Migrant children taken into care will often have uncertain immigration status. They may have leave to remain linked to family; have been a dependant on their parent's visa; or have no leave to remain in the UK. It is important that social workers consider a child's immigration status when looking at care plans and pathway plans. If a child is not assisted to regularise their status, which could include making a citizenship application, this can have a devastating effect on their future.
Nationality and citizenship
One option that may be open to migrant children in care is British citizenship. This is the most secure status that a child can have. If an individual is a British citizen, he or she is not subject to immigration control, is entitled to a British passport and will enjoy the protection of Embassies/High Commissions abroad.
Citizenship is permanent and can only be taken away in very rare cases. Citizenship also creates stability for a child and opens up educational opportunities, including access to university (particularly for home fees and student finance). Citizenship is also the only path to certain careers, including joining the armed forces, civil service or police.
Citizenship and nationality are intrinsically linked to a child's identity and it is crucial that the child is provided with good quality advice about these issues. Ensuring that the child can express their views and have them taken into account is important in any decision about nationality.
There are laws relating to children being automatically British or entitled to register as a British citizen. For example, a child born in the UK after July 2006 to a British or settled parent will be automatically British. If the child is born before July 2006 to a British/settled father, who is not married to the child's mother, the child is entitled to British citizenship but does not automatically have it.
A child may also become eligible for British citizenship in certain circumstances, such as when they were born in the UK and have lived here for 10 years or more. They will still have to apply to register as British citizens.
Discretionary UK citizenships
The Home Office also has the discretion to register children as British citizens. This is very relevant for migrant children in care whose immigration status is uncertain. The Home Office has detailed guidance on discretionary registration cases. Some of the factors taken into account by the Home Office include: the future intentions of the child; residence in the UK; immigration status of parents; and good character. When an application is made for a child in care, the Home Office would normally expect a background report from social services. This will include what social services believe are in the child's best interests and the views of the child.
Good character is an important aspect of a decision. This is considered in all applications by children over the age of 10 for nationality, whether discretionary or not. Unfortunately, the Home Office uses adult standards for considering good character for anyone over the age of 10, so even cautions and warnings can be considered to be reasons for refusing an application. It is important that any issues relating to character are covered in evidence as part of the application.
Migrant children who are in care will normally require immigration advice from an immigration solicitor or adviser, and he or she should also explore the nationality options noted above. If a nationality application is to be made, fees for the immigration advice and any application made would normally be met by the local authority as part of their duties as corporate parents. There is no legal aid available for nationality applications. There are some specific legal services working in this area, including a pro bono project at Coram Children's Legal Centre, the Project for the Registration of British Citizens and Coventry Law Centre.
An application for citizenship under the Home Office's discretion is made under Form MN1 and must also be accompanied by the appropriate fee. Evidence that could be included in such an application, over and above the background report noted above, may include: a statement from the child; care plans; any school documentation; and letters of support from groups, organisations or religious institutions. This is not an exhaustive list and it will always depend on a child's circumstances.
Decisions on discretionary applications
There is no time limit for the Home Office to provide a decision, although one would normally expect a decision within six months. If an application to register a child as a British citizen is granted, the Home Office will issue the child with a certificate of registration.
If a citizenship application is refused, the application fee is not reimbursed. There is no automatic appeal right. The only available remedy, after a review, is the issuing of judicial review proceedings in the High Court. Legal aid is available for judicial review, so the child or young person should be assisted to find a solicitor to do this.
Download Legal Update: Migrant children's citizenship as a PDF
Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com
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