High Court Considers Discretionary Registration Of Children As British Citizens

1. Introduction

Understanding Section 3(1) of the British Nationality Act 1981 (BNA 1981) can be complex, as it grants the Secretary of State broad discretion to register a child as a British citizen if deemed appropriate. Recent guidance outlines various circumstances that might warrant registration of children as British citizens, but its application can still be uncertain.

This article reviews the recent High Court decision in R (OBN) v The Secretary of State for the Home Department [2024] EWHC 1833 (Admin), which clarifies how this discretion to register as child as a British citizen is exercised. We'll examine the case details, the arguments presented, and what the ruling means for future applications for registration of children as British citizens, offering key insights into the practical application of the law.

2. Discretionary Powers Under Section 3(1) of the BNA 1981

As discussed in our previous article Updated Guidance on Registration of Children as British Citizens by Discretion, Section 3(1) of the British Nationality Act 1981 (BNA) affords the Secretary of State (SSHD) broad discretion to register a child as a British citizen in circumstances where she 'thinks fit'. The manner in which the caseworkers should exercise this discretion is set out in the Home Office policy guidance.

As set out in the registration of children as British citizens guidance, the considerations that the caseworker might take into account are rather extensive. Particular examples of circumstances which are likely to warrant an exercise of discretion are addressed, including (but not limited to) children adopted by British citizens, children with British parents in service, children born to surrogate parents, and children who have lived in the UK for more than 10 years. However, the guidance also outlines the relevant considerations for other applications under Section 3(1), where a child does not fall into one of the listed circumstances, but when it still may be appropriate to exercise discretion and register a child as a British citizen.

In respect of the 'other' applications under Section 3(1), the Guidance on registration of children as British citizens states that:

". . . In all cases, the application must be considered on its individual merits taking into account the following considerations when deciding whether or not to exercise discretion.

The expectation is that registration should normally only take place where an applicant satisfies the criteria set out elsewhere in this guidance. However, under section 3(1) of the BNA 1981 the Home Secretary has discretion to register a person under the age of 18 at the date of application where they see fit to do so."

In considering whether it is appropriate to register a child on this basis, the caseworker should, according to the guidance, consider the child's future intentions, the child's parents' circumstances, the child's residence in the UK, the child's immigration status and any compelling or compassionate circumstances raised as part of the application.

3. Recent High Court Case: R (OBN) v The Secretary of State for the Home Department

In this article, we will consider the above provisions in light of the recent decision of the High Court in R (OBN (a minor) by his litigation friend ASM) v The Secretary of State for the Home Department [2024] EWHC 1833 (Admin). The claimant was a child who was 10 years of age at the date of hearing. While he was a Bangladeshi national and had been born in Bangladesh, he had lived in the UK since he was 6 years of age. His father had become a British citizen and had been issued with a British passport in 2021; and the claimant had subsequently travelled to the UK with his mother to join him.

The claimant lived with his family in London, including his sister who was a British citizen. He attended school in the UK; and his father was in full-time employment. It would appear, then, that the child's future intentions and residence in the UK would be factors that would weigh in his favour (the guidance states that a child under 13 does not require extended residence if they have met the future intentions requirement and it is otherwise considered appropriate to register them). However, the claimant's application was refused on the basis that neither he or his mother had indefinite leave to remain in the UK at the date of application. The refusal letter also stated that there were not sufficient grounds to exercise direction to register him as a British citizen, and that his best interests had been taken into account.

The Claimant's Submissions on Registration of Children as British Citizens

The main submission advanced on behalf of the claimant was that the discretion under section 3(1) of the BNA is broad, and does not require the claimant or his mother to be settled in the UK. The immigration status of the claimant and his mother are merely factors that may be considered in the guidance and had been overemphasised in the decision. It was also contended that the refusal letter failed to demonstrate that the duty to take into account the claimant's best interests under s.55 of the Borders, Citizenship and Immigration Act 2009 had not been discharged. The refusal letter had simply referred to a URL relating to this duty; and it was submitted that referencing a URL was insufficient to discharge the duty of the Secretary of State.

It was also argued on behalf of the claimant that the SSHD failed to take into account other factors in the guidance, including the child's future intentions, the child's parents' broader circumstances, residence in the UK and any compelling and compassionate circumstances raised as part of the application. It was argued that consideration of these factors was not apparent from the refusal letter.

