British Passport refused for an adopted child of EEA citizen

[Gilraena]

Hi all, the Passport office refused to issue a British passport for our adopted son. He was born in the UK to British parents in 2016, we adopted him through the domiciliary adoption( so done i the UK by the UK court order etc with no Hague Convention involvement) when he was 14 months old. No previous passports for him. We are Eea citizens, in the UK since 2006, with PR status since 2011. Application was supported with all required documents, as we double and triple checked with both passport office and immigration office about that.
The refusal simply stated that because our son is adopted and we are not British the application has been failed. It was suggested we register him as a British citizen, but again the immigration Office said it would be rejected as he already is a British citizen, both by being born in the UK to British parents after 1981 (so fulfills section 1a of British Nationality Act) and then because by being adopted by settled EEA citizens, he had gained the rights of our biological child and therefore fulfils both the Eea treaty rights conditions for British citizenship and section 1b of BNA81.
The passport office are also in agreement with us it should have not been rejected, they put a complaint on our behalf to their Head Quarters, however the examiner who revisited the case says it cannot be claimed under the treaty rights route, but offers no explanation or any way round it. We offered to send our son's original birth certificate as well as his birth mother's birth certificate, but they were not interested. Is there anything else we can do? Please help!

[Obie]

I think passport office are wrong.

If the child is British, he or she does not lose citizenship as a result of the adoption.


If you can prove that at birth, the biological parent of the child were indeed british or settled person, the child does not subsequently lose that citizenship because of adoption.

[Gilraena]

Thank you, it's reassuring to hear someone else thinks the PO are wrong. As our son was born in 2016,so nearly 5 years after we gained the PR status, we thought claiming the passport via EEA treaty rights route was obvious. But apparently not..
We just wanted his passport asap as he hasn't met his grandparents yet and I go back K to work in September... We thought getting British passport first would be more straightforward and quicker than obtaining our home country one through an embassy (both countries allow dual nationality so that's not an issue)..
Is there any other way to appeal this decision? Will we need to get legal advice?
Proper nightmare...

[Obie]

Firstly do you know the status of the child's biological parents?

[Gilraena]

We know the birth parents were both born in the UK to most likely British parents (there is a possibility to check the birth grandparents status through the GRO), the local authority our little one comes from are willing to request birth mum's birth certificate from the GRO and also there are social workers who know the birth parents and their history since they were children... But like I mentioned, the Passport office were not interested in us supplying this evidence. They also couldn't guarantee that if we supplied new application with the above documents it would be successful... Nobody else can submit the application as we have full parental responsibility now. So we seem to be stuck...

[Obie]

The passport office are wrong, and Legal action can be taken against them.

Section 1(5) and 1(5A) of the Nationality Act 1981 is what governs adopted children.

It only has applicability if the adopted child is not British.

If they are British, they do not lose it as a result of being adopted.

They are correct in that the child cannot derive citizenship from you, as either you or your partner were not british on the day of the adoption, but if the child is a British, then section 1(5) or 1(5A) is not engaged.

(5)Where—
( a )any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory] makes an order authorising the adoption of a minor who is not a British citizen; or
(b)a minor who is not a British citizen is adopted under a Convention adoption,that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be effected under the law of a country or territory outside the United Kingdom.
(5A)Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—
( a )the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and
(b)in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom or in a designated territory.]

[Gilraena]

Thank you, that is very helpful! We are at our wits end now.. We never wanted our boy to be deprived of anything because of adoption and during the adoption process we promised we would do everything in our power to maintain his heritage and cultural background... With the BREXIT looming over we are not sure we will be able to keep that promise, as who knows what status he will have if he only has our nationality... Also, when he is an adult he has a right under the Adoption and Children Act 2002 to view his birth records etc. What will happen if he is denied if he has no British nationality confirmed?
It all seems so unfair towards him!
Anyway, rant over, thank you for reading. We are looking into getting some legal advice...

[Obie]

Try and obtain records of the child''s parent and grand parents. Then approach the passport office again.

Alternatively you can apply for confirmation of British Citizens status, and use that to apply for a passport.

You cannot register the child. A British child cannot be registered.

Don't allow Brexit to stress you. You will keep your promises inspite of it.

[JAJ]

Short answer- As Obie has noted- a British child does not lose citizenship upon being adopted out to non-British parents.

