Child born in UK to Indian Parents direct citizenship

[regularuser]

Hi Everyone,

Yesterday one of my friend shared link on Facebook from one of the Solicitor Firm.

The firm claiming that if Child born in UK to Indian parents.
-never had a passport
-never been to India
-born after 3rd December 2004
-child does not have any other nationality
-child not registered with Indian High Commission
Parents may apply for British Citizenship.


Is that true ? or the solicitor firm is just try to make money ?

Please share your inputs.

[zimba]

You can register such child as BC if at least one of the parents has ILR

[regularuser]

Thanks zimba for your input.

But the firm of solicitors promoting that if you are overstayer or living illegally still get citizenship.

[poper]

Try this

https://www.gov.uk/check-british-citizen

[JAJ]

In this particular case, it sounds like the child is U.K. born of Indian citizen parents. Assuming the child does not get citizenship of any third country (example- from grandparents), it does sound like the child is stateless if no application for registration as an Indian citizen has been made.

However- this does not create an entitlement for the child to be registered as a British citizen. The primary concession to U.K. born stateless persons is the allowance to register as a British citizen at age 5 instead of the normal requirement of age 10. (unless one parent has become a British citizen/settled in the meantime).

In addition- the acquisition of British citizenship by the child does not in itself give an entitlement to British citizenship to the parents, although if the child is solely British and cannot live anywhere else, then there may be some impact on parent's application for discretionary leave to remain.

[secret.simon]

Fascinating aspect of the law that I had not considered.

Be aware that intentionally causing the child to be stateless by not registering the child with the authorities of the parents' citizenship may not make the child stateless.

Also, as JAJ has already pointed out, a stateless child could be registered as a British citizen only after five years of residence in the UK (Section 3, Schedule 2 of the British Nationality Act 1981). And the citizenship of the child will not confer any citizenship rights on the parents themselves. It is specific to the child.

[JAJ]

Be aware that intentionally causing the child to be stateless by not registering the child with the authorities of the parents' citizenship may not make the child stateless.

As I read it- the Tribunal did not dispute whether or not the child is stateless. What was under review- and relevant for the Immigration Rules- is whether the child was "admissible" to another country. A stateless child may still have an entitlement to either citizenship of another country, or admission to another country (although this may be impractical without access to a travel document).

For British Nationality Act applications based on statelessness- Schedule 2 and some section 3(2) cases- it is irrelevant whether or not the person has entitlement to a non-British nationality or resident status in another country.

[secret.simon]

For British Nationality Act applications based on statelessness- Schedule 2 and some section 3(2) cases- it is irrelevant whether or not the person has entitlement to a non-British nationality or resident status in another country.

indeed, I just located the judgment on that in another thread.

[Obie]

Be aware that intentionally causing the child to be stateless by not registering the child with the authorities of the parents' citizenship may not make the child stateless.

As I read it- the Tribunal did not dispute whether or not the child is stateless. What was under review- and relevant for the Immigration Rules- is whether the child was "admissible" to another country. A stateless child may still have an entitlement to either citizenship of another country, or admission to another country (although this may be impractical without access to a travel document).

For British Nationality Act applications based on statelessness- Schedule 2 and some section 3(2) cases- it is irrelevant whether or not the person has entitlement to a non-British nationality or resident status in another country.

I am not sure i accept that.

Every signatory of the UN Convention on the prevention of Statelessness 1961, has an obligation to prevent stateless.

It is imperative that there is evidence, as a matter of law, that a person will be stateless for the provision in Schedule 2 to be engaged.

If the issue of Statelessness is immaterial, then Section 1(4) will be otiose. Why will a person wait for 10 year to register a child, if they can do so in 5 years under Schedule 2(3).

[JAJ]

I am not sure i accept that.

Every signatory of the UN Convention on the prevention of Statelessness 1961, has an obligation to prevent stateless.

It is imperative that there is evidence, as a matter of law, that a person will be stateless for the provision in Schedule 2 to be engaged.

Unclear what point is being made.

For certain purposes of the Immigration Rules, it appears to be relevant whether a stateless person is entitled to admission to another country or acquisition of another country's citizenship.

For British Nationality Act purposes (statelessness provisions)- it is only relevant whether or not someone is stateless. Statelesss persons can also be registered under the standard provisions to acquire British citizenship- sections 1(3), 1(4), etc.

There has not been any suggestion that the United Kingdom is in breach of its international obligations.

[Obie]

You mentioned that for the provision in Schedule 2 to be engaged, it matters not, whether a child could qualify for citizenship for another country.

I am of the view that for that provision to be engaged, a child must not have right to nationality of another country.

[secret.simon]

You mentioned that for the provision in Schedule 2 to be engaged, it matters not, whether a child could qualify for citizenship for another country.

I am of the view that for that provision to be engaged, a child must not have right to nationality of another country.

For once, I agree with you.

But a High Court judgment states to the contrary.

36. For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes. A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended. If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C's birth had on the date of the decision under challenge not been registered, she is entitled to British Citizenship

Therefore if a UK-born child is deliberately kept stateless for the first five years of their life, that gives them an entitlement to register as a British citizen under Section 3, Schedule 2 of the BNA 1981.

