Introduction

Seeking British citizenship for a child without status, who is subject to family public law proceedings, involves a process in which confusion and misunderstanding easily arises. In such proceedings, the issue of securing support for a grant of British citizenship by the Secretary of State for the Home Department may at large and may be muddled up with questions concerning the issue of the child’s immigration status and a  grant of leave to remain or the issue of a child’s need for a passport or other travel document.

It may well be in a child’s best interests to secure a grant of British citizenship as a durable solution to their irregular status, not least where their long-term future lies in the UK. However, the goal needs to be identified and articulated with precision and particularity. Further, the limited role of the Family Court needs to be understood.

Part of the problem leading to confusion and misunderstanding may lie in the limited help given in the Family Procedure Rules (FPR) Practice Direction 12A and its Public Law Outline. PD12A may benefit from revision to make explicit the nature of the material held by the local authority concerned that will assist the Court. The case of BD v London Borough of Barnet [2024] EWFC 159 illustrates the problem.

What to seek? Nationality and immigration solutions compared

In BD the Family Court was concerned to ensure that, in future, the immigration status of a UK-born child in public law proceedings was clarified at the earliest opportunity and that any issues with respect to that child’s immigration status were dealt with before a final order was made. In that case the Applicant was the child’s Special Guardian. Within care proceedings under Part IV of the Children Act 1989 the Applicant sought:

“…an Order of the Court: 1) with a recital requesting the Secretary of State of Home Affairs (sic) grants Y (“Y”) British Citizenship under the British Nationality Act 1981 (or an emergency travel document on an interim basis, if this will likely take a long period of time, outside the immigration rules); 2) permitting the Applicant to disclose this Order and material documents from the care proceedings to the HM Home Office and the HM Passport Office; and 3) asserting no order as to costs.”

A grant of British citizenship is an act of the Secretary of State under powers conferred by Part I of the British Nationality Act 1981 (1981 Act). That a request for such a grant of citizenship might be included in a recital to an Order of the Family Court did not want for ambition. The recital to and disclosure order in an earlier Special Guardianship Order had focused on an immigration (not nationality) solution, though still with a buttressing request for a travel document:

“UPON the court noting that the Local Authority will be supporting financially the regularisation of Y’s immigration status and including an application for a passport (sic).”

…

“5. Permission to the Local Authority and [the applicant] to share a redacted form of this order with immigrations solicitors (sic) and Home Office in order to regularise Y’s immigration status and / or passport application.”

That earlier focus on an immigration solution was reflected in a social worker’s statement prepared for an Issues Resolution Hearing (IRH) within the proceedings, which stated:

“12. Y does not currently have any immigration status in the UK, so this is something that needs to be established as soon as possible to ensure her identity and stability. The local authority does agree to fund Y’s immigration application to ensure that she has status in the UK like her aunt.”

A grant of leave to remain, be it limited or indefinite as regards the period of time for which the child could remain is an immigration solution under the Immigration Act 1971. The child would still be a person subject to immigration control were leave to be granted. By contrast, a grant of British citizenship is full enfranchisement as a citizen with the right of abode in the UK as a person who belongs here. The two are not the same. Both provide a solution to irregular status in the UK. However, whether one or the other is to be sought on a child’s behalf requires careful consideration of the particular child’s circumstances. By way of example, where the grant of a British citizenship would lead to loss of home state nationality, as the home state is intolerant of multiple nationality for its nationals, that may be a reason to seek an immigration solution and a grant of leave to remain instead or British citizenship.

The problems and proposed solutions in BD

In BD, with the understandable motivation of securing the child’s future and best interests, interested parties appear to muddle up the question of an immigration application, with that of a British citizenship application, and with that of a UK passport application (something that could only have been obtained if the child had automatically acquired British citizenship at birth or she had been granted British citizenship). At least in part this was so as the child appears to have had multiple problems requiring a solution: a lack of regular status in the UK; a lack any nationality (be it of a parent’s home state (Turkey), birth state (the UK), or a third state); and a lack of a passport or travel document (to enable a visit to an ill relative in Turkey).

