The best interests of the child lie at the heart of law and guidance concerning decisions relating to children in the UK who are subject to Immigration control.

Legislation obliges the Secretary of State to take account of the need to safeguard and promote the welfare of children when carrying out immigration, asylum and nationality functions. In practice this requires that all decisions demonstrate that children’s best interests have been considered as a primary, but not necessarily the only consideration.

In July 2022, the Home Office published a new guidance document on the Registration of children as British citizens (version 9; now available online here.)

Home Office guidance documents are not legally binding and updates to the guidance represent no change in the law. However, guidance documents do frame Home Office decisions and outline – for case deciders and applicants alike – how the law will be expected to be interpreted in particular cases. Proper application of the guidance documents helps to ensure consistency of decisions in cases which do not fall cleanly within the terms of legislation.

Entitlement versus discretion

Some children are entitled by law to be registered as British citizens and do not require the favourable discretion of a Home Office case decider to be exercised in their favour, so long as they provide evidence of their legal entitlement.

For others who lack an entitlement to be registered as a British citizen, they can submit an application for registration on a discretionary basis. Section 3(1) of the British Nationality Act 1981 provides that:

If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.

However, the legislation fails to provide for the circumstances in which such an application will succeed, and no statutory explanation is provided for when the Secretary of State might ‘see fit’ to register a child applicant as British. As such, we have to turn to the Home Office guidance.

Updates to discretionary guidance

The newly updated Home Office guidance confirms (in the section on the ‘best interests of the child and their Article 8 right to family / private life’) that all decisions have to consider the best interests of a child applicant as a primary consideration. However, the guidance notes that notwithstanding arguments relating to the child’s best interests, the applicant child in question must still demonstrate a ‘close connection with the UK, including residence, lawful presence and family ties.’

The onus will be on the applicant to provide evidence of their close connection to the UK, such as to allow their discretionary application to be granted.

The guidance now includes a new section which advises Home Office case deciders, that applications made for registration as a British citizen by a child who has lived in the UK for 10 years ‘must normally’ be granted and confirms that 10 years ‘constitutes a significant period of residence for a child to demonstrate a strong connection with the UK.’

However, there may be a concern that 10 years will begin to represent an unofficial ‘threshold’ which sees caseworkers refusing to accept sufficiently ‘strong connections to the UK’ if the child has been resident for fewer than 10 years. The fewer years a child has been resident in the UK, the more evidence of their strong connections to the country will be required.

Notwithstanding the guidance’s reference to a child’s ‘lawful residence’ in the UK prior to making an application for registration, the guidance does accept that unlawful residence is not an automatic bar to achieving British citizenship, at least in terms of a child’s application for registration. A child should not automatically be penalised for the decisions of their parents, where the child’s best interests point to a particular outcome for the child.

It is accepted that a child’s lack of status may be ‘beyond their control’ (that is: as a result of their parents’ or family’s actions) and that the child might still be able to demonstrate sufficiently close ties to the UK to warrant their application being granted.

This is most likely to be the case for older children who have formed independent ties to the UK (through for example schooling, social circles, or languages spoken) while younger children should be expected to have their status linked more closely to their parents. There is a risk, therefore, that in applying for registration as a British citizen for a younger child that the child’s parents might bring their own unlawful status to the attention of the authorities and have the child’s application may be refused on the basis that the Home Office intends to remove the parents, and thereby sever the young child’s connections to the UK.

As with all applications which rely on the discretion of the caseworker, the real difficulties arise in those cases which do not exactly fit the examples given in the guidance. In these circumstances, the applicant must trust that the caseworker will apply the principles of the guidance and not merely the specifically detailed concessions and examples.

Where the Home Office has set out circumstances in which applications should ordinarily be granted, this does not mean that all other circumstances fall for refusal. However, it does mean that further evidence and information must be provided in order to show the Home Office that granting the relevant application is consistent with the overall guidance.

While the updated Home Office guidance does not provide for all circumstances nor give any guarantees of success in discretionary applications for registration, all clarification on when the Secretary of State will ‘see fit’ to exercise her discretion is welcome in providing greater certainty and consistency to applications involving children.

Get in touch with our team for further advice tailored to your circumstances.

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