Longer answer. I think the problem may be that you have not presented sufficient evidence to show that the child is in fact British. Normally a U.K. adoption order automatically confers British citizenship but only if at least one of the adoptive parents is a British citizen. You need to be able to demonstrate that your child is British based on the natural parents status (simpler to do so through the mother). As it's likely that the mother was born on or after 1.1.1983 you will also need to show that at least one of her parents was a British citizen or settled in the U.K. when she was born.

Because this is a fairly unusual case- U.K. adoption of a British child by non-British parents- I think it would be worthwhile sending the necessary documentation to the Home Office to get a Nationality Status Letter for your child (Form NS). There is a fee but it gives a document that is valid for life (unlike a passport), creates a record on Home Office systems and is accepted by the Passport Office. Otherwise your child could be facing the issue of proving citizenship every time his British passport comes up for renewal.
https://www.gov.uk/government/publicati ... us-form-ns

[Obie]

We know the birth parents were both born in the UK to most likely British parents (there is a possibility to check the birth grandparents status through the GRO), the local authority our little one comes from are willing to request birth mum's birth certificate from the GRO and also there are social workers who know the birth parents and their history since they were children... But like I mentioned, the Passport office were not interested in us supplying this evidence. They also couldn't guarantee that if we supplied new application with the above documents it would be successful... Nobody else can submit the application as we have full parental responsibility now. So we seem to be stuck...

I think OP should take the local authority up on their offer. If the parents are born after 01-01-1983, then we will need information in regards to the grandparent of the mother's parent.

If proven once, and recorded, i do not think it will need to be proven all the time. This approach of having to prove was adopted by passport office in regards to EEA national from A8 countries, whose children were granted citizenship without checks in regards to WRS.

[JAJ]

If proven once, and recorded, i do not think it will need to be proven all the time. This approach of having to prove was adopted by passport office in regards to EEA national from A8 countries, whose children were granted citizenship without checks in regards to WRS.

Except that the children concerned were not granted citizenship. The Passport Office doesn't grant citizenship to anyone. They were granted British passports without sufficient evidence of citizenship. There is a significant difference between the two situations. If someone was granted a Home Office Certificate of Registration or Naturalisation without full compliance with the statutory requirements, that person's British citizenship remains valid unless there is scope to treat as a nullity. Which is unusual.

On the other hand- if the Passport Office grant a British passport to a non-citizen, the passport is invalid and may be withdrawn, or renewal denied, at any time. The best one can normally hope for in that situation is for the passport application to be treated as an undetermined application for British citizenship.

Due to the unpredictability of the Home Office/Passport Office and the many instances where records have been lost, I think obtaining a certificate of status through form NS is prudent for all but the simplest claims to British citizenship. Similar to an insurance policy for citizenship. But it's understood that others may feel it is an unnecessary precaution.

[Obie]

With the utmost respect i do not agree with the above for 2 reason.

1. It is inconsistent with the 1971 Act.

2. It is inconsistent with jurisprudence of the UK courts.

As a matter of law, a Person's citizenship is proven by the issuance of a passport. The passport proves a person's right. It does not grant it, it proves the existence of it. It proves that on a balance of probabilities, the Secretary of State was satisfied that the Person was a British Citizen when it was issued. It has similar evidential value to a Naturalisation certificate or anything else, although mindful of the fact that the Naturalisation Certificate actually grants the right under the power conferred on the Secretary of State under 6(1) or 6(2) as the case may be. I do not accept that it does not. Even though the issuance of passport is not a statutory but prerogative power, it has significance in our statue, as a document evidencing rights.

Section 3(9) of the 1971 act, confirms a person can provide a passport as evidence of their nationality. So i do not accept that a passport has no meaning. Once issued it has a meaning and evidential strength. If the Home Office decide to content that a person is not British, the burden lies on her to demonstrate this, and she will have to provide cogent evidence to demonstrate that, in the same way, as she will need to demonstrate a Naturalisation certificate was improperly issued.

23.The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional pubic law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport,the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test.

