Are my two children British? One might be, but the other?

[sprocket314]

Hi all,

Our case is a bit special because if you read the MN1 guidelines, then my youngest is British but I don't know if my eldest is or not. And if I look at the Government's website, neither of them are British and both need an MN1.

Our details:

I am Spanish born, came to UK on 26th September 2005 to study an MSc and got a job just before finishing the MSc which I kept till today. I also did my British Citizenship ceremony on 4th June 2015.

My wife is Chinese born and came to UK a couple of months earlier than me for the same MSc. We married in 2007 in the UK.

My son was born in the UK on 4th November 2010, so in theory I was settled in the UK when he was born (as I was exercising my EEA rights from 26/09/2005, which means five years happened on 26/09/2010), just by a month and 5 days or so, but I was settled. I believe he would need an MN1 to be naturalised under section 1(3)? Is this correct?

My daughter was born in the UK on 16th March 2015, but I did not become British until the ceremony on 4th June 2015, so she is not automatically British? I was definitely settled by then. Would she need an MN1 under section 1(3) or is she automatically British?

From the MN1 Guideline document, page 8:

Children of EEA nationals
Some children born in the United Kingdom to EEA and Swiss nationals will be British
citizens automatically. However, changes in the law mean that different rules apply
depending on when a child was born.
 A child born in the United Kingdom before 2/10/2000 to an EEA national parent
will be a British citizen if the parent was exercising EC Treaty rights at the time
of birth.
 A child born in the United Kingdom between 2/10/2000 and 30 April 2006 to an
EEA national parent will only be a British citizen if the parent had indefinite leave
to remain in the UK at the time of the birth. (This does not apply to EEA
nationals with an unconditional right of residence, such as retired people or
someone who is unable to work because of incapacity).
 A child born in the United Kingdom to an EEA national after 30 April 2006 will
be a British citizen if their parent had been in the United Kingdom exercising
EC Treaty rights in accordance with the Immigration (European Economic
Area) Regulations 2006 for more than 5 years or has indefinite leave to
remain.

This would be the case for my daughter for sure, and for my son I am not so sure when do the years of exercising treaty rights start counting from (since I arrived to the country or since the legislation came into place in 2006?). If the former, then my son is also British, if the latter, then he needs MN1.

Many thanks in advance for your help.
Best regards,

Carlos

[Richard W]

This would be the case for my daughter for sure, and for my son I am not so sure when do the years of exercising treaty rights start counting from (since I arrived to the country or since the legislation came into place in 2006?). If the former, then my son is also British, if the latter, then he needs MN1.

Your daughter is definitely British, as you say.

The qualifying years may be from before 2006, but the situation in your case is unclear. The problem is that it is not clear whether you were indeed exercising treaty rights as a student. The question is, did you have Comprehensive Sickness Insurance? The likeliest way to have had it is that you had an EHIC or one of its predecessors from Spain to cover you for the time before employment. Failing that, for determining permanent residence, the Home Office will disregard the absence of CSI for a period as a student when you had a residence permit - but I'm not sure if the disregard is valid for nationality purposes!

CSI is not required for your initial 3 months in the UK.

If you have a residence permit or residence card, check it to confirm that you have not been granted indefinite leave to remain.

What is your wife's immigration status? If she has something other than permanent residence, it might possibly be relevant.

[sprocket314]

Thank you so much for replying!
They made me register at the closest GP clinic to my university soon after I arrived. I wonder if that would count.
I didn't have or need any residence permit due to my EU nationality. I did have the acceptance letter from the university when I crossed the border and the rental agreement for my room.

I think the safest is to apply for my son using MN1.

My problem when applying for my daughter's British passport was when filling the form, I can put my British passport in, but I didn't know if that would be sufficient as she was born 3 months before I got it. I can also put my naturalisation certificate.

Many thanks again!

[sprocket314]

My wife got her ILR in 2013, which proves she was definitely settled by then for our daughter.

[Richard W]

They made me register at the closest GP clinic to my university soon after I arrived. I wonder if that would count.

The European Commission believes that access to the NHS would suffice, but there has been no useful action from them, and I think that now none is likely.

I didn't have or need any residence permit due to my EU nationality.

That is now a widespread problem.

I think the safest is to apply for my son using MN1.

I think so. I'm not sure what the position would be if registration were refused on the ground that he is already British, and then the Passport Office now or subsequently decided that he wasn't British. It would be simplest to have your son registered before he reaches the age of 10, when there will be the additional requirement of good character.

My problem when applying for my daughter's British passport was when filling the form, I can put my British passport in, but I didn't know if that would be sufficient as she was born 3 months before I got it. I can also put my naturalisation certificate.

The best evidence you have for your daughter being British is probably the ILR stamp in your wife's passport. The Passport Office prefer to derive nationality from the mother. Do you even have simple evidence that you were settled before she was born? You might have a Document Certifying Permanent Residence (DCPR), but I think it is unlikely.

