Alexander Swain, immigration barrister at Invictus Chambers, considers the High Court’s decision in The Queen on the application of MK (a child by her litigation friend CAE) v SSHD  EWHC 1365 [Admin].
The High Court’s decision in The Queen on the application of MK (a child be her litigation friend CAE) v SSHD (“MK”) is significant in so far as it confirms that, pursuant to paragraph 3 of Schedule 2 of the British Nationality Act 1981 (“the 1981 Act”), a person born in the United Kingdom may be registered as a British citizen if:
• That person has always been stateless
• On the date of the application for registration, the person is under the age of twenty two
• The person has been living in the UK for a period of 5 years at the time of the application for registration. It is noted that a person is deemed to have lived in the UK for 5 years prior to the date of registration if that person has spent no more than 450 days outside the UK within those 5 years
The MK case considered whether a child, born in the UK after 3rd December 2004, to parents of Indian nationality, could be registered as a British citizen under paragraph 3 of the 1981 Act. Contrary to the position of the Secretary of State, the court ruled that a child of Indian parents, in those circumstances could be registered as a British Citizen if the criteria under paragraph 3 of the 1981 Act had been satisfied. Namely, as noted above, that the child had not, at the time of the intended registration for British citizenship, been registered as a citizen of India (thereby satisfying the criteria of statelessness) and had lived in the UK for 5 years at the time of the intended UK registration.
Pursuant to paragraph 36 of the decision, that conclusion was reached on the basis that a child born on or after 3rd December 2004, outside India, to at least one parent of Indian nationality, is not an Indian national unless registration of the child’s birth had taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended.
As confirmed in paragraph 36 of the decision, as the child in question had no other nationality, the child was stateless under paragraph 3 of the 1981 Act and, on condition that the other requirements under paragraph 3 of the 1981 Act had been met, the “Indian” child was entitled to be registered as a British citizen.
The key points therefore were that her (the child’s) birth, on 14th November 2010 in the UK, had not been registered by her parents in accordance with Indian law at the time of the intended registration for UK citizenship and the child had lived in the UK for at least 5 years.
At paragraphs 37 and 42 to 47 (inclusive) of the decision, the court was however keen to stress that the mere fact that the “Indian” child would be entitled to British citizenship did not mean that her parents would necessarily succeed in any subsequent application they made for leave to remain under Article 8 ECHR. As noted in paragraph 37, while the British citizenship of the child would “now immeasurably improve” her parents’ prospects of being allowed to stay in the UK, the child’s British citizenship did not automatically render it in her best interests to stay in the UK given that her parents were of Indian nationality, there was no evidence that the child had any particular contacts to the UK nor that she did not speak the native language of her parents.
Potential effect of the MK decision
While the court failed to consider in any depth the likely success of future applications for leave to remain under Article 8 ECHR brought by Indian parents (with precarious immigration status) to children registered as British under paragraph 3 of the 1981 Act, it is noted that such applications for further leave would primarily fall for consideration under section 117B(6) of the Nationality, Immigration, Act 2002 (as amended).
By way of reminder, pursuant to section 117B(6), it is not in the public interest to remove an applicant(s) under Article 8 if that applicant, despite having developed a private and family life while in the UK precariously or unlawfully, enjoys a parental relationship with a qualifying child and it would not be reasonable to expect that child to leave the UK. Per section 117D, a qualifying child is either a British citizen or a child which has lived in the UK for 7 years.
Despite a child to Indian parents acquiring British citizenship under paragraph 3 of the 1981 Act, a key question for the tribunal on any future application by parents (with precarious immigration status) for leave to remain on the basis of their child’s nationality would therefore remain whether it would be reasonable to expect the (now) British child to leave the UK.
