This is a question that has caused a lot of hurt and confusion in recent years, particularly among the children of the Windrush victims, and also children of EU nationals. Many people who were born and raised in the UK find that they need to navigate the confusing world of nationality law.
In fact, some of them may be British. Others may be able to register as British, if they are still children.
First, an important note on fathers
Nationality law has some strange and old fashioned rules about unmarried fathers. It is not a simple biological question. It is frankly quite offensive to modern eyes, but it is still relevant.
Prior to1st July 2006, the Home Office is concerned about whether the child was ‘legitimate’. A father who was not married to the child’s mother could not pass his British nationality to children.
There are some complicated rules where a child became ‘legitimate’ after birth, for example if their parents got married.
After 1st July 2006, an unmarried father can pass his British citizenship to his children.
However, if the child’s mother is married to somebody else, then that person is the child’s father. This is the case even if the mother has been separated from her husband for many years, and is living with the natural father of the child. This is still pretty weird in the modern world.
In the text below, I simply refer to a ‘parent’ but keep in mind that a ‘father’ must meet the rules above to be a ‘parent’.
There are also particular rules concerning adopted children or children conceived through surrogacy for example.
Children born in the UK to British or Irish nationals
Children born in the UK, to at least one British or Irish parent who was living in the UK at the date of birth will be automatically British.
Children born in the UK before 1st January 1983
All children born in the UK before 1st January 1983 are British, regardless of the status of their parents.
Children born in the UK to parents with Indefinite Leave to Remain (ILR), a right of abode or a right of re-admission
Children will be automatically British if they were born;
- On or after 1st January 1983;
- To a parent who was living in the UK and;
- That parent had ILR, a right of abode or a right of re-admission when the child was born.
Anyone relying on this will need evidence of their parent’s immigration status at the date that they were born. In some case this can prove difficult.
Children of EU and EEA nationals
The position of the children of EU nationals is complicated.
- Children of EU nationals, who were born in the UK, should check whether they can rely on one of the options listed above. If not;
- Consider whether your parent’s country was a member of the EU/EEA on the day that you were born. If it wasn’t, then you won’t be British automatically;
- If your parent’s country was a full member of the EU on the day that you were born then you need to check the rules in place on your date of birth.
- Between 1st January 1983 and 1st October 2000- Children born to EU nationals who were living and working or studying in the UK will be British automatically.
- Between 2 October 2000 and 29 April 2006- Most children born to EU nationals will not be British automatically. There are a small number of exceptions. These apply if the EU national parent had been working or self employed in the UK, and died or had to stop work before you were born.
- Children born after 29th April 2006- Children will be British automatically if their EU national parent was living in the UK and had permanent residence when the child was born.
- Children born after 29th March 2019- The position in the bullet point above continues to apply. In addition, children born in the UK to parents with ‘settled status’ under the EU settled Status scheme will be British automatically.
Indefinite Leave to Remain and Permanent Residence- what is there difference?
Briefly, Permanent Residence is a status that stems from EU law. It applies to EU nationals and their non-EU family members. It is acquired automatically once a person has been living and ‘exercising treaty rights’ in another member state for 5 years.
Indefinite Leave to Remain stems from the Immigration Rules. It is not acquired automatically; it has to be granted by the Home Office. For more detail, please see here (link to article on this).
However, people with permanent residence and indefinite leave to remain are all considered ‘settled’ for the purposes of UK nationality law.
My parents didn’t become ‘settled’ until after I was born.
If a child is born in the UK and one of their parents becomes settled at a later date, then that child is not automatically British. However, may be able to register as British. This application must be made before the child’s 18th birthday.
Unfortunately, there is a hefty Home Office fee for this, currently £1012. A successful legal challenge has been brought regarding this fee, and that decision is likely to be the subject of an appeal.
But I have lived here all my life!
A child born on or after 1st January 1983 can register as British if they were born in the UK and lived in the UK for their first 10 years of life. This applies even if neither parent is British or settled.
This article concerns children born in the UK. It is also possible in some circumstances for a child born outside the UK to be British. This will be covered in a separate post.
This is a post designed to provide general information on this issue, not legal advice. If you need to discuss your own particular situation, please get in touch.
If you need advice on any of the issues in this article, or if you would like help in preparing an application, then we can assist you. Please contact on of our Immigration Solicitors on 0808 168 5550.