Neither your passport nor your naturalisation certificate conclusively prove that you were free from immigration restrictions when your daughter was born - the 12 month requirement before naturalisation can be waived.

[sprocket314]

Well, I had to prove that I was settled and exercising treaty rights in order to be naturalised, so that is why I thought that would be sufficient. I have P60s since 2006 as well.

[Richard W]

Well, I had to prove that I was settled and exercising treaty rights in order to be naturalised, so that is why I thought that would be sufficient. I have P60s since 2006 as well.

That evidence should suffice if you still have it - it's a matter of convenience. You have a choice.

[JAJ]

My son was born in the UK on 4th November 2010, so in theory I was settled in the UK when he was born (as I was exercising my EEA rights from 26/09/2005, which means five years happened on 26/09/2010), just by a month and 5 days or so, but I was settled. I believe he would need an MN1 to be naturalised under section 1(3)? Is this correct?

As others have noted, unless you can show evidence of Comprehensive Sickness Insurance for the year or so you spent as a student (NHS does not count) then the 5 year clock for Permanent Residence did not start until you took up employment. Which likely means you became settled after he was born. He can be registered as British under section 1(3) before he is 18- but advisable normally to do so as soon as possible. Since you've become a British citizen your prior EEA status is irrelevant- if you make the application with details of your British citizenship and his mother's ILR then it should be straightforward.

My daughter was born in the UK on 16th March 2015, but I did not become British until the ceremony on 4th June 2015, so she is not automatically British? I was definitely settled by then. Would she need an MN1 under section 1(3) or is she automatically British?

She's automatically British- but if your wife was granted ILR then her British citizenship can be proved to the Passport Office using her mother's status (simpler than trying to show your EEA status at the time). However, even if she gets a British passport, you should take care to preserve- permanently- all immigration/employment records for both you and her mother in case her British citizenship ever has to be re-evidenced in future. The United Kingdom does not have a national population register so you have to take responsibility for keeping your own records. This includes keeping all expired British passports.

You became British in 2015- are you familiar with Spanish laws on dual citizenship. There are requirements for both you and your children to maintain Spanish citizenship alongside British.
http://www.exteriores.gob.es/Portal/en/ ... lidad.aspx

[sprocket314]

Thank you so much for the very clear response.
We will apply the MN1 for my son and provide all evidence for me and my wife.

We will also apply for my daughter's British passport directly using my wife's ILR.

I know about the paperwork needed to maintain the Spanish citizenship (within 3 years of taking any other citizenship) as I went through it myself to keep it. It wasn't easy, but it's done for me.

Now I will have to do the same with both my children.

It is painful, but truly worth it.

Many thanks again to both of you for helping us so much.

Carlos and Yuan.

[sprocket314]

Just to follow up on our case for anybody's reference.

My daughter did get her British passport without trouble. They used only my wife's ILR and they did not care for me or my status.

While there, our case worker was super nice and we asked him about our son's case.
He said without a doubt that he is also British as long as I can prove with any document that I was exerting my EEA rights from the time I arrived at London for my MSc. So it is OK to start counting from my arrival.

He confirmed that a letter from my university stating start and end dates of my course would suffice, plus my P60s and/or letter from my employer for the other 4 years of the 5 years.

So we are going to have a go at that and see if it goes through. Failing that, we'll go the MN1 route.

Thanks again for your help!

Carlos & Yuan

[secret.simon]

I was exerting my EEA rights from the time I arrived at London for my MSc.

Exercising treaty rights does require you to have had either CSI or a non-UK EHIC card while you were a student. Otherwise, for that period, you were not exercising treaty rights.

unless you can show evidence of Comprehensive Sickness Insurance for the year or so you spent as a student (NHS does not count) then the 5 year clock for Permanent Residence did not start until you took up employment. Which likely means you became settled after he was born. He can be registered as British under section 1(3) before he is 18- but advisable normally to do so as soon as possible.

[JAJ]

While there, our case worker was super nice and we asked him about our son's case.
He said without a doubt that he is also British as long as I can prove with any document that I was exerting my EEA rights from the time I arrived at London for my MSc. So it is OK to start counting from my arrival.

He confirmed that a letter from my university stating start and end dates of my course would suffice, plus my P60s and/or letter from my employer for the other 4 years of the 5 years.

So we are going to have a go at that and see if it goes through. Failing that, we'll go the MN1 route.

Before making your decision- if the Passport Office issue a British passport by mistake, the passport can easily be revoked, or renewals refused later on. At which time- it may not be possible to make an MN1 application- for a variety of reasons. Or various life opportunities may be lost while things are resolved.

Unless you can unambiguously prove your child is British- without using a passport as evidence- then you should in general take the MN1 option unless there is a strong reason otherwise (loss of another citizenship, etc.). There is a fee but you should consider it as the equivalent of a lifetime insurance policy on citizenship for your son.