“I don’t want a British passport for myself but should I get one for my child?”

This is a common immigration-related enquiry, and onemy team and Ihave been asked about by EU nationals repeatedly since the June 2016 referendum vote. For many EU nationals, the Brexit vote dampened their desire to secure a British passport for themselves, however, they are keen to protect the longer-term interests of their children, and enquiries in the main are in finding out if a route to securing a UK passport is possible.

Key question: is a child automatically British at birth?

The starting point is to establish whether the child is British. Children born in the UK are automatically British at birth if either of their parents held permanent residence/indefinite leave to remain at the time of their birth. However, depending on when the child was born, there are different rules that apply with regards to how the parent’s permanent residence status is evidenced to HM Passport office.

Children born in the UK before 30 April 2006

Children born in the UK between 2 October 2000 and 28 April 2006 can only obtain a British passport if they can provide documentary evidence one of their parents held indefinite leave to remain/enter, or held permanent residence at the time of their birth. Evidence has to be in the form of a letter from UK Visas and Immigration or its predecessors, or a passport with an endorsed Indefinite Leave to Remain (ILR), Indefinite Leave to Enter (ILE) or No Time Limit (NTL) stamp; or a document certifying permanent residence or a Permanent Residence Card.

As the vast majority of EU nationals never applied for such documentation, many EU children born during this period will simply not be able to obtain a British passport as their parents are unable to provide this evidence. They will instead have to apply on behalf of their children to register them as British citizens. (See further below).

Children born in the UK, on or after 30 April 2006

Children born on or after 30 April 2006 can obtain a British passport if they can provide evidence their parent has been resident in the UK exercising Treaty Rights (i.e. were in the UK as a worker, were a self-employed person or a self-sufficient person, or student who holds private medical insurance) for a minimum period of five years prior to their birth. The evidence required will vary depending on what the parent’s status was. So, for example, if the parent was here as a worker then the evidence required is a letter from an employer and documents showing evidence of employment between the relevant dates, e.g. P60’s/payslips.

For children born to parents of the “A8” nations – Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia – that joined the EU in 2004, those children are additionally required to provide a Worker Registration Scheme (WRS) Certificate and Card as evidence a parent(s) was registered on the scheme.

In September 2018, in the case of Prefeta v UK C-618/16, the Court of Justice of the European Union upheld the Home Office position that time spent working in breach of the registration scheme will not count towards permanent residence. Therefore, evidence of a parent’s registration under the scheme is necessary to establish the parent held permanent residence at the time of their child’s birth.

This requirement, and its consequences, attracted a lot of press attention following the refusal of hundreds of A8 children’s renewal passport applications. Unfortunately, previous Home Office Guidance failed to stipulate that evidence of registration was required and passports were issued in the absence of such documentation. This error came to light only on renewal, and the Home Office’s response to the great distress of the families involved was to advise that unless they could now produce the registration document, their children’s passports would be revoked. For many families providing the documentation was impossible; some will simply not have registered while others will have lost the documentation.

Following a widespread outcry, the Home Office has now set up a special unit within the HM passport Office to support families where a child had previously been issued a passport in error as a result of them not being asked for full, supporting documentation in a previous application. As the child was never British, the only remedy for the Home Office has been to set up a special arrangement, allowing children in this group, estimated to affect more than 1,000 children, to apply to register for British citizenship, with the Home Office covering the £1,012 application fee.

For children whose parents can establish they held permanent residence at the time of the child’s birth, all the EU parent is required to do is apply for the child’s first British passport, in the same way a British parent would apply for a first passport for their British child. The cost is £49 (online) and £58.50 (paper form available from the Post Office). The passport will last five years and normal processing time is three weeks.

EU Children born in the UK who are not automatically born British

EU children born in the UK, whose parents have not completed five years continuous residence under the terms of EU law prior to their birth will not be British at birth. This group of EU children will, however, have an automatic entitlement to register as British citizens in terms of section 1(3) of the British Nationality Act 1981, either once one of their parents acquires permanent residence or they are granted indefinite leave to remain.

If the parent has obtained a document certifying their permanent residence (Blue Card) then this should be submitted with the application. Alternatively, evidence should be provided to demonstrate the parent has exercised their Treaty rights in the UK for a continuous period of five years. This application to register currently costs £973 and is applied for usingform MN1.

EU children born outside the UK

Often, we come across families where the eldest child, or children, of the family was/were born outside the UK, and younger siblings have been born in the UK. The younger children in these situations may either be British at birth, or may have registered through automatic entitlement as discussed above. Naturally, parents are keen to find out how they can bring their eldest children’s immigration status in line with their younger siblings.

In this not uncommon scenario, registration of the child born overseas is entirely at the discretion of the Nationality Team caseworker acting on behalf of the Home Secretary in considering their case who exercises their powers in terms of section 3(1) of the British Nationality Act 1981. In exercising their discretion, the caseworker must consider the guidance entitled “Registration as British citizen: children.”

What about children born to Irish nationals?

Children born to Irish nationals ordinarily resident in the UK, automatically acquire British nationality at birth.

Reasons to obtain a British passport/apply to register?

In an uncertain world, one of the main benefits of British Citizenship is the ability to return to the UK to live, study or work at any time in the future.

Another concern for parents is access to higher education funding on the same basis as British students. Whilst EU children have access to funding now under ‘home fee’ status, it is less certain what the future funding position will be, and obtaining British citizenship now is a worthwhile safeguard.