It was further submitted that the refusal of citizenship engaged Article 8 of the ECHR, and that the refusal letter did not provide sufficient reasons for the decision.

The Secretary of State's Defence

In response, it was submitted on behalf of the SSHD that the refusal letter correctly characterised the statutory power under section 3(1) of the BNA. It was argued that the criteria identified in the guidance are rational and reasonable, as was the decision to treat them as 'normally' needing to be satisfied. The SSHD was entitled to select the criteria and identify those which were considered most relevant, and to give them weight as considered appropriate. It was argued that there was no failure to comply with a duty in respect of the claimant's best interests, and there was nothing unreasonable about the assessment of the claimant's best interests. Attention was drawn to the consideration in the refusal letter that "I do not consider that your best interests require a different decision because you are able to continue to enjoy family/ private life without the need to be a British citizen", on the basis that this showed substantive consideration of the claimant's interests.

It was also argued that Article 8 of the ECHR was not engaged in this particular case, as whilst British citizenship confers substantial advantages, refusal to exercise discretion in the claimant's favour did not interfere with any of his interests that were protected by Article 8 ECHR. In particular, it was argued that the claimant could continue to live with his family in London and attend school without obtaining British citizenship.

4. High Court's Findings on Registration of Children as British Citizens

The Claimant's arguments were not successful. It was considered that the application of the guidance was correct, and that the refusal letter did not indicate that the SSHD had too rigidly insisted on the criteria set out in the guidance. Instead, the refusal letter showed that the matters set out in the guidance had been considered and that the SSHD had, in the view of the court, discharged the duty under s.55 of the BCIA 2009 to consider the claimant's best interests.

It was not accepted that Article 8 was engaged in this case. The High Court accepted the SSHD's submission that whilst citizenship confers substantial advantages, the refusal to exercise discretion to grant citizenship did not interfere with the claimant's interests which are protected by Article 8 in this case.

Finally, it was considered that the reasons leading to the refusal to grant the claimant citizenship were adequately, if barely, set out. It was concluded that there was sufficient information in the refusal letter for those acting on behalf of the claimant to understand why he did not satisfy the criteria of the guidance; and why after the consideration of his best interests, discretion had not been exercised to grant him British citizenship.

5. Analysis: Registration of Children as British Citizens

The fact that the 'barely stated' reasons given by the SSHD in the refusal letter in this case were considered sufficient confirms the broad nature of the discretion to register a child as a British citizen afforded to the SSHD by Section 3(1) of the BNA. This is somewhat unhelpful for applicants, who will face inherent uncertainty regarding the weight that will be given to the various factors set out within the guidance. Applicants should be aware that fulfilling some criteria in the guidance (for example, the future intentions requirement, as in this case) may not be enough in the SSHD's view of a particular case. However, there remains scope for factors outside of those listed in the guidance, relating to an applicant's best interests in particular, to be advanced and considered and these factors must be considered on their merits in each individual case.

As a final point, it is important to note that the failure of the claimant to exercise his right of review prior to submitting a Pre-Action Protocol letter allowed the SSHD to argue that the judicial review claim should have been refused as the claimant had not taken advantage of an adequate alternative remedy. In this case, the High Court accepted that the outcome of the case would have been the same even if the right to a review had been exercised. The High Court therefore did not refuse the claim on the grounds he had not done so, but considered that this right of review should have been exercised. This points to the importance of applicants exercising any right of review prior to further challenge, to avoid the risk of failure on this basis if they are challenging such a decision.

6. Contact our Immigration Barristers

For expert advice and assistance regarding an application for discretionary registration of a child as a British citizen, or to learn more about discretionary registration of children as British citizens, contact our immigration lawyers in London on 0203 617 9173 or complete our enquiry form.

7. Frequently Asked Questions

What is Section 3(1) of the British Nationality Act 1981?

Section 3(1) of the BNA 1981 allows the Secretary of State to register a child as a British citizen if deemed appropriate, granting broad discretionary powers.

What factors are considered under Section 3(1) when deciding on a child's citizenship application?

Factors include the child's future intentions, parents' circumstances, residence in the UK, immigration status, and any compelling or compassionate circumstances.

What was the key issue in the case of R (OBN) v The Secretary of State for the Home Department [2024]?

The case involved a child who had lived in the UK since age 6 and was refused British citizenship. The refusal was based on the lack of indefinite leave to remain for the child and his mother.

Why was the child's application for British citizenship refused in the R (OBN) case?