[Gilraena]

Thank you all for taking time to reply! It all makes complete sense and I wish we'd known that before applying for his passport - we should have had supplied the birth parents docs as well as ours. Having said that, neither the PO nor Visa and Immigration mentioned any of it and I consulted them many times. Their answer always was to go down the Eea treaty rights route... Anyway, I don't know if it is the case of our situation being unusual (but not as rare as you might think), but it might have implications for many local authorities and adoption agencies, as they need to update the information they provide to their adopters. The local authority in our case said they had many EEA citizens adopting with them and the issue never arrived before...Oh well, at least we can try to get the Confirmation of British Nationality letter, but it means he won't go to meet his grandparents any time soon (they can't travel due to health reasons). Life...
Thank you again !

[Obie]

If you get evidence of the child's parent birth or grandparent if parent was born after after 1-01-1983, then you can get a passport in a day, on a same day services.

[thsths]

On the other hand- if the Passport Office grant a British passport to a non-citizen, the passport is invalid and may be withdrawn, or renewal denied, at any time.

That may be true, but it is not applicable here. There nothing to suggest that the person is a non-citizen. The only issue is the suspicion that the passport may have been issued without the necessary checks (trusting the applicant rather than verifying the detail). In my opinion, that is not sufficient to refuse accepting the current passport as evidence of citizenship. And of course the passport office could have handled this a lot better, for example they could have asked for addition evidence once the problem was identified, rather than acting in this (typical) passive aggressive manner.

[Richard W]

The only issue is the suspicion that the passport may have been issued without the necessary checks (trusting the applicant rather than verifying the detail).

The child in question has never held a passport.

[Gilraena]

It appears there is a proper legal loop here... It seems to me that our situation is not covered by any of the legislations, both in the UK and EU. What I struggle to understand is the fact that we can only apply for our son's passport as EEA citizens, so even if we provided the original birth certificates of birth parents and grandparents and the adoption order, evidencing the change of name etc. it could be rejected as the application form is constructed in such way that you provide parents details.. We can't put birth parents details there as they have no parental responsibility anymore...
It's not clear to me which legal act takes priority here, if any. .. For example, if it is BNA81, then supplying birth certificates of birth family would make sense, except the reason mentioned above. Another issue is might not be possible to obtain them - the families of looked after children, removed from them for various reason rarely wish to engage with social services and the information about their eligibility to British citizenship is rarely obtained... I'm probably exaggerating here, but we are talking about the most vulnerable children not having any security at all, not even in regards of their right to live and remain in the UK.
Secondly, if the Adoption and Children Act 2002 as well as the European Convention on Human Rights (ECHR) state that adopted child is to be treated and gains all the rights and entitlements of biological child, plus EEA treaty rights state that children born in the UK(doesn't mention adopted in the circumstances we are in) to EEA citizens with permanent residency are automatically British(as per section 1b of BNA81), then why there is no paragraph anywhere covering our situation: UK born child, adopted (so in theory to be treated as born to the parents) in the UK by EEA parents with PR?
It's so complicated! And fascinating isn't it?

[Obie]

It is a settled matter, that you are the adopted parents, and nothing is going to change that.

However, at the time that child was born, he or she derived citizenship from her biological parents, and hence was a citizen of the UK by virtue of Section 1(1)(a) of the 1981 act.

To apply for citizen, which she acquired independently at birth, you simply need to provide the details of the original parent, but that does not change the current situation.

The purpose of providing the original parent's details is not because they have parental rights, those rights were withdrawn from them following adoption, it is simply to prove that the child is a citizen at birth. This does not change your rights at all.

You can simply write a cover letter setting this out.

[JAJ]

With the utmost respect i do not agree with the above for 2 reason.

1. It is inconsistent with the 1971 Act.

2. It is inconsistent with jurisprudence of the UK courts.

As a matter of law, a Person's citizenship is proven by the issuance of a passport. The passport proves a person's right. It does not grant it, it proves the existence of it. It proves that on a balance of probabilities, the Secretary of State was satisfied that the Person was a British Citizen when it was issued. It has similar evidential value to a Naturalisation certificate or anything else, although mindful of the fact that the Naturalisation Certificate actually grants the right under the power conferred on the Secretary of State under 6(1) or 6(2) as the case may be. I do not accept that it does not. Even though the issuance of passport is not a statutory but prerogative power, it has significance in our statue, as a document evidencing rights.

