British by descent and my baby was born in Spain

Hi All,

Thanks for the time to read this post and apologies if this exact question has been asked before.

I having been living in the UK for 13 years and myself and my italian partner plan to live in the UK indefinitely. I had hoped my Spainnish born baby would be british however given what I have read now this is a little difficult. It made a lot of sense for our baby to be born in Spain as my partner had health cover and a good support network at the time. To be honest all this is a small issue given that my baby was born healthy without complication.

Anyhow looking to the future if applying under C2 section 3(5), do both parents have to be british or is it suitable for just one? The documents I have read, read both ways and it is not clear some read "parents" and others read "parent". Can an application be lodged sooner than 3 years? Are there any other better avenues - as our plan is to remain in the UK indefinitely I do not want my child to be british by descent and have the same problems I am having now. Are there any other better avenues, unfortunately I thought my long term residence would extend certain rights as it does in other countries but it isn't the case from what I have read.

Also the baby is having problems obtaining Italian documentation - they do no like double barrelled names as happens in Spain and will want to refuse to process the application. The Spainnish do not want to reissue the birth certificate even though we have repeatively asked. What would be the complications if the baby just arrived in UK as has been suggested by some of my friends. Probably not recommended however, it is very very hard being without your baby, it's something that is really affecting my life and I am not sure what I will do if this takes 6 months to resolve. I would not mind getting in contact with a recommended immigration lawyer who would best represent my and my families interests.

Thank you,

Andrew

Only one parent needs to be British although both parents need to sign the consent form.

You have two options:

- Apply under section 3(2) - As you have lived in the UK for more than 3 years. In this case, your child would also be "by decent".
- Apply under section 3(5) - but for that you will need to apply after living in the UK for 3 years.

I would try and get an Italian passport and apply under 3(5) after 3 years in the UK.

For more details about 3(2) and 3(5) see here.

Also when was your child born? After one year of residence in Spain, a child born in Spain is entitled for Spanish citizenship.

Hi Jambo -

She was born 2 months ago - ironically her italian friend is going down that route as her intention is to stay in Spain. It involves declaring the baby as "stateless" I believe and then the baby has a birth right to citizenship rather than by descent I guess.

Will keep trying to pursue the italian option. I feel like I am missing the best days of her life being apart - might have to quit work and immigrate to Spain until this is sorted out.

Thank you for the advice -

I was born in Australia and my father is British, I am British by descent. I have been living in the UK for 13 years. My daughter was born in Spain and is 2 months old her mum is italian.

Thank you for answering my main question whether both parents need to be british for 3(5). The notes refer to "parents" but in other places it is listed as "parent". One reason I am in the situation I am is that the government website lists that an overseas child born to a british citizen can apply for a UK passport and the parent for their documentation only need submit a british passport (nothing else, everything else is listed as OR). It is only when you get to notes of the actual document that it states that british parent must submit either a UK birth certificate or immigration/naturalisation certificate. Section 3(5) sounds best for me - I was worried about the terms "parents" and "parent" being used in various places within the documentation and also legislation listed. Maybe the real meaning of the law is the word "parent's" ... something might have been lost in transcribing somewhere.

Thank you for calming my nerves!

So aren't you also Australian? Can't you register you child as Australian by decent?

I am and have investigated that option. Unfortunately I would need to renounce british citizenship before doing so - as I live in the UK and travel to Europe (Spain for example to see my baby) that doesn't seem the best thing to do.

andrewkp wrote:I was worried about the terms "parents" and "parent" being used in various places within the documentation and also legislation listed. Maybe the real meaning of the law is the word "parent's" ... something might have been lost in transcribing somewhere.

The Act refers to father or mother.

thank you - that is more clear than the notes to the mn1. again just wanted to make 100% given the information provided on the direct.gov had mislead me before.

thank you both for your help


latest mn1 guidance notes 2010

Children born abroad to British parents - Section 3 (2) or section 3 (5) application.
This category applies to children who
• Were born outside the United Kingdom. Or
• If born after 21 May 2002, were born outside any of the British overseas territories
(listed below) and
• In either case, were born to parents who are British citizens by descent (see
“Automatic acquisition of British citizenshipâ€

andrewkp wrote:I am and have investigated that option. Unfortunately I would need to renounce british citizenship before doing so - as I live in the UK and travel to Europe (Spain for example to see my baby) that doesn't seem the best thing to do.

Why would you need to renounce British citizenship to have your baby declared an Australian citizen (by descent)?

up until 2004 australia did not accept dual nationality. in my case and my babies case it is best i renounce before any further application is made so i can truthfully say i hold no other nationality and do not need to list further details of when it was obtained. i know it is cheeky but i can reapply later and it will most likely be processed without a problem although it may take sometime to do so. to be honest that is one reason there is a renouncing process from what i have read.

andrewkp wrote:up until 2004 australia did not accept dual nationality. in my case and my babies case it is best i renounce before any further application is made so i can truthfully say i hold no other nationality and do not need to list further details of when it was obtained.

What on earth are you talking about?

Prior to 4 April 2002, adult Australian citizens who voluntarily acquired another citizenship (generally) automatically lost Australian citizenship, and some children lost Australian citizenship when a parent did.

HOWEVER, dual Australian/other citizenship was quite legal for those who obtained it another way, such as at birth (born in another country, or with a parent born in another country).

So there is absolutely no problem with you holding, or having held, British citizenship alongside Australian.

i know it is cheeky but i can reapply later and it will most likely be processed without a problem although it may take sometime to do so. to be honest that is one reason there is a renouncing process from what i have read.

If you renounce British citizenship for a "frivolous" reason, ie not to obtain or retain another nationality, you do not have an entitlement to get it back.


As regards British citizenship for your child. Stop making things more complicated than they need to be. If you intend to bring child to the UK there are at least three options:

- British citizenship under section 3(2) + British passport
- Italian passport plus British citizeship under section 3(5) after child spends 3 years in the UK
- Australian passport + settlement visa + British citizenship under section 3(5).

Your child is probably Italian already but you may need to find an Italian immigration lawyer to insist they go ahead and issue an Italian passport and ID card.

andrewkp wrote:up until 2004 australia did not accept dual nationality. in my case and my babies case it is best i renounce before any further application is made so i can truthfully say i hold no other nationality and do not need to list further details of when it was obtained. i know it is cheeky but i can reapply later and it will most likely be processed without a problem although it may take sometime to do so. to be honest that is one reason there is a renouncing process from what i have read.

But my understanding is that you were born in Australia to a UK-born father, and that you gained both your Australian citizenship and your British citizenship at birth. As such, there is not now and never has been any problem from the perspective of either country in your holding both citizenships.

[ETA: I see that JAJ has addressed this point (and, if I may say so, your misconception) above.]

It seems to me that, whatever decisions are reached about the mechanism by which your baby will reside in the UK, you ought to register the child as an Australian citizen, since this will (potentially) be useful later in life anyway.