September 2018

4 September 2018
UNITED KINGDOM
www.theasianindependent.co.uk
Stateless children–Right to
register as British citizens
It has been confirmed by the recent
decision of the High Court (MK (A
CHILD BY HER LITIGATION
FRIEND CAE) V SSHD [2017]
EWHC 1365 THAT Stateless children
born in the UK have a right to
register as British citizens after living
here for a continuous period of five
years.
The case involved a child (MK)
born in the UK in November 2010.
Her parents were both nationals of
India. MK had made an application
for registration as a British citizen
under Schedule 2 of the British
Nationality Act 1981. Under Schedule
2 of the British Nationality Act 1981,
a child or young person born in the
UK can be registered as a British citizen
if he or she:
is and has always been stateless
was under the age of 22 on the date
of the application
has lived in the UK 5 years prior to
the making of the application.
The Home Office refused the application
and judicial review proceedings
were commenced. There were some
difficulties in relation to evidence,
particularly relating to Indian law and
the interpretation and practice of that
law. However, the high court decided
that MK was entitled to register
as a British citizen as
she was and is stateless as
she does not have Indian
nationality.
This case will be important
for those children who
are born in the UK, are
stateless and are making an
application in the same or
similar circumstances. It has
reiterated by this case that
stateless children born in the
UK have a right to register
as British citizens after living
here for a continuous
period of five years.
To register under paragraph 3 of
Schedule 2 to the British Nationality
Act 1981 a stateless person must meet
four conditions. She or he must be
born in the UK; have always been
stateless; be under the age of 22 and
living in the UK at the time of applying
to register; and at the date of application
have spent the last five years
living in the UK (with no more than
450 days absence during this period
unless ‘special circumstances’ are
shown).
An applicant will also need to show
he or she is stateless. Home Office
guidance indicates decision-makers
will want to see letters from the
national authorities of each parent
confirming the child or young person
is not and has never held their nationality.
The Home Office also expects
evidence that applicants have been
living in the UK for the past five years
and without excessive absences –
even though their statelessness
make it less
likely someone could
have left the country.
The right to register
under paragraph 3 of
Schedule 2 is time limited.
Once the child
turns 22, if no application
has been made this
right is lost forever.
There is generally no
good reason to delay
registration where a
child has and wishes to
exercise her or his right
to do so if the conditions
of paragraph 3 are met.
Should a stateless person miss the
opportunity to register by turning 22,
section 1(4) of the 1981 Act may provide
an alternative. It provides a right
to register as British to those born in
the UK, who live here for the first ten
years of their lives. There is no age
cut-off by when this right must be
exercised. However, an applicant
under section 1(4) must be of good
character whereas an applicant under
paragraph 3 need not.
To apply for British Nationally is
really expensive. Currently, the fee
for a child to register as British is
£973. The home office is making hundreds
of pounds above cost each time
a child or young person seeks to register
their right. The Home Office offers
no waiver or exemptions. The legal
aid is not available for advice and
assistance on these registration applications
(unless exceptional case funding
is granted). The applicants need
specialist legal help to recognise their
entitlement, identify the evidence
required, instruct experts where necessary
(an expert may be necessary to
show a child does not have her or his
parent’s nationality) and prepare an
application.
I will be more than happy to provide
all necessary information and
legal help if you need to apply for
your child.
Ajay Aggarwal, Solicitor
Moblie; 07727 688 291