British Citizenship for Child born abroad before marriage

[gia1234]

Dear Friends,

I need you kind advice in regards to my daughters British citizenship application.

Our daughter born out of wedlock for a British Citizen ( naturalisation ) in Malaysia.
I applied for Malaysian birth certificate but couldn't include fathers details.
She' s having Malaysian passport as well.
Both birth certificate and passport with only her first name, no surname.
We got married now.
I'm now under UK spouse visa & our daughter under dependent visa.
How do I register my daughter as a British citizen.

Please do apologize if I posted in a wrong column,please guide me.
Thank you.

[Obie]

What year was she born?
Nationality of father at time of birth?

Do you have DNA to prove paternity?

[gia1234]

Dear Obie,

Thank you very much for your reply.
She born in 2015.
Father is British citizen for past 15 years.
We are going to book for DNA test by next week from the Lab suggested by the gov.uk webpage

I am just confuse whether we need to apply for British citizenship using MN1 or she's already British citizen by birth and just need to apply for British passport.

Thank you.

Regards,
Gia

[Obie]

If he is father and Paternity can be proven, then MN1 will not be necessary.

[gia1234]

Dear Obie,

It is a very good news for us.

Please correct me if I am wrong on the further steps :

- Proof of paternity
- Certificate of Entitlement to the Right of Abode.
- Apply for British passport



Regards,
Gia

[Obie]

Is the child in Malaysia or in the UK?

COE is only necessary if you want this stamped in her Malaysian passport, but British Citizenship could be obtained otherwise.

[gia1234]

I do apologize to trouble you.
Basically me and my daughter are in UK now.
I'm under Spouse visa and our daughter under child dependent visa.
We came to UK in April this year.
Just not sure how to apply for British passport for her....
Are we able to apply British passport for her with the proof of paternity.
She got birth certificate ( Malaysian ) but without fathers details.

Thanks.

Regards,
Gia

[Obie]

She is British , the Home office should not have issued dependent visa to her.

[gia1234]

Oh OK......so maybe we just need to apply British passport and wait for the outcome.
Do you think this is the right way Obie.

Thank you.

Regards
Gia

[Richard W]

She is British , the Home office should not have issued dependent visa to her.

As I read the British Nationality Aact 1981 Section 50(9A)((c) and the corresponding regulation and its amendments, the girl is only British while the father satisfies the home Secretary that he is the 'natural father' of the child. Consequently, the girl is not yet British.

This seems to be a case where a British passport will unarguably be the evidence that someone, namely the girl, is British; it will be on a par with a naturalisation or registration certificate!

[Obie]

The woman knows the father of her child. All my advise given to her, if you read my advise, are based on the DNa test.

If there is proof of paternity, then it clearly has retroactive effect.

[Richard W]

The woman knows the father of her child. All my advise given to her, if you read my advise, are based on the DNa test.

If there is proof of paternity, then it clearly has retroactive effect.

Criticising the ECO on the basis of a prospective change is wrong.

Today, at the time the visa was granted, the child did not have British nationality, even if in the future the British child will have had British nationality at that time.

The legal test is not whether someone is actually the natural father (a permanently true or false state of affairs), but either
(1) whether the secretary of state is satisfied by the father as to his paternity (a changeable state of affairs) or
(2) whether the secretary of state has ever been satisfied by the father as to his paternity (a state of affairs which can only change from false to true)

I fear it is (1), but I think matters will normally proceed as though it were (2).

[Obie]

The above is clearly wrong. It makes no sense.

A DNA test does not confer citizenship on the child, it merely confirms it.

If a person has citizenship under section 1 (1) of the 1981 act, it can only have existed since they were born. It is not conferred by the DNA test.

Therefore if it is proven by the DNA, then the entry clearance is ultra vires, as the 1971 Act dies not apply to a British citizen, irrespective of whether the ECO knew about the status of the child.

Either a child acquires citizenship at birth by virtue of section 1 (1) or section 2 (1) or they don't. As simple as that.

If they do, then the fact that it was proven late in the day, does not change things.

