be obvious whether the husband or other family members know of the true relationship and there may be serious repercussions for the wife and child if the information is disclosed (see illegitimacy below).

There may be any number of reasons why a claimed father may not be a child’s natural father including the death of the first husband, rape or adultery.

Illegitimacy

Where DNA evidence indicates that a child may be illegitimate, the ECO should:

  • try to establish the truth of the family circumstances by interviewing the child’s mother as discreetly and sensitively as possible. Referring the case to the UK Visas and Immigration to interview the sponsor should be avoided.

If no information can be elicited from the mother, the best way forward may be to seek information from the sponsor’s representatives (depending on whether they are known to the ECO to be willing to respect the confidence of all parties).

If it appears that an illegitimate child has been brought up as a child of the family, it will normally be appropriate to admit the child under paragraph 297(i)(f). The fact that the sponsor may not be aware that the child is not his natural child should not preclude entry clearance.

The ECO should not routinely disclose information about the DNA report to the sponsor or other family members in cases involving the illegitimate children. However, under the Data Protection Act applicants and sponsors have a right to see personal information about themselves, which we may hold.

I can say with certainty that this policy is not always followed and the suggested sensitivity is not always applied. Nevertheless, this offers a pragmatic way forward where DNA test results come as an unwelcome surprise to the parents.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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