REVOKED CHILD'S BRITISH PASSPORT

[waiting2017]

hello everyone
just wondering if anyone can advice as I'm stuck.
Here is my history:
I am non-EEA national and married a EEA national in 2014.We separated and I met someone else ( British) and we have a child born in 2015.
The child was born in the UK and has a British Birth Certificate and his father is named on the birth certificate which was issued within 12 months of his birth.His father then applied for a British passport for the child and it was issued September 2015.
Few months later we received a letter from the passport office informing us that they are revoking the child's passport on the grounds that the British Nationality Act 1981 identifies the father as the mothers husband at the time of the child's birth.
We then did a DNA test to prove the child's rights to citizenship through his biological father.The results were forwarded to the passport office and they still deny citizenship.
I made an application FLR(FP) in March 2016 and its been a year I'm still waiting.I am also processing the divorce from my enstranged EEA husband who is still in the Uk and exercising his treaty rights.

What should I do?should I apply for certificate of entitlement for the child?should I use MN1 form?
Does my child have a right to reside or right to British citizenship?
*he has a british birth certificate
*his father is named on the birth certificate
*The childs father is a british citizen by birth and served in the British army for many years now retired
*we have DNA proof of paternity

Please Please help anyone!!

[Obie]

You need to challenge the passport office as they are wrong. They are doing something clearly unlawful.

They need to be threatened with legal action.

(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

[F14(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.

Why are you applying for FLR(FP), have you not been able to retain your right of residence?

I hope it is not the UK passing information to passport office.

The DNA test ought to have sufficed.

[secret.simon]

You need to challenge the passport office as they are wrong. They are doing something clearly unlawful.

They need to be threatened with legal action.

(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

[F14(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.

Why are you applying for FLR(FP), have you not been able to retain your right of residence?

I hope it is not the UK passing information to passport office.

The DNA test ought to have sufficed.

But Obie, doesn't subsection (c) apply only when subsection (a) doesn't, i.e. only if the mother is unmarried at the time of birth?

That is to say, doesn't a mother's state of marriage preclude subsection (c)?

And why should the UKV&I not pass information to the HMPO? Given that they are housed in the same department, would it not make sense that they share data? I am guessing that is how the JCAP scheme also works (i.e. that they do share data)?

[waiting2017]

Thank you all for the reply.

I did not apply for EEA2 as we were already separated at that point and I was not aware that was even an option.

The passport office have informed me that they have received information from the home office to say that since I was married when the child was born,they only recognise "father" as the person I am married to and the child's biological father cannot pass citizenship to his son despite the DNA result.

[Obie]

Well Subsection (a), (b) and (ba) are based on presumption without more, but those presumption can be rebutted by subsection c. That is the only sensible construction to accord to the statute, otherwise we will end up in a state of absurdity, where a child is given to a father, who is not the father, this could have an effect on child support.

Imagine a woman is abandon by a violent man who she was married to, who refuses to give a divorce, it will be absurd to suggest the father in the new relations cannot be recognised.

I am 100% certain that such construction cannot apply.

There is a presumption that the husband of a woman is the father of their child, but that presumption can always be rebutted by scientific proof to the contrary, and that is the purpose of sub section c.

[vinny]

The logical meaning of 50(9A) appears to be quite clear. 50(9A)(c) is only applicable where none of paragraphs (a) to (ba) applies. So, for the purposes of the Act, if 50(9A)(a) applies, then the child's father is deemed to be the child's mother's husband at the time of child's birth.

[Obie]

Well 50(9A) (a) does not apply, because the estranged husband is not the father of the child. I read 50(9a)(a) as presumptive. It proceeds on the basis that the child father will be the man married to the mother. However if Section 50(9A)(a) is not applicable .


I think that is the sensible reading in the light of Johnson.

It will amount to a father who is not the biological father being given a preference over a biological father, because of a marital status.

It will be a complete absurdity, a breach of a child's right under Article 8 and 14, if a child is told that there biological father is not their father, but rather a person who has ran away and refused to sign divorce papers.

That will amount to forced paternity, and i am not sure, the statute can be read that way, especially post Johnson.

[vinny]

I think Johnson relates to unmarried parents? It's more complicated when the mother was married to someone who was not the child's biological father. Child may (9.9.5) register under Section 3(1).

[Obie]

That is essentially the position her. A father being denied paternity of his child, because he was not married to the mother.

The essential element of Johnson, is that a married person being treated differently without justification.

On this occasion we have a father of a child being denied paternity or having his paternity denied , even though it has been proven beyond reasonable doubt, because he is not married to the mother at time of the child''s birth.

That is just absurd.

There us no justification for a child in this case to be denied citizenship . Johnson is fully engaged.

The buttom line is the biological father is being treated differently because he was not married to the mother.

In Johnson, illegitimate children were not consider as a child of an unmarried partner.

There are many similarities .

I respectfully observed the policy, but in light of Johnson I don't think it is acceptable. The scope of Johnson is very wide.

This is a situation that affect only men. If a man was married to another woman, and had a child outside his marriage, it could not be said that the his wife has maternity of the child.

So there is a discrimination which is unjustified and an accident that occurs at birth.

