We are often asked whether it is possible for the child of a UK-born father to claim a British passport if the parents were not married at the time of the birth. A British passport can only be issued to a British citizen or other type of British national.

by Bruce Mennell | | Blog

We are often asked whether it is possible for the child of a UK-born father to claim a British passport if the parents were not married at the time of the birth. A British passport can only be issued to a British citizen or other type of British national. This article looks at some of the circumstances in which the natural child of a UK-born man might derive British citizenship through him, even though there was no marriage between the parents at the time of the child's birth. It is assumed there is no useful ancestry on the mother's side.

1. Births before 1st July 2006

Birth in Wedlock

If the child is born during the valid marriage of the parents, British citizenship can be derived through the father, even if the parents divorce after the birth; the child has been born 'in wedlock'. This can also apply where a divorce takes place before the birth. If the parents were married at any time in the 10 months before the birth of the child, then the child is considered as born in wedlock, and is legitimate. A legitimate child can derive British citizenship through his or her father.

Legitimacy in the place of the father’s domicile

A child will also be considered as legitimate if the birth was legitimate under the law (in force at the time of the birth) of the place of domicile of the natural father. Domicile is the concept what determines an individual's personal law. Rather than reflecting a person's place of residence from time to time, it is the place in which they are regarded as having their permanent home. Many countries abolished the concept of legitimacy altogether in the 1960s and 1970s, for example, New Zealand from 1st January 1970 and Jamaica from 1st November 1976. After the changes in local law, UK-born fathers domiciled in those jurisdictions were able to transmit British citizenship to children born outside of marriage (regardless of the place of birth of the child).

Marriage after the Birth

For births prior to 1st July 2006, if the parents of the child marry after the birth, the child may be treated as born legitimate. This will be the case if by the law of the place in which the natural father was domiciled at the time of the marriage, the marriage operated immediately or subsequently to legitimate the child. Post-birth legitimation by marriage existed in England and Wales from 1926, and in almost all common-law jurisdictions by the 1930s. In many other legal systems the principle is longer-established. For example, legitimation by subsequent marriage has long been part of the law of Scotland, and of South Africa.

Invalid Marriage

Sometimes the parents of the child may have gone through a ceremony or form of marriage that is not recognised in the law of England and Wales. Nevertheless, even if the marriage of the parents was not valid, the children of the marriage may be legitimate. For example, if the father of the child was domiciled in England and Wales at the time of the birth, then if at the time of conception (or the time of marriage if later) at least one of the parties to the marriage believed that it was a valid (according to the law of England and Wales) then the child will be legitimate and able to derive British citizenship through the father. In England and Wales, only marriages taking place in a civil registry office, or in the established church, are legal marriages. A marriage cannot be created by cohabitation, informal exchange of vows or a religious celebration outside the Anglican Church. (Different rules have applied historically in Scotland, where for example a common-law marriage could be contracted prior to 2005.) For marriages outside of the UK, the starting point is whether the marriage is a legal marriage according to the law of the place where it was contracted. However, there are certain situations in which UK law might refuse to recognise a foreign marriage, for example if the marriage was actually polygamous, or the vows were polygamous in form.

Child is under 18

If the child is still under 18, in most cases it is possible for the child to claim British citizenship if an application to the Home Office is made. This is because the Secretary of State has a power at large to register any person who applies whilst they are a minor, as a British citizen. However there is no general power to register an adult as a British citizen (an Act of Parliament would be required). Therefore an application must be made before the child turns 18. The paternity of the natural father may need to be established.

2. Births from 1st July 2006

If a child is born on or after 1st July 2006, then legitimacy no longer features as a concept (except perhaps to determine the nationality status of a parent). Instead, section 50(9A) of the 1981 Act makes new provisions about who is defined to be the father. In general, the father is the husband of the woman that gives birth to the child. However if there is no such person (and no-one falls to be treated as the father under certain Acts dealing with assisted conception) then the man satisfying 'prescribed requirements' as to paternity is the father (and therefore a British citizenship claim might be made through him). The 'prescribed requirements' have the effect that a person named as the father of the child in a birth certificate issued within a year of the birth, will be defined to be the father. However, there is also a general power for the Secretary of State to determine who is the father of the child, having regard to any matters, including DNA tests and court orders. The result of these provisions is that it would be possible for multiple individuals to be the father for the purposes of the Act. A child might have one man named as the father on the birth certificate, and a different man might then prove with DNA evidence that he is the natural father. In this situation, a claim to British citizenship could potentially be made from either man. If as a result of the July 2006 rules a child is unable to derive British citizenship through their natural father (for example because at the time of the birth, the mother was married to a man who was not British), an application to register the child on a discretionary basis will generally be available, to remedy the situation. An application must be made before the child turns 18.

3. Immigration Act 2014

Section 65 of the Immigration Act 2014, which received Royal Assent in May 2014, will allow a much wider class of applicants to claim British citizenship through a natural father. The new law has not yet been brought into force. The next step would be for the UK government to pass regulations bringing section 65 into force. The provisions of the Immigration Act attempt to put the children of a natural father in the same position they would have been in, had their parents been married. As a general rule, where paternity can be established from a UK-born father, it is very likely that the child can now register as a British citizen, even if they have already turned 18. It is not yet known when section 65 will be commenced. However, in the past, nationality law provisions have waited a significant time for commencement. For example, the new provisions relating to legitimacy (section 50(9A) of the 1981 Act) were brought into effect on 1st July 2006, having originally received Royal Assent on 7th November 2002.

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