Pursuant to the Court of Appeal’s decision in MA (Pakistan)  EWCA Civ 705 the tribunal, when considering the question of reasonableness under section 117B(6), should consider not only the personal circumstances of the child but those of his or her parents. Thus, the immigration history of the parents and their conduct while in the UK will all be taken into account when deciding whether it is reasonable to expect a child to leave the UK. While it is noted that the court’s decision in MA related to children who had lived in the UK for 7 years, in satisfaction of section 117B(6), it is submitted that the court’s decision would naturally also apply to children of British citizenship.
It is important to stress however that, per paragraph 46 of the court’s decision in MA, “significant weight” must nevertheless be afforded to the fact that a child satisfies section 117B(6) in so far as he or she is a qualifying child. Although the court in MA only considered children who had lived in the UK for 7 years, it is submitted, as above, that significant weight would naturally also be afforded to a child’s British citizenship when assessing reasonableness under section 117B(6).
Similarly, the court’s decision in ZH Tanzania v SSHD  UKSC 4 is relevant when considering the likelihood of an Indian family being allowed to remain in the UK on the basis of their child’s British nationality. At paragraphs 30 to 33 (inclusive) of Lady Hale’s judgment, it was determined that while the British nationality of a child to parents facing removal from the UK should not be a “trump card”, the nationality of a British child is “particularly important” when assessing whether it would be in the child’s best interests to leave the UK.
The likelihood of an Indian family being allowed to remain in the UK on the basis that their child has gained British citizenship under section 3 of the 1981 Act post MK will undoubtedly also be strengthened by the Home Office’s own published guidance which confirms their general policy not to remove foreign parents from the UK when to do so would force their British child to leave the UK.
That policy is set out in paragraph 11.2.3 of policy guidance document Immigration Directorate Instruction – Family Migration – Appendix FM, Section 1.0(B) “Family Life as a Partner or Parent and Private Life, 10 year Routes and states that:
Save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This reflects the European Court of Justice Judgment in Zambrano
Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer.
In such cases it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship.
It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.
The circumstances envisaged could cover amongst others:
• criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
• a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.
In considering whether refusal may be appropriate the decision maker must consider the impact on the child of any separation. If the decision maker is minded to refuse, in circumstances where separation would be the result, this decision should normally be discussed with a senior caseworker and, where appropriate, advice may be sought from the Office of the Children’s Champion on the implications for the welfare of the child, in order to inform the decision.
As noted by the Upper Tribunal in in SF and others (Guidance, post-2014 Act)  UKUT 120 (IAC), a child and family should, as a general rule, be allowed to remain in the UK if the child is a British national and the immigrant family have no criminal record in accordance with 11.2.3 of the Home Office’s published policy.
The MK decision confirms that a child (to Indian parents) living in the UK is eligible for British citizenship if he or she is born after 3rd December 2004, his or her birth has not been registered in accordance with Indian law and he or she has lived in the UK for at least 5 years.
An application by the child’s parents (with precarious immigration status) for leave to remain in the UK under Article 8 ECHR will not however automatically succeed on the basis that their child has now gained British citizenship. Should an application be refused, a tribunal on appeal will still have to consider whether it is reasonable to expect the child to live with his or her parents outside the UK under section 117B(6). The extent of the child’s social, cultural and linguistic ties to the UK, as noted by the court in the MK decision and the immigration history of the parents per MA (Pakistan), will be relevant when assessing reasonableness under section 117B(6)
Any application by an Indian family with a British child for further leave to remain under Article 8 will however be strengthened given that the Home Office’s own published policy currently states that it would generally not be reasonable, absent of any criminal conduct by the immigrant family, to expect a British child to leave the UK in order to continue living with his or her parents. The decisions in ZH Tanzania and MK meanwhile highlight the “significant weight” and “particular importance” to be attached to the nationality of a child when considering whether removal of an immigrant family is proportionate under Article 8.
For those reasons therefore, an application by an Indian family for further leave to remain in the UK on the basis of their child’s British nationality would now be “immeasurably improved” as noted by the court in MK. That application would not automatically succeed on appeal however as it would still be subject to analysis under section 117B(6) and the fact specific question of whether it is be reasonable to expect the qualifying child to live outside the UK.