Not all British Citizens can pass on their citizenship
There are 6 types of citizenship under the 1981 British Nationality Act
There are a number of ways a person can become a British Citizen
· Citizenship by birth (jus soli) - a British Citizen 'Otherwise than by Descent’
· Citizenship by naturalization (long-term UK residence or marriage)
· Citizenship by adoption
· Citizenship by registration
· Citizenship from a qualifying overseas territory or Crown service
· Citizenship by descent (jus sanguinis) - a British Citizen 'by Descent’
British Citizens Otherwise than by Descent (most people)
The majority of British Citizens born in the UK will automatically become what is known as a British Citizen otherwise by descent, meaning one of your parents will have also been a British Citizen and you will have effectively 'inherited' your rights to British Citizenship.
This enables British Citizens otherwise by descent to pass on their British citizenship to their children, even if their child is born overseas.
British Citizens by Naturalisation, Adoption and Registration
There is a section of British Citizens who will not necessarily have been born in the UK, but will have 'become' a British Citizen, usually by marriage, adoption or more likely, will have lived and settled in the UK for a long period of time and satisfied the requirements to apply for British Citizenship.
Once Citizenship has been given under these routes, they are effectively deemed British Citizens otherwise by descent and can pass on their British Citizenship to their children, as if they'd always been born in the UK.
But the rules are different for British Citizens By Descent (British Citizens Born Overseas to a UK parent)
If a child is born overseas and one parent is a British Citizen otherwise by descent, then that child is eligible to apply for British Citizenship.
However, the British Citizenship they are given does not allow that child to pass on their British Citizenship should they have children.
The law effectively creates a first generation limit on passing British Citizenship should you be born overseas.
All types of British Citizenship allow their children to automatically become British Citizens provided one of their parents is a British Citizen also whether that child is born in the UK or not.
Whereas a foreign citizen, who need not have been born in the UK, and subsequently naturalises as a British Citizen, is able to can pass on their British Citizenship. This is because naturalisation grants the same legal rights and status as those who were born British Citizens Otherwise than by Descent.
Passing on British Citizenship by Descent is prejudicial, largely to children returning from overseas that would have otherwise qualified under long term residence under a naturalisation process.
Furthermore, per the Home Office Guidance, is it NOT possible for people holding British Citizenship by Descent to “upgrade” their status to British Citizenship otherwise than by descent.[1]
[1] Home Office Guidance - Guide MN1 and Guide NS
But what happens if British Citizens by Descent live in the UK?
The law does allow a provision for British Citizens by Descent, who are living in the UK, to register their child as a British Citizen, provided that the parent lives at least three years in the UK without spending more than 270 days outside the UK, to register a child as a British Citizen.
But the failure of the 1981 Act presumes the child will always remain outside the UK.
What happens if they return to the UK?
What happens if they leave the UK?
What happens if they have spent the majority of their childhood in the UK?
Why is such a restriction in place in early adulthood limiting a British Citizens future child's rights to British Citizenship?
And the law does not allow British Citizens by descent to 'upgrade' their citizenship to become British Citizens otherwise by descent, which other citizenship routes effectively offer.
Why can't a British Citizen born overseas be allowed to upgrade their citizenship provided they have demonstrated connectivity to the UK?
When the law written in 1981, it did not reflect today's reality of international mobility and social change, especially post Brexit. While recent additions to the 1981 Act justifiably allows certain non-UK citizens who have not been born in the UK to register automatically (such as the British Nationality (Irish Citizens) Act 2024), there still remains a difference in naturalised British Citizens and British Citizens by descent in regard to jus sanguinis.
Our blog highlights some of the prejudices mentioned in the Hansard at the time. https://britishcitizenbydescent.co.uk/blog/f/parliament%E2%80%99s-debate-of-the-bna-1981-reveals-its-flaws
It was highlighted that citizenship would be limiting descent by residence, of mixing citizenship with immigration control, was feudal, and creates a new and unnecessary category of what are literally second-class British citizens.
Weak statutory provisions
S3 of the Act does allow a provision for British Citizens by Descent, who are living in the UK, to register their child as a British Citizen, provided that the parent lives at least three years in the UK without spending more than 270 days outside the UK, to register a child as a British Citizen. The failure of the 1981 Act presumes the child will always remain outside the UK. But did not take into account the fact that any residence abroad maybe relatively short.
Additionally, the s.1(4) of the Act also allows children who were born in the UK, but to non-British Citizens, the children’s themselves not being British Citizens, to register as British Citizen’s Otherwise by Descent, through a period of time[1] before they are 18 years old.
The Act discriminates in this regard and does not allow returning British Citizens by Descent to effectively be ‘re-naturalised’ and satisfy the right to pass on their citizenship and is at odds with those who have obtained citizenship Otherwise than by Descent under the routes for adoption, registration or naturalisation.
Why can't a British Citizen born overseas be allowed to upgrade their citizenship - or better still - remove this feudal, outdated and prejudicial element of the BNA81.
[1] More recently as 2023, the ‘good character’ requirement for certain applications to register as a British citizen was removed under the British Nationality Act (1981) (Remedial) Order 2019/1164 following two separate UK court judgements that found that imposing the good character requirement in applications was discriminatory and contrary to the European Convention on Human Rights (ECHR)
Recent changes to the British Nationality Act:
The recent British Nationality (Regularisation of Past Practice) Act 2023 made provision for immigration restrictions to be disregarded for the purposes of the British Nationality Act 1981 in historical cases in which such restrictions were in practice disregarded following the case of R(Roehrig) v SSHD whereby the Government issued the 2023 Act. This has a retrospective effect so that people born in the UK to EU citizen parents between 1 January 1983 and 1 October 2000 (and children born to these people) will automatically be considered British Citizens.
More recently, Irish Citizens who have resided in the UK for at least 5 years can apply under the British Nationality (Irish Citizens) Act 2024, which added a new registration route under a new addition of section 4AA to the British Nationality Act 1981. They will obtain British Citizenship by Registration and will be able to pass on their British Citizenship under this new section of the Act.
Why can't a British Citizen born overseas do the same?
Other countries changed their rules
Canada is also introducing similar legislation, that would extend citizenship by descent beyond the first generation in a way that is inclusive and protects the value of Canadian Citizenship.
https://britishcitizenbydescent.co.uk/blog/f/canada-removes-first-generational-limit-on-citizenship
But not all British Citizens, it seems, are born equal
It is a totally unacceptable position to place time limits after a British Citizen's 18th birthday as well as to restrict their residency in early adulthood (such as taking a gap year) for British Citizens by Descent who have will have spent most or a significant proportion of their childhood in the UK that other citizenship claims would have afforded.
This pushes British Citizens by Descent into adulthood to make choices and restrictions around their children’s future.
And potentially their child being unnecessarily stateless.