The provision your earlier citied don't confer citizenship, they simply provide the means by which it can be proven.

[Richard W]

Either a child acquires citizenship at birth by virtue of section 1 (1) or section 2 (1) or they don't. As simple as that.
<snip>
The provision your earlier citied don't confer citizenship, they simply provide the means by which it can be proven.

The regulations also mean that if evidence is never presented, the child is not British. I'm also rather concerned about the requirement that the father satisfy the SS of paternity. I think you are assuming that the courts will throw that requirement out. It's clearly unjust to posthumous children.

Note that the acquisition at birth is dependent on consequent actions, which I will agree is ridiculous.

Therefore if it is proven by the DNA, then the entry clearance is ultra vires, as the 1971 Act dies not apply to a British citizen, irrespective of whether the ECO knew about the status of the child.

That doesn't mean the ECO shouldn't have granted entry clearance.

The interpretation of the principle that entry clearance is meaningless for a British citizen is very flawed. The interpretation should have been that the clearance is valid, but that the conditions imposed on behaviour in the UK are void. Deprivation of British nationality should be automatically accompanied by a revocation of all clearance. The current interpretation combined with the administration of passports is an injustice.

[Obie]

You have lost me Richard.

I think you are conflating how a person acquire citizenship by virtue of the statute and how they prove it, to get documents confirming their citizenship.

If a person is a father of a child, he does not become the father following a positive paternity test. He became a father from the day the child is born. The paternity test simply prove a state of affair that existed after birth, that is, the person becoming a father. The paternity is only because father''s name was not on birth certificate, otherwise it would have been unnecessary.

[Richard W]

I think you are conflating how a person acquire citizenship by virtue of the statute and how they prove it, to get documents confirming their citizenship.

Taking act and regulation together, the relevant definition under Section 50(9A)(c) for those whose birth certificate was issued on or after 10 September 2015 is that the father is someone who satisfies the requirement that he must satisfy the Secretary of State that he is the natural father of the child. (I do not see how to condense the wording without changing the range of meanings.)

If a person is a father of a child, he does not become the father following a positive paternity test. He became a father from the day the child is born. The paternity test simply prove a state of affair that existed after birth, that is, the person becoming a father.

What is your authority for this reasoning? Why does not the timing for legitimation apply; where legitimation is relevant, the rule is, "A person born out of wedlock and legitimated by the subsequent marriage of his parents shall, as from the date of the marriage, be treated for the purposes of this Act as if he had been born legitimate". (Some interpretation of the last bit is needed, which is presumably why the text of Section 47 is omitted from the consolidated version of the BNA 1981.) The relevant event would be the SS becoming satisfied.

The paternity is only because father''s name was not on birth certificate, otherwise it would have been unnecessary.

I find that hard to believe. Are you reporting that British birth certificates are still being accepted as the only evidence? Even when issued before 10 September 2015, they had to be within a year of the birth to guarantee acceptance. Some foreign birth certificates do not need evidence to make good the lack of a father's acknowledgement; this makes sense in countries which lack the legal concept of illegitimacy, such as Thailand.

[aliq09]

Not quiet expert as respected members but it seems like father has to prove his parenthood . Case is not as simple as getting DNA results but it all goes to past history of father

1) Is father already married and got children from earlier marriage ?
2) Father is divorced and this is the second marriage etc

So in my it's not as simple as it appears ...

Summary : Better documentary evidance and a good lawyer

[Richard W]

Case is not as simple as getting DNA results but it all goes to past history of father

1) Is father already married and got children from earlier marriage ?
2) Father is divorced and this is the second marriage etc

So in my it's not as simple as it appears ...

A trustworthy properly conducted DNA test makes all these questions irrelevant - provided it comes up with the desired answer.

The awkward question is whether it is worth waiting 5 years and making the girl "British other than by descent" via MN1, as opposed to establishing her as "British by descent" this year. (I'm assuming the Home Office can't force matters to deny the girl the opportunity to be British other than by descent.)

Getting the girl a British passport recording her father's surname might be difficult.