Citizenship by birth, parents' ILR expired

[Fern34]

Hello,
I'm a brazilian citizen and lived in the UK between 1997 and 2005. My daughter was born in the UK in 1998 and we were both granted ILR in 2003. I only found out a few days ago I could have registered her as a citizen at the time. Is it still possible to do so? She is under 18 years old.
Also, her father had ILR at the time of her birth but we weren't married and his name was only added to her birth certificate by the time she was 5 years old. He no longer lives in the UK and his ILR has also expired. Any chance my daughter could still register?
Thank you

[noajthan]

One settled parent is enough.

Do you still have ILR (or have you naturalised)?
If so minor is entitled to register as a citizen unders1(3) of BNA.

Use form MN1.
Do it before age 18.

[Fern34]

Thank you for your reply.
No, I don't as I left the UK in 2005 and it's my understanding it expires if you've been away for over 2 years.

[noajthan]

Thank you for your reply.
No, I don't as I left the UK in 2005 and it's my understanding it expires if you've been away for over 2 years.

Yes, ILR does expire after 2 years. So a 1(3) entitlement can no longer be used.

So only option left is if minor lived her first 10 years in UK (with minimal absences) even if parents were not settled; section 1(4) of BNA.

[Richard W]

I beg to differ. The daughter can register as British using form UKF because her father, although not British, could, while he held ILR, automatically transmit British nationality to any legitimate children born to him in the UK. Section 4G of the British Nationality Act 1981 allows her to register as British, with no time limit. The 'general conditions', which I have overlooked before, are in Section 4E.

The difficult part will be proving that she is her natural father's daughter. I'm not sure about using the birth certificate. If it was modified by a court order to add her father, it may be necessary to find that court order itself to use as evidence. Alternatively, a DNA test may be necessary, and one needs to make sure that the evidence of the test will be acceptable to the Home Office.

[Fern34]

The father's name was added without a court order as the father willingly filed the request. I have read that unless the name was added up to one year after the birth, it won't be accepted as proof.
In case the father provided the DNA test, would the fact he no longer lives in the UK and no longer has IlR, matter?
Thanks

[Richard W]

Do we actually know that the daughter is illegitimate? There's a strange Passport Office process entitled Legitimation and Domicile that notes that whether a child is legitimate or not also depends on the domicile of the father at the time of the birth. One of the weird examples it gives is that, after 1976, all children born to men whose domicile at the time of birth is Jamaica are legitimate. From the table in this process, the same applies to Brazil; reportedly neither country makes a distinction between legitimate and illegitimate children.

Determining domicile can be difficult. However, that process from HMPO does give one clear rule:

The domicile of the father may be presumed to be the country of his birth unless satisfactory evidence to the contrary is produced. In particular, if the father holds a passport issued by the authorities of the country in which he was born it can be safely assumed that the father has retained a domicile of origin, regardless of how long he has lived in the UK, and the relevant laws will be those of that country.

Note that this principle only applies to those born before 1st July 2006.

The father's name was added without a court order as the father willingly filed the request. I have read that unless the name was added up to one year after the birth, it won't be accepted as proof.

The legal position is that birth certificates issued within one year and before 10 November 2015 provided such proof.

However, in other cases, there is the less clear requirement that the alleged father must satisfy the Secretary of State that he is the natural father of the child. I have not found a policy statement as to what evidence will and will not be accepted.

Moreover, these rules apply only to the paternity of illegitimate children (before 1st July 2006) or whose parents were not married to one another (on and after 1st July 2006).

I believe a plausible birth certificate should suffice for legitimate children whose parents weren't married to one another, for example a British birth certificate, but I am open to correction. So if Fern34's daughter is actually legitimate, her birth certificate may well suffice - she would have been born British. Does anyone know better about the quality of evidence required? Evidence that the parents lived together (if they did) at the time of birth might help.

In case the father provided the DNA test, would the fact he no longer lives in the UK and no longer has IlR, matter?

Legally, it makes no difference.

[noajthan]

This is becoming seriously misleading and that is a major concern.

