The British Nationality Act 1981 provides that a child born in the UK is either automatically born British or, they are not British but may be able to apply to become British through a process called registration when certain conditions are satisfied. The most relevant subsections of the Act are set out:
1 Acquisition by birth or adoption.
(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is—
(a) a British citizen; or
(b) settled in the United Kingdom
Example: a child born in the UK where one parent holds settled status under the EU settlement scheme will automatically be born a British citizen, on account of one parent being considered settled in the UK at the date the child is born.
(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) (1A) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—
(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b) an application is made for his registration as a British citizen
Example: a child born in the UK where both parents hold pre-settled status under the EU settlement scheme is not automatically born British as neither Parents is settled in the UK at the date of the Childs birth. However, the child will be entitled to register as a British citizen if either of the parents is granted settled status in the future and the child is still under 18 years old at the date of application. If the child does not make an application to the Home Office to register, they will not become a British citizen. An application to register a child as a British citizen under this section of the British Nationality Act currently costs £1012.
The BNA Regulations
The British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 (The BNA Regulations) relate exclusively to children born in the UK whose parent(s) obtain status under the EUSS. The purpose of the BNA Regulations is to amend the above provisions of the British Nationality Act 1981 so that children born on or after 01 July 2021 automatically become British if one of their parents is granted settled status under Appendix EU after the child is born (subject to meeting the relevant conditions). The same approach is taken where parents are issued Indefinite Leave under Appendix EU of the Isle of Man immigration rules. The child automatically becomes British on the date the parent is granted settled status. This is a significant change to the existing law as it removes the requirement for the child to make a paid registration application to become British once either parent is granted settled status. It also removes the choice for the child / parent to decide if they want the child to become British.
The Regulations cover two situations; in both cases the outcome of the EUSS application must be that the parent is granted settled status and was eligible for settled status before the date the child was born (in other words, the parents had been continuously resident in the UK for five years at the date of the child’s birth). The child must be born on after 01 July 2021:
• A parent applicant applies before the EUSS deadline and then has a child born in the UK on after 01 July 2021, but before they receive the decision on the EUSS application.
• The parent applicant misses the EUSS deadline but subsequently makes a late application that is accepted and is granted settled status. The child is born between 01 July 2021 and the date that the application is granted.
In either situation described, if the parent is granted settled status the child will become a British citizen automatically. This also applies to children where their parents were immigration exempt at the time of their birth if they were subsequently granted settled status once they ceased to be immigration exempt.
Potential discrimination issue
There is an issue with this approach highlighted in the explanatory memo at point 7.3, it states:
This means that such a person will, after 30th June 2021, be residing in the UK without immigration leave, until such time as their application to the EU Settlement Scheme is successful. Should any child be born in the UK to them in the meantime, the parent would not be able to meet the definition of ‘settled’ required under the BNA and the child would not automatically become a British citizen. This should be contrasted with the position had the child been born before the grace period ended (and assuming their parent would have met the eligibility requirements for Indefinite Leave under the EU Settlement Scheme at that time), or if they were born after a grant of Indefinite Leave.
A child born in the grace period to parents without settled status would only be British if it could be shown that their parents had attained permanent residence under the EEA Regulations (under Section 1(1) of the British Nationality Act 1981 the person is considered to be settled in the UK at the date of the child’s birth where they hold permanent residence).
However, there is no basis to argue that non-permanent residence parents who were eligible for settled status but did not apply before the child was born, could argue that the child is British. This is because as the law stands today (the Regulations to not take effect until 01 July 2021), a child is either automatically born British or, they are not British at all and need to apply to become British through registration. Therefore, a child who is born before the end of the grace period will not automatically become British if the parents are granted settled status under the EUSS even if the parents were had lived in the UK for five years at the point when the child is born.
Arguable, the Home Office could have created a set of Regulations to take affect from 01 January 2021 which would have created the same rule that is being implemented from 01 July 2021. Effectively, children born in the Grace Period (and before), are disadvantaged against those born post- Grace Period. The explanatory memo misstates the law where is says that a child born in the Grace Period would be born a British citizen “assuming their parent would have met the eligibility requirements for Indefinite Leave under the EU Settlement Scheme at that time”, as there is nothing in the British Nationality Act 1981 that provides for this legal situation.