[Obie]

Interesting Authority. It was mentioned to me, but i never had time to look at it. Will see how far it goes.
Well in light of the court's decision and indian law, I have to retract my disagreement with JAJ.

[JAJ]

It is surprising that the Home Office policy document was (apparently) not raised in evidence- Annex H to Chapter 14 of the Nationality Instructions.
https://www.gov.uk/government/uploads/s ... annexh.pdf

The other issue that was discussed was whether the Secretary of State had the right to insist on a confirmation that the child was not an Indian citizen before proceeding to register as a British citizen. The court (I believe correctly) concluded that the Act does not give the Secretary of State power to request a particular document as evidence, especially a document reliant on the co-operation of another country.

[Obie]

I am not sure the guidance would have affected the position of the case. It appears to confirm the position as i see it.

I accept the court's position that the Home Office cannot impose conditions or documentary requirements that frustrate the provision of the rules.

I believe the UK government will seek to lobby the Indian government to change the law, like they did the Irish Authorities.

[secret.simon]

I believe the UK government will seek to lobby the Indian government to change the law, like they did the Irish Authorities.

I think it will be unlikely.

Firstly, the suggestion that the Indian government is seen to be listening to the ex-colonial master would be seen in a dim political light in India. Even more so given that the current Indian government is of a significantly nationalist leaning.

Secondly, such a requirement is not unique to India. To my knowledge, Australia and New Zealand also do not allow automatic acquisition of citizenship by descent abroad, but makes it conditional on registration with consular officials abroad.

Thirdly, it may be (not sure how it would play out in the current political environment) easier to rush a bill through the UK Parliament clarifying the law than to invest in international diplomatic conversations that may go nowhere. If the law were to be merely clarificatory (something on the lines of adding a paragraph to the interpretations section, that statelessness means that all avenues to gaining a citizenship have been exhausted before applying for British citizenship), I think it may go through.

Alternatively of course, the government may appeal the judgment to either the Court of Appeal or the Supreme Court, as this judgment may have the perverse effect of increasing intentional statelessness.

[JAJ]

Secondly, such a requirement is not unique to India. To my knowledge, Australia and New Zealand also do not allow automatic acquisition of citizenship by descent abroad, but makes it conditional on registration with consular officials abroad.

Other countries too- including (as far as I am aware), South Africa, Singapore and Brazil.

Thirdly, it may be (not sure how it would play out in the current political environment) easier to rush a bill through the UK Parliament clarifying the law than to invest in international diplomatic conversations that may go nowhere. If the law were to be merely clarificatory (something on the lines of adding a paragraph to the interpretations section, that statelessness means that all avenues to gaining a citizenship have been exhausted before applying for British citizenship), I think it may go through.

If they were to go to the trouble of putting an amendment to the British Nationality Act in place- possibly as part of the next Immigration Bill- it would be to change the law, rather than to "clarify" it. In other words, add wording to Schedule 2 to add something like a requirement that the applicant not be entitled to acquire any other citizenship or nationality. Australia already has a similar provision in section 21(8) of the Australian Citizenship Act 2007:
http://www.austlii.edu.au/au/legis/cth/ ... ca2007254/

Alternatively of course, the government may appeal the judgment to either the Court of Appeal or the Supreme Court, as this judgment may have the perverse effect of increasing intentional statelessness.

The wording of the British Nationality Act is very clear- it refers to statelessness in itself and does not impose additional conditions or criteria. Parliament is free to add these should it so choose. If it chooses not to do so, it's unclear why anyone should expect the courts to go beyond the requirements of the statute.

Home Office policy from the Nationality Instructions:
https://www.gov.uk/government/uploads/s ... ssness.pdf

[Tea_Rocket]

Thirdly, it may be (not sure how it would play out in the current political environment) easier to rush a bill through the UK Parliament clarifying the law than to invest in international diplomatic conversations that may go nowhere. If the law were to be merely clarificatory (something on the lines of adding a paragraph to the interpretations section, that statelessness means that all avenues to gaining a citizenship have been exhausted before applying for British citizenship), I think it may go through.

It's hard to imagine who would oppose it. Those of us who aren't refugees, asylum seekers, or from the EU have very few politicians who are willing to speak up for us as it is (not that the other groups shouldn't get at least as much advocacy as they currently do). I doubt anyone is going to defend the way the parents of the child at the centre of this case have gamed the rules in order to get their child citizenship and ease their own paths to regularising their statuses in the UK.

[Obie]

The parent did not do anything unlawful. They have a right to not want their child to have Indian nationality.

I would have advised any Indian's parents in her situation to do the same.

The Government was seeking to give effect to its international obligation to prevent statelessness, in enacting that provision.

[ouflak1]

Thirdly, it may be (not sure how it would play out in the current political environment) easier to rush a bill through the UK Parliament clarifying the law than to invest in international diplomatic conversations that may go nowhere. If the law were to be merely clarificatory (something on the lines of adding a paragraph to the interpretations section, that statelessness means that all avenues to gaining a citizenship have been exhausted before applying for British citizenship), I think it may go through.

