Definition of a Father under the British Nationality Act

[ArnieVXR]

The British Nationality Act carries a definition of father in Chapter 61, Part 1, Section 50 - Intepretation, sub-section 9A:

For the purposes of this Act a child’s father is—

(a)the husband, at the time of the child’s birth, of the woman who gives birth to the child, or

(b)where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or .

(ba)where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or .

(c)where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to proof of paternity.

My 2-year old niece has just had her 1st UK passport application declined. The circumstances are:

• She was born in Hungary
  Her mother is a Mexican national
  Her mother was married to a Hungarian national when she was born
  Her biological father is a British Citizen by birth
  The birth certificate names the biological father
  Hungarian court papers name the biological father
  The mother and biological father declare who the father is

The HM Passport Office state that the father is the [now] ex-Husband and therefore the daughter is not a British Citizen.

I have read on a much earlier thread (2006/8) that this was the case and that children in these circumstances cannot ever be considered to have the "correct" father, due to the sloppy wording of the act.

Is this still the case? Can she acquire citizenship through an application to the UK Border Control Agency? If not, what are her options? At the moment, she is trapped in Hungary with no passport (Hungary don't recognise her as a national either). Are human rights infringed?

Ideas?

Thanks
Arnie

[vinny]

Unfortunately, if she was married at the time of child's birth, then 50(9A)(a) applies, unless 50(9A)(b) or 50(9A)(ba) applies.

[JAJ]

She would most likely be eligible for registration as a British citizen under section 3(1) of the British Nationality Act. As far as I recall, there's something in the Home Office Nationality Instructions that deals with this specific situation.

Is she a Mexican citizen?

[vinny]

JAJ is correct (9.9.5).