KNOWLEDGE

Children and British Nationality

MortonFraser_Stuart McWilliams
Author
Stuart McWilliams
Partner
PUBLISHED:
20 October 2020
Audience:
Individuals and Families
category:
Article

One of the most common enquires I receive is "Are my children British?" Most people think that nationality law is straightforward - if someone is born in the UK, or they have British children, they must be British? But that is not the case and this is something I've discussed before

Whether someone is British can depend on a number of factors, including:

  • Where they were born
  • When they were born
  • What nationality or immigration status their parents held when they were born
  • Whether their parents were married at the time of their birth
  • Where and when their parents were born

When assessing if a child is British automatically, or is able to register as British, it is also important to understand that there are actually two main types of British nationality:

  • British nationality otherwise than by descent. This is the type of nationality acquired by someone who is born in the UK but it can also apply to someone born outside the UK in limited circumstances. It can be passed to one generation of children born outside the UK;
  • British nationality by descent. This is the type of nationality most often acquired by children born outside the UK who have British parents. It cannot be automatically passed on to future generations born outside the UK.

Working out if someone holds British nationality by descent or otherwise is not always easy. It can require a detailed review of the parents' circumstances and may also require research into their career to see if they working abroad in service of UK Crown.

The following is a basic guide to how someone can become a British national, but as cases can be very fact specific I recommend anyone considering this question takes legal advice to make sure they are following the correct route.

Scenario

Likely British Nationality position

   

Born in the UK, after 1983, to a British mother or a mother holding indefinite leave to remain

Automatically British

Born in the UK, between 1983 and 2006, to a British father or father holding indefinite leave to remain

Only British if the parents were married at the time of birth. Otherwise the individual can register as a British national

Born in the UK after 2006 with either parent holding indefinite leave to remain at the time of birth

Automatically British

Born in the UK to a parent with temporary leave to remain who subsequently obtains indefinite leave to remain

Not British automatically, but can register as British before they turn 18.

Born outside the UK to a parent with indefinite leave to remain

Not British automatically, any registration would be at the discretion of the Home Office.

First Generation Expat - Born outside the UK to a parent with British citizenship otherwise than by descent

British by descent in most cases but can depend on marital status of parents and date of birth

Second Generation Expat - Born outside the UK to a parent with British citizenship by descent

Not British automatically but may be able to register as British if parent spend time in the UK prior to birth, or all family members live in the UK after birth.

Adopted by British national

Nationality will depend on where and when adoption takes place.

Nationality law is an extremely complicated area, and while many people think it is straightforward, the fact the leading textbook is more than 1800 pages long tells its own story.

We are specialists in dealing with nationality cases and some of the recent cases we have worked on include:

  • Registering individuals as British when they were born before 1983 to a British mother;
  • Registering second generation expats as British under section 3(2) and section 3(5) of the British Nationality Act 1981;
  • Applying for the Home Office to exercise discretion to register adopted children as British; and
  • Obtaining and submitting that a second generation expat was automatically British based on their grandfather's employment history.

If you, or one of your children, believe you are entitled to British nationality please get in touch as we can help you identify the best way to obtain your British passport.

 

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.