[vinny]

I agree with you. But until 50(9A) is rewritten to give (c) more or same precedence as (a), I don't see the Passport Office backing down.

[Obie]

We are still awaiting for a remedial order in regards to 41A's application to registration applicant under Section 4F, 4G, 4H and 4I. Perhaps the government should consider issuing one in the case of 50(9A)(a).

I guess the court will be interesting in a case like OP's intrigue even, especially if a situation arose, where this child could face deportation because the mother cannot, for example afford £936.

The most sensible thing the Secretary of State should have done, is provide a pathway for registration, where this category of people will not have to pay anything, rather than the outrageous £936 for MN1.

The Home Office should watch its back in regards to that provision.

If i or any family of mine was facing this situation, i would consider sending a Pre-Action protocol to the Home Office.

[waiting2017]

Hello All

Just an update on the case above:

We went ahead and used MN1 form to apply for citizenship for my son and paid the requested £973 on the 10 March 2017.We received a reply on the 12 April 2017 stating:

"If you wish to obtain a nationality status certificate giving our opinion of your child's status,you may wish to submit an NS application.You may wish to enclose a cover letter ,and any letters from her majesty's passport office with the aforementioned application.If it proves that your child has an automatic claim we will issue a status letter ,which may be acceptable to her majesty's passport office at their discretion".

someone please please advice.

Thank you.

[vinny]

That's an odd response. If they thought that the child is automatically British, then they should have responded differently.

If the minor has an automatic claim to British citizenship, we should write to explain that the application is not necessary (using the procedure in Chapter 2, 3, 4 or 5 as appropriate) and refund in full any fee submitted with the application (see Chapter 6).

[Obie]

I think it is the appropriate response.

Home Office must be aware that the position they adopted in refusing paternity right to a father in circumstance where the mothe was married to another person, is untenable in the light of Johnson.

The whole rational behind Johnson is that a person should not be disadvantaged in regards to citizenship because their father was not married to their mother at the time of their birth.


So the guidance and that particular provision that imposed the restriction seem to be ultra vires.

[vinny]

Shouldn't they write to explain that the application was unnecessary and refunded the fees as well? I thought it was odd that they didn't commit to confirm that the MN1 application was unnecessary and refunded the fees.

However, perhaps then they wouldn't get the NS fees?

[Obie]

Shouldn't they write to explain that the application was unnecessary and refunded the fees as well? I thought it was odd that they didn't commit to confirm that the MN1 application was unnecessary.

That is the rational approach. However, home office don't do rational.

[vinny]

If they confirm via the NS application that child is automatically British, then you should also get a refund of the MN1 fees.

If they don't confirm that the child is British, then would you get a refund of the NS application?

[waiting2017]

Well I guess I have no option but to pay the £234 for NS application and see what happens.

The Home Office is unpredictable and totally inhumane even when its comes to 19 month old babies.

I am really at a loss of options to resolve this issue and do not now the avenues available for me to escalate the issue. My MP has not been able to assist.

Thank you all for your time.

[vinny]

Do make a full disclosure of your circumstances, else they may later accuse you of deception and any confirmation of nationality may be worthless.

[vinny]

This is interesting:

4E

The general conditions

For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—
(a) P was born before 1 July 2006;
(b) at the time of P's birth, P's mother—

• (i) was not married, or
• (ii) was married to a person other than P's natural father;

(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and
(d) P has never been a British citizen.]

[Obie]

Well to my understanding, it does not seem the that the provision in

But i think you raise an interesting point. If such a provision is made for Pre-July 2006 children, it seems odd that it remains in place for Post July 2006 children.

[JAJ]

As I understand it, since 1.7.2006 if the mother is married then the father [for nationality purposes] is the man to whom she is married. In a situation such as this, if the biological father of the child is someone else, then the child may be considered for registration as a British citizen if the child would have been British had the biological father been married to the mother. See section 9.9.5 of the Nationality Instructions.
https://www.gov.uk/government/uploads/s ... 150402.pdf

Accordingly- the Home Office should normally have granted the MN1 application. Unless there is clear evidence that the EEA citizen married to the mother had acquired Permanent Residence before the child was born in 2015.

Note that if a British passport is granted to the child it can be revoked later if found to have been issued in error. [A British nationality Certificate of Registration cannot so easily be annulled].

[Obie]

For my sanity sake at least, I am glad that the court has finally appreciated that Section 50(9A) was in breach of Article 8 of the ECHR.

I believe that OP can now rely on this case, without the ridiculous situation of having to pay for MN1 to register her child.

I did say this legislation will not stand the test of time.

http://www.bailii.org/ew/cases/EWHC/Adm ... /1834.html

[Obie]

I agree with you. But until 50(9A) is rewritten to give (c) more or same precedence as (a), I don't see the Passport Office backing down.

It seems like we have the victory now, a remedial order will have to be made and passport office will have to back down.

You were clearly right on the statutory construction. The court accepted your construction which was similar to the Home Office, but rejected mine, which was consistent with the claimant.

However, it was accepted that the statute was inconsistent with HRA.

[vinny]

How can the Home Office tear up the British passport of a six-year-old boy born in Leeds?