UKF:
Form to register as a British citizen by a person born before 1 July 2006 to a British father and whose parents were not married.

The parents are not British.
The parents' ILRs have expired.

Unfortunately for ambitions of citizenship, the minor is (apparently) no longer in UK;
minor has no evident connection with UK;
minor did not maintain a long enough connection (10 years from birth) by living in UK in her own right;

The mere fact of being born on British soil to non-British parents and living in UK temporarily does not make one British.

And the opportunity to avail of the entitlement to register that was created for OP's daughter (due to a parent/OP becoming settled) has now passed.

[Casa]

I agree with Noajthan and I recall fellow Moderator CR001 previously posting her concerns about the misconception on the use of the UKF route to BC.

[CR001]

+1 Noajthan
+1 Casa

[Richard W]

This is becoming seriously misleading and that is a major concern.

UKF:
Form to register as a British citizen by a person born before 1 July 2006 to a British father and whose parents were not married.

Actually, the title on the application form is:
Form UKF: Application for registration as a British citizen by a person born before 1 July 2006 whose parents were not married

The published documentation on form UKF is far from consistent. It is as though some authors thought the legislation only applied to children of British nationals. For example, the guide for the form only mentions having a British father in the title. In the body, on p4, it says:

The requirements you have to meet and the citizenship you will acquire if your application is successful
You will be entitled to registration if:

• you were born before 1 July 2006, and
• your mother was not married to your natural father
• you have never been a British citizen
• you would have become a British citizen automatically if your parents had been married (see below), and
• the Secretary of State is satisfied that you are of good character.

There is nothing there about the father being British!

Now turning to the Nationality Instructions, in Chapter 9 Registering Minors at Discretion one will find Section 4G mentioned (as '4F to 4I') under Paragraph 9.9 Children of British citizen and ‘settled’ fathers whose parents were not married; the reader is referred to Chapter 7A.

In Chapter 7A: Registration of Persons born before 1 July 2006 Whose Parents were Not Married one will find the following instructions on p2:

3. Application Forms
An application for a child under the age of 18 (under section 4F) should be made on the minors’ application form MN1.

An application under sections 4G-I should be made on form UKF.

So, as three moderators appear to have ruled that the Nationality Instructions are clearly wrong, what form should be used for registration under Section 4G when the natural father is not British but merely settled?

The parents are not British.
The parents' ILRs have expired.

Unfortunately for ambitions of citizenship, the minor is (apparently) no longer in UK;
minor has no evident connection with UK;
minor did not maintain a long enough connection (10 years from birth) by living in UK in her own right;

The mere fact of being born on British soil to non-British parents and living in UK temporarily does not make one British.

Do you agree that if the daughter be legitimate, she is British? You did note that the father was 'settled' at the time of her birth, didn't you?

And the opportunity to avail of the entitlement to register that was created for OP's daughter (due to a parent/OP becoming settled) has now passed.

Yes, I agree that the provisions for those born insufficiently British but who then subsequently absorb enough Britishness to cross the threshold are no longer available to the daughter. She also missed out on the opportunity for registration to cure illegitimacy (if she was), as did others now using form UKF. (Not all missed out through parental inaction; some illegitimate children were refused naturalisation and must now make use of UKF.)

If you think the daughter is not entitled to register under Section 4G, perhaps you could explain why she is not so entitled. The only reason I can think of (unless she is not of good character) is that possibly she is already British. It might even be worth applying for registration even if she is legitimate; that protects against any later challenge to her legitimacy.

[Wanderer]

UKVI web page says:

https://www.gov.uk/government/publicati ... n-form-ukf

Form to register as a British citizen by a person born before 1 July 2006 to a British father and whose parents were not married.

[Richard W]

I agree with Noajthan and I recall fellow Moderator CR001 previously posting her concerns about the misconception on the use of the UKF route to BC.

That had me worried too, but I couldn't see why Section 4G didn't apply, and UKF seems to be the prescribed form, though it also seems that the form does not cater well for this case.