Section 3(9) of the 1971 act, confirms a person can provide a passport as evidence of their nationality. So i do not accept that a passport has no meaning. Once issued it has a meaning and evidential strength. If the Home Office decide to content that a person is not British, the burden lies on her to demonstrate this, and she will have to provide cogent evidence to demonstrate that, in the same way, as she will need to demonstrate a Naturalisation certificate was improperly issued.

Of course- but it often hasn't worked that way in reality. The Passport Office has- on occasions- re-opened nationality questions on application for a passport renewal. And if a passport has been expired too long (happens sometimes), or lost/stolen (happens a lot), then nationality must be re-evidenced from scratch. In theory the Passport Office should have records of every previous passport issued, but we know that's not been the reality either.

It's not clear why someone would wish to fight their way through the courts to evidence something as critical as British citizenship/passport when the risk could have been avoided by obtaining a separate status document.

[Obie]

I am not seeking to dis your view, or throw any aspersion whatsoever on your advise. For the avoidance of doubt, i do not believe there is anything wrong with a suggestion that a person should apply for confirmation of nationality. I do it all the time for people in care, who are having difficulty in proving their nationality, as their biological parents are not in their lives and hence cannot attend school trips or do basic things for which a passport is required.

Where I have difficulties or disagreement, is the view that a passport has no meaning and it is invalid if a person is not a citizen. That is not a correct position. There are not statutory provision governing the issue of passport, it is simple a prerogative power. Therefore its validity cannot depend on whether a person meets section 1 requirement. Although it is correct that the Secretary of State will not exercise this power, unless she is satisfied that a person is a citizen of the UK. Once exercised, it has legal standing.



The passport office, the Secretary of State and every one in the UK are bound by the law, and the authorities of the higher court.

I am not suggesting for one minute that the issue of passport entitlement cannot be re-opened, but as the court stated, very good reasons are required to do so. I will respectfully go as far as to say, that such reasons should be similar to a reason that will justify a withdrawal of a registration or a naturalization certificate.

Surely, it cannot be proper for the Secretary of State to withdraw a passport arbitrarily or at a whim, without due process, or cogent evidence.

Once proven, and the passport confirms that a person is a British Citizen, i will argue that it is as good as a Naturalisation confirming similar status. The Secretary of State is responsible for both.

I will go as far as to say, based on the authority, that the refusal of passport based on WRS is unlawful, the passport office should go to the Home Office, check that the person did not have WRS, and refuse.

It cannot be proper to refuse, and say, unless your bring a WRS, i will not issue.

Fortunately, i don't believe that is how things works in UK courts, based on my experience.

[JAJ]

It appears there is a proper legal loop here... It seems to me that our situation is not covered by any of the legislations, both in the UK and EU. What I struggle to understand is the fact that we can only apply for our son's passport as EEA citizens, so even if we provided the original birth certificates of birth parents and grandparents and the adoption order, evidencing the change of name etc. it could be rejected as the application form is constructed in such way that you provide parents details.. We can't put birth parents details there as they have no parental responsibility anymore...

For the purpose of section 1(1) of the British Nationality Act 1981 the status of the parents at the time of birth is relevant, not any subsequent developments. (and the definition of "parent" in the 1981 Act is not the same as the concept of "parental responsibility" in the Children Act 1989 and equivalent Scottish legislation).

It's not clear to me which legal act takes priority here, if any. .. For example, if it is BNA81, then supplying birth certificates of birth family would make sense, except the reason mentioned above. Another issue is might not be possible to obtain them - the families of looked after children, removed from them for various reason rarely wish to engage with social services and the information about their eligibility to British citizenship is rarely obtained... I'm probably exaggerating here, but we are talking about the most vulnerable children not having any security at all, not even in regards of their right to live and remain in the UK.

The adoption provisions in the Act are in section 1(5) and only apply to U.K. adoptions (plus the Channel Island, Isle of Man, British territories and certain non-U.K. adoptions such as Hague Convention but only if at least one of the adoptive parents is a British citizen). Where an adoption does not fall into these criteria, including most overseas adoptions or U.K. adoptions by non-British citizens, then the normal remedy is for the child to be registered as a British citizen under section 3(1) of the British Nationality Act 1981 (if the child is not already a British citizen). This allows the Secretary of State to register any child as British- but application has to be made before age 18.

