High Court: Unregistered Indian Children Born in the UK are Stateless and Entitled to British Citizenship

UPDATE: The Indian High Commission is no longer issuing applicants with Non-Acquisition of Indian Nationality Certificates (NACs). 

It is now necessary to apply to VFS Global direct and pay a total fee of £26.44.

A number of documents must be submitted with the application.

1. Miscellaneous Services form to be filled by both parents with a recent passport size photograph of each parent.
2. Application form for Non-Acquisition of Nationality Certificate with full particulars of Child, Father and Mother duly filled in.
3. Original Birth Registration Certificate issued from UK Registrar Office with a photocopy.
4. Valid original passports of both parents and photocopies of the first (biodata page) and last page (address page) of all passports.
   1. At least one parent’s passport must be valid to apply for NAC.
   2. If one parent’s passport is valid and another parent’s passport is not valid, a copy of the expired passport must be submitted.
   3. If any parent does not have a physical passport for verification but has only a copy, an  affidavit must be submitted confirming that the passport is either with the Home Office or has been Lost.
   4. If both parents passports have been lost or are not traceable, no service will be provided.
   5. In case of a single parent/divorce/court case for custody of child or desertion of one parent, an affidavit to this effect must be submitted.
5. Original Marriage Certificate and photocopy
   1. In case no marriage certificate is available or the child was born out of wedlock, an affidavit to this effect must be submitted.
6. Original proof of address and photocopies of the same.

There is a separate fee of £19 payable for every affidavit that must be submitted.

Background

The High Court has ruled that a six year old Indian child who was born in the UK is stateless and therefore entitled to British citizenship.

The case of MK (India) Statelessness EWHC [2017] 1365 (Admin) will potentially open the gates for thousands  of children to be registered as British citizens.

The importance of the ruling cannot be overstated and should be clearly understood by all.

Statelessness

A person is stateless when they do not have a country of nationality and no government takes responsibility for them.

A stateless person lacks legal residence and the right of return to their country, and cannot access consular protection from anywhere.

A person is stateless is he or she does not possess any nationality.

The ability to acquire a nationality is irrelevant.

Under Schedule 2 of the British Nationality Act 1981, a person who is stateless can be registered as a British Citizen if he or she:

• was born in the UK
• is and has always been stateless
• was under the age of 22 on the date of the application
• has lived in the UK for the 5 years prior to the making of the application.

MK

MK was born in the UK in November 2010.

Her parents are both Indian nationals who had overstayed their visas in the UK.

After their son was born, the parents attempted to have his birth registered at the Indian High Commission but encountered numerous difficulties.

In March 2016, her parents applied for her to be granted British citizenship on the grounds that she was stateless.

The Home Office refused her application just two months later.

MK’s parents thereafter issued judicial review proceedings against the Home Secretary.

The case was heard by the High Court in February 2017 and the decision was published in June 2017.

The Decision

The High Court appeared critical that there was no expert evidence provided about Indian nationality law and thereafter proceeded to interpret the law for itself.

It found that an Indian child was stateless if the following conditions were met:

• They were born on or after 3 December 2004
• They were born outside of India
• At least one parent is an Indian national
• They have never been to India
• Their birth has not been registered with the Indian authorities
• They have no other nationality

In such circumstances, the child is stateless for the purposes of Schedule 2 of the British Nationality Act 1981.

The fact that the child can apply for Indian citizenship is irrelevant. As it stands, the child is stateless.

To be registered as a British Citizen, you will still need to meet the other requirements, namely that the child was born in the UK, is under 22 and has lived in the UK for the five years preceding the application.

Is your child entitled to British Citizenship? If so, act quickly!

It is highly likely that the Home Office will seek to appeal this decision to the Court of Appeal and also try to tighten up the loophole to deny citizenship to those who fit within this category.

It is critical therefore that if you believe that you or your child falls are stateless like MK, that you immediately make the application for citizenship.

The case may have wider implications and not just affect Indian nationals.

As long as you can show that your child did not gain your citizenship immediately upon birth, i.e. there is a need for a registration process, it may be possible for your child to benefit from this case.

If you would like to discuss the matter further, please contact me by emailing fahad@visadreams.com

The full judgment in MK (India) Statelessness EWHC [2017] 1365 (Admin) can be read here.

For more advice and information about registering your child as a British Citizen, please read 3 Ways to Give Your Child the Gift of British Citizenship and “If Only I had Naturalised …” The Biggest Regret of those Facing Deportation from the UK.

 

Visadreams.com,  Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London.  If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@riverwaylaw.com or submit your details here.