[noajthan]

If you think the daughter is not entitled to register under Section 4G, perhaps you could explain why she is not so entitled. The only reason I can think of (unless she is not of good character) is that possibly she is already British. It might even be worth applying for registration even if she is legitimate; that protects against any later challenge to her legitimacy.

Because, as per my understanding, 4G is to address an anomaly whereby illegitimate children born before 2006 could be citizens via a British mother but not via a British father.
4G came in to right that wrong.
So its all about British fathers, as per:

Sections 4F to 4I of the British Nationality Act 1981 came into force on 6 April 2015 and provide a number of registration routes for those born before 1 July 2006 who would have automatically become British citizens, or would be entitled to registration under other provisions of the British Nationality Act 1981, had their parents been married at the time of their birth

OP doesn't need to look towards this 4G as section 1(3) of BNA already applied to them, regardless of their marital status;
ie they were not excluded from registering the child due to their marital status.

Note I do not know much about 4G which is why I didn't bring it to the table. I am selective with the areas I post about. I believe that is vital in a forum such as this.

The mere fact of being born on British soil to non-British parents and living in UK temporarily does not make one British.

Do you agree that if the daughter be legitimate, she is British?

No, the marital status makes no difference, the father is not British, (nor mother).

For a UK-born child, Section 1(3) of BNA does not require a couple to be married (it does not even require 2 parents to be around), it just needs one parent to be settled.

And the form to register a minor when parent is not a Brit but is settled is MN1.

Section 1(4) of BNA didn't kick in as minor does not appear to have stayed in UK long enough.

4G is to address another use-case that these actors cannot use.

I know HO & UK gov does not work on common sense but what aim could possibly be served by 4G if it was about permitting the registering of illegitimate minors (of any nationality of parents) as citizens?!
That is if:

• the minor is a child of non-Brits;
  neither parents nor child have any long-term connection to UK;
  parents not settled;
  minor having no demonstrable future in UK;

- there is no sense whatsoever in having a clause in UK immigration policy/law so as to register such a case.

This case is a case in point. 4G operating in the proposed way (if it applied to non-Brits) makes no sense.

• the family left UK;
  the minor was not ever British and has no reason to be British;
  the umbilical cord to Blighty is cut;

Family including minor are presumably living fulfilling lives elsewhere as there are no signs (non stated) of plans to return.

Unfortunately for her, OP's daughter had her window of opportunity when at least one parent was settled; ie by virtue of the generous section 1(3) (with no constraints imposed such as marital status).
She missed it.

[Richard W]

If you think the daughter is not entitled to register under Section 4G, perhaps you could explain why she is not so entitled.

Because, as per my understanding, 4G is to address an anomaly whereby illegitimate children born before 2006 could be citizens via a British mother but not via a British father.
4G came in to right that wrong.
So its all about British fathers.

We're now coming down to the question of what Parliament intended. The complete anomaly was that legitimate and illegitimate children were treated differently. That is what the text of the amendment (Immigration Act 2014 Section 65) addressed. If it was intended to remove the anomaly only when the natural father was British, the drafters failed miserably.

Also, her father had ILR at the time of her birth but we weren't married and his name was only added to her birth certificate by the time she was 5 years old.

Legitimacy, not marital status, is what is in the definition of 'father' for births before 1st July 2006.

The mere fact of being born on British soil to non-British parents and living in UK temporarily does not make one British.

Do you agree that if the daughter be legitimate, she is British?

No, the marital status makes no difference, the father is not British, (nor mother).

For a UK-born child, Section 1(3) of BNA does not require a couple to be married (it does not even require 2 parents to be around), it just needs one parent to be settled.

The claim to be British that I see derives from Section 1(1)(b) "settled in the United Kingdom". The natural father was settled in the UK at the time of birth; for the daughter to be British, 'natural father' has to be turned into 'father as defined in the Act' in some way. Legitimacy would do it, otherwise the route is registration under Section 4G. For a birth nowadays, an accepted DNA test would effect the conversion.

And the form to register a minor when parent is not a Brit but is settled is MN1.

