At last! BNA 1981 no longer requires legitimacy

After an incredibly long gestation period, the amendment to the British Nationality Act 1981, allowing British man to be regarded as the father of a child born out of wedlock, should be finally coming into force on 1 July - the Orders were made on 5 June. The new sections 50(9) and 50(9A) read as follows:

50(9) For the purposes of this Act a child's mother is the woman who gives birth to the child.
(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 (c. 37) (father), that person, or
(c) where neither paragraph (a) nor paragraph (b) applies, any person who satisfies prescribed requirements as to proof of paternity.

The Regulations say:

1. These Regulations may be cited as the British Nationality (Proof of Paternity) Regulations
2006 and shall come into force on 1st July 2006.
2. The following requirements are prescribed as to proof of paternity for the purposes of section
50(9A)(c) of the British Nationality Act 1981—
(a) the person must be named as the father of the child in a birth certificate issued within one
year of the date of the child’s birth; or
(b) the person must satisfy the Secretary of State that he is the father of the child.
3. The Secretary of State may determine whether a person is the father of a child for the purpose
of regulation 2(b), and for this purpose the Secretary of State may have regard to any evidence
which he considers to be relevant, including, but not limited to—
(a) DNA test reports; and
(b) court orders.

AIUI, the new provisions affect only children born on or after 1 July. People born out of wedlock before then will continue to be able to benefit from the existing legitimation provisions in section 47 of the Act, if their parents marry after their birth.

And I presume the present IND policy of registering illegitimate children of BC fathers where no marriage has taken place, will continue for the next 18 years or so, until there are no more illegitimate minor children left to benefit from it.

Can anyone spot the loophole in the new rules?

ppron747 wrote: Can anyone spot the loophole in the new rules?

Is it that a British father still cannot pass on his nationality status if the mother of the child happens to be married to someone else?

Give that man 95% of a cigar!

By making the absolute statement that the father of a child is the husband of the mother, this means that any child born to a woman who is still married to someone else (even if they separated years ago) can always only be that man's child, for nationality purposes.

I've deducted 5% of the cigar because this wasn't actually the case before - a child child born in wedlock was presumed to be the legitimate child of the mother's husband, but it was always open to them to rebut this presumption, either by producing evidence of non-access or even DNA tests. This then meant that when they got divorced, and the mother married the real (BC) father, the child would be legitimated by the marriage and become a BC by descent.

Now that legitimation will no longer be possible for children born after 1.7.06, I think this leaves the child in the state of permanently having the wrong dad - and if he's not British, the wrong nationality.... (Unless IND are proposing to register the child).

ppron747 wrote: Now that legitimation will no longer be possible for children born after 1.7.06, I think this leaves the child in the state of permanently having the wrong dad - and if he's not British, the wrong nationality.... (Unless IND are proposing to register the child).

Seems like an obvious case for a section 3(1) registration, however it's an open question as to how many immigration advisors - or MPs, for that matter - would understand the issue.

Have IND even thought of cases like this?

It has taken so long to produce the darned Regulations that you'd thought that all the nooks and crannies had been properly explored, but it doesn't seem to be the case! I agree that 3(1) registration would be the answer, provided the child is still a minor when the issue gets addressed - the fact is that a lot of people don't apply for their first British passport until they're adult, and if someone in this situation left it until then, too late, too late, would be the cry....

It actually works adversely in the other direction as well - in the case above you've got the child of a British father who the law regards as being the child of a foreign father with whom he has no connection at all. How about the scenario of the non-Brit woman who marries a British man. The marriage breaks down and she goes home. They don't bother with a divorce immediately, but she meets someone else and has a child by him. Because she's still married to the British man, he is the father, according the the BNA 1981, so the child is a BC despite having no connection whatsoever with his mother's soon-to-be-ex-husband.

Hello everyone ,

I am living in Cape Town South Africa, I am 38 and my British Father is dead. My mother is also dead. They were not married at the time of my birth, and my mother died before they were able to get married.

My question is: can i still benefit from my father being a british national, can i become a British citizen?

Thnkyou so much for your time and consideration in advance.

Yours sincerely,

Maurice Nixon.

ppron747 wrote:After an incredibly long gestation period, the amendment to the British Nationality Act 1981, allowing British man to be regarded as the father of a child born out of wedlock, should be finally coming into force on 1 July - the Orders were made on 5 June. The new sections 50(9) and 50(9A) read as follows:

50(9) For the purposes of this Act a child's mother is the woman who gives birth to the child.
(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 (c. 37) (father), that person, or
(c) where neither paragraph (a) nor paragraph (b) applies, any person who satisfies prescribed requirements as to proof of paternity.

The Regulations say:

1. These Regulations may be cited as the British Nationality (Proof of Paternity) Regulations
2006 and shall come into force on 1st July 2006.
2. The following requirements are prescribed as to proof of paternity for the purposes of section
50(9A)(c) of the British Nationality Act 1981�
(a) the person must be named as the father of the child in a birth certificate issued within one
year of the date of the child�s birth; or
(b) the person must satisfy the Secretary of State that he is the father of the child.
3. The Secretary of State may determine whether a person is the father of a child for the purpose
of regulation 2(b), and for this purpose the Secretary of State may have regard to any evidence
which he considers to be relevant, including, but not limited to�
(a) DNA test reports; and
(b) court orders.

AIUI, the new provisions affect only children born on or after 1 July. People born out of wedlock before then will continue to be able to benefit from the existing legitimation provisions in section 47 of the Act, if their parents marry after their birth.

And I presume the present IND policy of registering illegitimate children of BC fathers where no marriage has taken place, will continue for the next 18 years or so, until there are no more illegitimate minor children left to benefit from it.

Can anyone spot the loophole in the new rules?

Does it mean if a weman is not married and she is oversease national of 3rd country gives birth to her child from a british person as a result of one night stand then the baby gets british nationality? bit confused?

Jesus-INN wrote:Hello everyone ,

I am living in Cape Town South Africa, I am 38 and my British Father is dead. My mother is also dead. They were not married at the time of my birth, and my mother died before they were able to get married.

My question is: can i still benefit from my father being a british national, can i become a British citizen?

Unfortunately, no you can't, because you are now aged over 18.

keshgrover wrote: Does it mean if a weman is not married and she is oversease national of 3rd country gives birth to her child from a british person as a result of one night stand then the baby gets british nationality? bit confused?

Yes in principle if the British father is shown as the "father" on the child's birth documentation.

However it would not give the mother a basis to demand residence in the United Kingdom.

I am closing this thread now. Further questions should be raised on new threads.