The application was refused because neither the child nor his mother had indefinite leave to remain in the UK, and the refusal letter stated there were not enough grounds to exercise discretion.

What were the main arguments made by the claimant in the R (OBN) case?

The claimant argued that the discretion under Section 3(1) is broad and does not require settlement status. They also contended that the best interests of the child under s.55 of the BCIA 2009 were not adequately considered.

How did the Secretary of State defend the refusal in the R (OBN) case?

The Secretary of State argued that the refusal letter was consistent with the statutory powers and guidance, that the best interests of the child were considered, and that Article 8 of the ECHR was not engaged.

What was the High Court's finding in the R (OBN) case?

The High Court found that the guidance was correctly applied, the refusal letter adequately considered the factors, and Article 8 of the ECHR was not engaged. The claim was not successful.

What are the implications of the High Court's decision for future applications?

The decision confirms the broad discretion of the Secretary of State under Section 3(1) and highlights that fulfilling some criteria may not be sufficient. Each case must be considered on its individual merits.

Why is it important to exercise the right of review before challenging a decision?

Exercising the right of review can prevent challenges from being dismissed on procedural grounds. In the R (OBN) case, failing to review prior to legal action was noted, although it did not change the outcome.

How can I get advice on an application for discretionary registration of a child as a British citizen?

Contact our immigration barristers in London at 0203 617 9173 or complete our enquiry form for expert advice and assistance.

8. Glossary

British Nationality Act 1981 (BNA 1981): A UK law that outlines the rules for acquiring, losing, and regaining British citizenship. Section 3(1) grants the Secretary of State the power to register a child as a British citizen at their discretion.

Section 3(1): A provision within the British Nationality Act 1981 that allows the Secretary of State to register a child as a British citizen if deemed appropriate, even if the child does not meet the usual criteria.

Discretionary Registration: The process by which the Secretary of State has the authority to grant British citizenship to a child based on individual merits, beyond standard eligibility requirements.

Home Office Policy Guidance: Official guidelines issued by the Home Office that detail how the Secretary of State's discretionary powers under Section 3(1) should be exercised, including factors to consider in each application.

Indefinite Leave to Remain (ILR): A form of permanent residency in the UK that allows individuals to stay in the country without any time restrictions. It is often required for certain immigration applications.

S.55 of the Borders, Citizenship and Immigration Act 2009 (BCIA 2009): A legal provision requiring the Secretary of State to ensure that the best interests of children are a primary consideration in immigration decisions.

Article 8 of the European Convention on Human Rights (ECHR): A human rights provision that protects an individual's right to respect for their private and family life. It may be invoked in cases where citizenship decisions affect family life.

Judicial Review: A legal process by which courts review the lawfulness of a decision or action taken by a public authority, such as the Secretary of State's refusal to grant citizenship.

Claimant: The individual or party who brings a case before a court. In this context, it refers to the child in the R (OBN) case seeking British citizenship.

Pre-Action Protocol: A procedural step required before initiating certain legal actions, including judicial reviews. It involves notifying the opposing party and attempting to resolve the issue outside of court.

Compelling or Compassionate Circumstances: Exceptional factors that may influence the decision to grant discretionary citizenship, including personal, family, or humanitarian reasons that justify special consideration.

Statutory Power: Authority granted by legislation that allows a public official or body to make decisions or take actions within the framework established by the law.

Litigation Friend: A person who represents a claimant in legal proceedings when the claimant is a minor or otherwise unable to represent themselves effectively.

Merits of the Case: The substantive considerations and facts of a legal case, which are evaluated to determine the fairness and justness of a decision.

Refusal Letter: A written document issued by the Secretary of State or another authority explaining the reasons for denying a request or application, such as for citizenship.

9. Additional Resources

UK Government – British Nationality Act 1981

Official UK government page providing the full text of the British Nationality Act 1981.

UK Government – Immigration Rules

The latest UK Immigration Rules, including guidance on various visa and citizenship applications.

Borders, Citizenship and Immigration Act 2009

Full text of the Borders, Citizenship and Immigration Act 2009, including Section 55 related to the best interests of children.

European Court of Human Rights – Article 8 ECHR

Information on Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.

UK Government – Judicial Review Guide

Guidance on the judicial review process, including how to challenge decisions made by public authorities.

Children's Commissioner for England – Rights of Children in Immigration

Information on children's rights in immigration and citizenship processes, highlighting issues related to their best interests.