It's hard to imagine who would oppose it. Those of us who aren't refugees, asylum seekers, or from the EU have very few politicians who are willing to speak up for us as it is (not that the other groups shouldn't get at least as much advocacy as they currently do). I doubt anyone is going to defend the way the parents of the child at the centre of this case have gamed the rules in order to get their child citizenship and ease their own paths to regularising their statuses in the UK.

I would oppose it. They haven't 'gamed' anything if those are the rules in place. They are just following those rules. From a practical standpoint, how can you require that these people seek out foreign citizenships of other countries for somebody who may never set foot in that country ever? And what would 'exhausted all avenues' even mean? Is the UK willing to dive into the nationality laws of the world's nations to sort out if 'all avenues' have been exhausted'? I don't think so! They've already made a bit of a mess of things with the rules have in place for the UK itself.

And then someone has to prove some kind of intent. So what if the parents don't care and/or are completely apathetic to the whole citizenship thing? What if they can't afford it? Or if they qualify through some little-know-rarely-invoked rule because a grandfather served in the military 50 years ago during The War? What if the country in question only bestows citizenship in those situations by royal decree, possible but very highly unlikely? What if the parents don't know, or it's impossible to know, or understand any of the processes or more obscure possibilities? The child just remains stateless? It doesn't make sense. And even if the parents purposely decide not to pursue 'all avenues', whatever that might entail, to gain some kind of citizenship from wherever, with the express intent of getting that child UK citizenship, is that wrong? I can't really see how it is. Now maybe I'm biased coming from a country that practices jus soli. But the child has been born in the country and lived there their entire life. It's not the child's fault that they are stateless. It's not even the parents fault even if deliberate intent on their part is the case. It's due to the laws of whatever country or countries (the parents may each be a citizen of different countries, such as was the case with my marriage, and might each even be mulitple citizens themselves) involved. I hardly believe the child is expected to do something about that.

[JAJ]

Nothing unlawful has been done and it's not inherently unreasonable if parents with an objective to live in the U.K. should want British citizenship for their child over Indian citizenship. If the Government were to wish to change the law to impose additional restrictions on gaining British citizenship in statelessness situations (future applications only) there probably wouldn't be any issue getting Parliamentary approval. On the other hand- this applies to a small group of persons and may never work its way up the legislative/political priority scale.

[Obie]

Well I agree with this. There is many things the government can do to prevent that. They can takeep enfor cement action against parent. Threaten to put their children in care and remove them if they do not apply to register them. They could take those steps before the children turn 5 years .

[ouflak1]

They can takeep enfor cement action against parent.

How would the UK government even *know* that I've registered or not registered my child with my country's consulate? In my particular case, that is business strictly between me, my child, and the United States. And it is absolutely none of the UK's concern. They can change that ofcourse, but there is absolutely no hint that they ever will implement such a law.

Threaten to put their children in care and remove them if they do not apply to register them.

I'm certain that the UK would far more simply just change the law rather than start taking children away from their parents on the possibility that the parents might actually invoke the existing UK law (arguably) in their favor.

They could take those steps before the children turn 5 years .

And then when the child turns five and is still stateless? And the parents submit their application anyway?

There are countries that will actually penalize the parents for not acquiring some kind of visa permission within a period of time of the child's birth. Oman comes to mind. But even that doesn't involve the dystopian measures of removing the child from the parents or anything else so extreme.

[Richard W]

How would the UK government even *know* that I've registered or not registered my child with my country's consulate? In my particular case, that is business strictly between me, my child, and the United States. And it is absolutely none of the UK's concern. They can change that ofcourse, but there is absolutely no hint that they ever will implement such a law.

If said child were born British (so slightly off-topic), it would be of the UK's concern as soon as a passport was applied for.

There are countries that will actually penalize the parents for not acquiring some kind of visa permission within a period of time of the child's birth. Oman comes to mind. But even that doesn't involve the dystopian measures of removing the child from the parents or anything else so extreme.

The UK also comes to mind. Infants born in the UK become liable to charges for NHS treatment at the age of 3 months unless they have a suitable immigration status - see Chapter 1 of the "Guidance on implementing the overseas visitor hospital charging regulations 2015", linked to from https://www.gov.uk/government/publicati ... egulations .

[ouflak1]

If said child were born British...

Yeah probably best to just stick with the topic of stateless children, as there are so many other possibilies deserving their own topic. It would be much simpler if the UK had a nice pure beautiful form of jus soli.

There are countries that will actually penalize the parents for not acquiring some kind of visa permission within a period of time of the child's birth. Oman comes to mind. But even that doesn't involve the dystopian measures of removing the child from the parents or anything else so extreme.

The UK also comes to mind. Infants born in the UK become liable to charges for NHS treatment at the age of 3 months unless they have a suitable immigration status - see Chapter 1 of the "Guidance on implementing the overseas visitor hospital charging regulations 2015", linked to from https://www.gov.uk/government/publicati ... egulations .

But the parents can just pay any NHS fees as they come up, if they ever do. The parents never have to acquire any visa for the child, and they certainly never have to attempt to contact any government(s) about the possibily of citizenship(s); possibilities which may or may not exist.