As the case of BD progressed the application was refined to focus on seeking a disclosure order so that the Secretary of State for the Home Department could see family proceedings materials in a prospective application for registration at discretion of the child as a British citizen under s 3(1) of the 1981 Act. The latter provides that if the Secretary of State thinks fit, she may cause a minor applicant to be so registered. It is backed up by detailed guidance found in Registration as a British citizen: children.

In passing, it should be noted that at the time the Court gave judgment the child was four years old. However, when she reached the age of five years, had she been born and remained stateless at that point, consideration would need to be given then to an application for registration as a British citizen by entitlement under paragraph 3A of Schedule 2 to the 1981 Act.

The roles of the Family Court and the Secretary of State for the Home Department  

In giving judgment in BD MacDonald J made an order to permit the Applicant to disclose to the Secretary of State for the Home Department and the Passport Office the necessary materials. However, he refused to include a recital to the order requesting the Secretary of State to grant the child British citizenship or a recital summarising the intention of the court at the conclusion of the earlier care proceedings. In so doing he stated that it has long been established that the courts should not make orders that impinge upon or prevent the exercise by the Secretary of State for the Home Department of powers conferred upon him by Parliament.

Among the cases cited was that of Re Mohamed Arif (An Infant); Nirbai Singh (An Infant) [1968] Ch 643, where Lord Denning set out the relationship between wardship (being a sort of antecedent of modern family care proceedings) and the role of immigration officers under the then Commonwealth Immigrants Act 1962 in controlling the arrival of minors in the UK.  The principle applied in that case was that the court will not exercise its jurisdiction so as to interfere with the statutory machinery set up by Parliament. 

The exercise of restraint by the court was further considered in R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293, where the Court of Appeal recognised that an order made by, and any views expressed by, the court in proceedings under the wardship jurisdiction or under the Children Act 1989 may be something to which the Secretary of State should have regard in deciding whether to exercise that power. However, Hoffman LJ (as he then was) stated that in cases where, apart from immigration questions, there is no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State:

“…the use of the court’s jurisdiction merely to attempt to influence the Secretary of State by obtaining findings of fact or expressions of opinion on matters which are for his decision is an abuse of process.”

In the instant case of BD, Macdonald J in the application of the principle of the separation of powers stated that “is no part of this court’s function to interfere with [the Secretary of State’s] decision making process and it would be constitutionally improper for the court to do so.”

It should be noted though that none of those statements of principle impinge on the child’s application for registration as a British citizen containing representations, information and evidence arising out of the family proceedings (and disclosed with necessary permission) that bear on the Secretary of State’s task of deciding whether to grant British citizenship. Indeed, such things may be highly material.

The way ahead – Nationality and Immigration issues in Family Proceedings

In BD MacDonald J echoed earlier pleas for a child’s immigration status issues to be raised at the outset of care proceedings, so as to enable evidence to be obtained in good time prior to the making of final order. He noted that a child’s immigration status may bear the permanence provisions of the care plan that the court is required to consider under s 31(3A)(a) of the Children Act 1989 and drew attention to what is mandated by the Public Law Outline in FPR PD12A.

However, in FPR PD12A, the Pre-Proceedings Checklist in the Public Law Outline is thin gruel as regards nationality and immigration documents, seeking (as material) only local authority held “Previous court orders including foreign orders and judgments/reasons” and “Single, joint or inter-agency materials (e.g., health and education/Home Office and Immigration Tribunal documents)”. It may assist the Family Court in its task if there was a greater degree of particularity so as to include local authority held materials bearing on (i) the child’s UK immigration status including from the Home Office and the Immigration Tribunals and including material as to the basis upon which leave to remain has or may be acquired, (ii) whether the child has or may acquire the nationality/-ies of one or both of her parents, (iii) whether the child has or may acquire British citizenship on application and if so on what basis, and (iv) whether the child has or may acquire a passport or other travel document and if so on what basis.