Form T can also be used in some cases. (It might even be better if ILR was obtained by suspected fraud!)

I know HO & UK gov does not work on common sense but what aim could possibly be served by 4G if it was about permitting the registering of illegitimate minors (of any nationality of parents) as citizens?!
That is if:

• the minor is a child of non-Brits;
  neither parents nor child have any long-term connection to UK;
  minor having no demonstrable future in UK;

- there is no sense whatsoever in having a clause in UK immigration policy/law so as to register such a case.

See above - blanket removal of an anomaly. UKF is also a lot cheaper than MN1. Many children were not naturalised because of the expense of MN1 even when it was cheaper than today, with dire consequences today.

[Casa]

(It might even be better if ILR was obtained by suspected fraud!) How has this helping the OP? Isn't that what this thread is about?

[noajthan]

And the form to register a minor when parent is not a Brit but is settled is MN1.

Form T can also be used in some cases

Yes it's a given that T applies to some people, that's why it exists. But it does not apply when a parent is settled which was the reason for mentioning MN1 in the context in which it was mentioned.
So it is ridiculous to mention another random form that applies in another unrelated scenario when the statement was made solely in answer to a previous question of yours.

Misunderstanding and yet over-analysing almost every sentence is not helping the OP.
Kindly cease and desist from doing that.

Form T is useless & inapplicable in this case.
Section 1(4) of BNA has already been mentioned and discounted with good reason.
The minor has evidently not lived in UK for 10 years from birth.
(OP has not returned to say minor has lived in UK for 10+ years from birth).

Plucking at straws and throwing up random bits of BNA is confusing for the OP and is not helping the OP one jot.

Meandering off in yet another direction when a previous suggestion is refuted similarly does not help much; it confuses and simply scares the OP away.
Kindly cease and desist from doing that.

[Richard W]

We're now coming down to the question of what Parliament intended.

The OP may find it helpful to know that Section 4G was added to remove discrimination against men. Thus I believe Parliament did intend the changes in the law to benefit her daughter, by removing discrimination against her daughter's father's ability to transmit British nationality to his children born in the UK.

Lord Avebury moved the amendment that inserted the clauses on 19 March 2014, claiming it was so that the UK could withdraw its reservation to the 1979 Convention on the Elimination of All Forms of Discrimination against Women and ratify the European Convention on Nationality.

[Casa]

I think much can be learned from the fact that the OP ceased to contribute way back in the thread.

[Richard W]

And the form to register a minor when parent is not a Brit but is settled is MN1.

Form T can also be used in some cases

Yes it's a given that T applies to some people, that's why it exists. But it does not apply when a parent is settled which was the reason for mentioning MN1 in the context in which it was mentioned.

That surprises me. The notes make no mention of not being able to use it for a minor with a settled parent. My point was that there may be more than one form that is appropriate for a minor. And, if Form MN1 is not appropriate, then Form UKF would be appropriate.

Actually, could you please share with us (or me by PM, if you think it is clutter) why the daughter cannot still be registered under Section 1(3) (parental ILR etc. after birth)? Is there case law to this effect? It is not clear to me that the registration had to be done while her mother was still settled, and this registration is by entitlement, not at discretion, so, for example, I cannot see where it would be relevant where her future would lie. There is nothing in the Nationality Instructions Chapter 8: Registration by Entitlement of Persons Born in the United Kingdom on or after 1 January 1983 about checking that the parent is still settled.

[Richard W]

I think much can be learned from the fact that the OP ceased to contribute way back in the thread.

What, that she's in the New World and has gone to church this morning? She may also have discovered that her daughter is legitimate as far as British nationality law is concerned, and therefore our discussions about registration as British are irrelevant.

[Casa]

I think much can be learned from the fact that the OP ceased to contribute way back in the thread.

What, that she's in the New World and has gone to church this morning? She may also have discovered that her daughter is legitimate as far as British nationality law is concerned, and therefore our discussions about registration as British are irrelevant.

,,,or she's simply decided that much of the discussion is irrelevant.

