Whatever the reason for the move, the increase in Britons abroad has led to a number of people asking whether or not children who are born abroad are British. This is an important question as if a child is not British, the child will not have an automatic right to return to the UK in the future. The question of whether or not someone born outside the UK is a British national is not always an easy one to answer. The Home Office website contains a useful tool: which can be used, but this is only a starting point and will often give the answer that someone "may" be British.
When I receive enquiries of this nature, my starting point is always to consider the British nationality of the parents. You might wonder why - surely if someone has a British passport, then they are British? However, this is only half the story. There are, in fact, two types of British nationals - those who are British by descent and those who are British otherwise than by descent.
The two 'types' of British nationals
Children born in the UK, with British parents, will automatically be "British otherwise than by descent". Someone who acquires British citizenship in this way can pass British citizenship on to his or her children regardless of where their children are born.
Children born outside the UK, with British parents, are usually considered "British by descent". If someone is British by descent, they cannot pass British citizenship onto their children who are born outside the UK. Instead their children will not be automatically British but may be able to register as British nationals if they meet certain requirements.
The situation is made more complicated by the fact that British nationality laws have undergone several changes over the years. The effect of this is that someone's date of birth can affect their claim to British citizenship, particularly where their parents were unmarried at the time of the child's birth. If a child was born before 1 July 2006 and their parents were unmarried, then the child could only become a British national if their mother was a British citizen. From 1 July 2006 onwards this is not an issue, and there is now a route whereby children born before 1 July 2006 with an unmarried British father can register as a British national.
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Case study
The complexity in this area is best demonstrated by a case study (followed by a diagram below).
Mr and Mrs Smith were both born in the UK to British parents. They married in 1980 and had a son, John in 1983 while they were living in Edinburgh. In 1984 the Smith family moved to the USA and in 1986 they had a daughter, Jane.
Both Mr and Mrs Smith were British nationals otherwise than by descent, and as John was born in the UK he would acquire this status as well. As Jane was born outside the UK she is British by descent, but is still automatically British.
The family continued to live in the USA and in 2003 John had a daughter, Anne, with his long-term girlfriend, who is an American national. In 2007 the couple had another daughter, Jill. As Anne was born before 2006 and her parents were unmarried at the time of her birth she is not automatically British as her citizenship flows from her mother. As Jill was born after 1 July 2006 she is automatically British despite the fact she was born outside the UK; she will be British by descent as her father is British otherwise than by descent.
Jane also continued to live in the USA and in 2007 she married Mark, an American national. They had a son, Jack, in 2009. In this scenario Jack would not be British as his mother was British by descent and instead he would need to check if he is eligible to register as a British national.
Summary
Whether or not a child born abroad is a British national is not an easy question and depends on a number of circumstances. It is quite possible for close family members to have different nationalities depending on their individual circumstances.
Our team are experts at cutting through the confusion and providing clear advice on whether someone is a British national or not. We can help with passport applications for those who are automatically British, and we can assist with registering non-British children as British citizens. For further information please contact Stuart McWilliams or Averil Trimble.
Our Immigration team has been shortlisted (again!) for the 2015 EMMA awards - both for Immigration Provider of the Year and also, an individual award for Stuart McWilliams, Global Mobility Rising Star of the Year. Congratulations to our well deserving team, and we look forward to sharing the results of the Awards ceremony with you in November!
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