Secondly, if the Adoption and Children Act 2002 as well as the European Convention on Human Rights (ECHR) state that adopted child is to be treated and gains all the rights and entitlements of biological child, plus EEA treaty rights state that children born in the UK(doesn't mention adopted in the circumstances we are in) to EEA citizens with permanent residency are automatically British(as per section 1b of BNA81), then why there is no paragraph anywhere covering our situation: UK born child, adopted (so in theory to be treated as born to the parents) in the UK by EEA parents with PR?
It's so complicated! And fascinating isn't it?

Interesting question. Section 67(1) appears to give a wide-ranging status in law to children adopted after the section came into force (30.12.2005) and I fail to see any exclusion of this application for nationality purposes. There appears to be a conflict between this statute and section 1(5) of the Act and only the courts could conclusively determine what this means. As I understand it, normally a later statute should override an earlier one and the courts should interpret the law as much as possible within the ECHR. This would lead one to expect that the courts would rule that if by some chance your child was not British at birth, he would have become British on adoption- but it is never possible to predict exactly how a court would rule. And legal action is usually not the best way to resolve the issue.

The Home Office Nationality Instructions document on Adoption does not contain any discussion of section 67(1) of the 2002 Act and how it impacts acquisition of British citizenship pursuant to adoption. It may be worth writing to your Member of Parliament and asking him or her to enquire with the relevant Minister if the Home Office has undertaken any such review and if so, what was the outcome.
https://www.gov.uk/government/uploads/s ... option.pdf

[Gilraena]

Thank you, all your answers provide a lot of food for thoughts and are very helpful! I very much appreciate it, as we are trying to gather as much information as possible and get it all sorted out in our heads, before we officially take any actions and make any decisions, whether it's going to be taking a legal route, registering our son as British or getting a letter of confirmation (the last two might be difficult as we have very limited information about his birth ancestors).
Thank you again!

[JAJ]

Although registration as a British citizen under section 3(1) of the Act is an option- I wouldn't recommend it. The reason is that if someone is registered under section 3(1) and has a British citizen natural parent [parent as defined by the Act] at the time of birth, that person becomes a British citizen by descent. Which may impact your future grandchildren if they were born outside the United Kingdom.

I think the best option is to apply for a Nationality Status Certificate on form NS including at least the following: a. adoption details, b. evidence of your own settled status (and that you had settled status at the time of the birth), d. all the information you can obtain about child's birth parents and e. child's original birth certificate (if available). In addition you should suggest that regardless of the child's British citizenship by birth, section 67(1) of the Adoption & Children 2002 Act provides that the child should be treated in law as if born to you. Since you were settled at the time he was born, that should be sufficient for him to have acquire British citizenship no later than the time of the adoption.

If this process forces the Home Office to think more about how the 2002 Act impacts the nationality law (and publish its findings) it will also help others in the same situation.

[Obie]

It follows the only persons who acquire British citizenship automatically by
adoption are those who do not already possess that citizenship before
adoption and are legally adopted in the United Kingdom by an adopter (either
adopter in the case of joint adoption) who is a British citizen at the date of the
adoption. However,
it is not in the interests of the adopted person to enquire
too closely into his or her natural parentage and further information should not
be requested without reference to a line manager since such enquiries require
tactful handling.

Another step i think you can pursue is the passport office failure to comply with their policy.

On this occasion, Section 1(5) cannot occur as the child is a British Citizen on a balance of probabilities.

The policy states that it is not in the interest of the adopted child to enquire too much into their natural parentage. Therefore some burden lies on the passport office.

The best interest of the child is a primary consideration, and on this occasion, it appears that they have not considered it.

I think the problem was you seeking to apply in your own right. That was the origin of the confusion.

You should have proceed on the basis that the child is already British, and that position is not changed by the adoption.

Section 1(5) are normally applicable in overseas adoption cases, and you should not have sought to rely on it. That is where the confusion originated.

[Richard W]

Although registration as a British citizen under section 3(1) of the Act is an option- I wouldn't recommend it. The reason is that if someone is registered under section 3(1) and has a British citizen natural parent [parent as defined by the Act] at the time of birth, that person becomes a British citizen by descent. Which may impact your future grandchildren if they were born outside the United Kingdom.

Would the registration be valid if the child were born in the UK and had a British citizen parent (as defined by the act) at birth?

Pedantically, I believe natural parents who are not parents under the act are irrelevant to Section 3(1). The obvious example is children born to a British father by a woman married to someone else at the time.