[Fern34]

Thank you for all the advice and comments to my question.
I came to this forum to find out if anyone knew if one can register a child as a british citizen if the parent was settled at the time of birth but it's no longer settled in the UK.
I spent a couple of days looking at the legislation and many websites on the web and wasn't able to find a straight answer to that.
The legislation states a child is automatically a British citizen if parent is a citizen or settled at the time of birth, but it's unclear as to what happens if the parent is no longer settled. As this is an entitlement, I thought I should check to be 100% sure, as I missed the opportunity of registering her myself when I became settled.
I just couldn't find clear information that says 'child no longer meets the criteria because parent is no longer settled', or in case of children of unmarried fathers, 'father is not British or 'father no longer holds ILR'.

[Richard W]

I'm not sure if you, Fern34, consider the questions answered, but the answers split as following, depending on whether your daughter is legitimate. If her father was domiciled in England when she was born, she would not be legitimate, because you and the father have never been married.

British citizenship can only be lost by renouncing it or by being deprived of it for being very bad.

If your daughter is legitimate, she was born British by BNA 1981 Section 1(1)(b), because her father held ILR at the time. In principle, you can just apply for a passport, but it may be necessary to obtain a 'nationality status letter' to assure the Passport Office that she is indeed British.

If your daughter is not legitimate, it might still be possible to register her, before she reaches the age of 18, on the basis of BNA 1981 Section 1(3), because you held ILR at some time after her birth. Noajthan believes it isn't possible, while I simply don't know. The appropriate form would be BN1, and there is a fee of nearly £1,000. If you can achieve this, you may have to appeal in some form.

Also, if your daughter is not legitimate, I believe it is possible to register her as British under BNA 1981 Section 1(1)(b) and Section 4G on the basis that her father held ILR when she was born. This can be done in slow time, but is not retroactive; she will only be British from when citizenship is granted. As far as I can tell, the correct form is UKF, and the fee is £80. Noajthan, Casa and CR001 believes I am wrong, because they think this method is restricted to the children of British fathers. I can see no such restriction in the law.

[noajthan]

If your daughter is not legitimate, it might still be possible to register her, before she reaches the age of 18, on the basis of BNA 1981 Section 1(3), because you held ILR at some time after her birth. Noajthan believes it isn't possible, while I simply don't know. The appropriate form would be BN1, and there is a fee of nearly £1,000. If you can achieve this, you may have to appeal in some form.

Also, if your daughter is not legitimate, I believe it is possible to register her as British under BNA 1981 Section 1(1)(b) and Section 4G on the basis that her father held ILR when she was born. Noajthan, Casa and CR001 believes I am wrong, because they think this method is restricted to the children of British fathers. I can see no such restriction in the law.

The instructions for 1(3) are somewhat unclear.

8.3.3 ...
a Home Office stamp in a passport ... showing the holder has indefinite leave to remain in the United Kingdom or that there is no limit on his/her stay here

8.3.4 Where the application is based on the relevant parent’s settled status, and he or she appears to be exempt from immigration control, or where there is otherwise any doubt about whether he or she is settled in the United Kingdom, the application should be referred to Immigration for confirmation of the parents' immigration status.

Note use of present tense: "has", "to be" & "is".
It doesn't clearly (or additionally) state "has had (a stamp)" or "has been exempt/settled".
And an expired ILR clearly imposes a limit on the bearer's stay in UK.

And if "confirmation of the parents' immigration status" is required by referral to some higher authority then it suggests current status is significant; it also suggests any status ever held is not good enough.

That is reason for my doubt regarding invoking the 1(3) entitlement now which, without doubt, did exist when parents had ILR around 10 years or so ago.

I'm not speaking for 4G at all as I don't know about it other than what can be seen on the initial page on Gov UK website and the headline title to the documents.

Not many causes with lapsed historical ILR seem to come up. One way to test the applicability is to go ahead and apply if the benefit of citizenship outweighs the risk of losing the fee.
Form for 1(3) is MN1 not BN1.