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Stateless children born in the UK have good news. A recent case has paved the way for stateless children to apply for British Citizenship. Statelessness is such a major concern amongst the international community; the United Nations Refugee Agency has a full section on its website dedicated to ending this scourge.
There is an abundance of international law devoted to preventing statelessness, including The 1954 Convention relating to the Status of Stateless Persons and The 1961 Convention on the Reduction of Statelessness.
It is estimated there are 10 million stateless people in the world, with 600,000 living in Europe. A stateless child is born somewhere in the world every 10 minutes and they face a lifetime of discrimination and being labelled as an outsider.
The recent decision in R (on the application of MK (a child by her litigation friend CAE)) v Secretary of State for the Home Department provides an important clarification of the meaning of statelessness for the purposes of registration for British citizenship.
Table of Contents
What is Statelessness?
Most people acquire the nationality of the country in which they were born. However, in some circumstances, people have to apply for British Citizenship.
The international legal definition of a stateless person is “a person who is not considered as a national by any State under the operation of its law”. You can either be born stateless or become stateless.
The consequences of being stateless are disastrous. Without a country, a stateless person cannot rely on any protection from the government of the country it resides in or the country from which they come from. For example, if a British Citizen is thrown into jail in a hostile foreign country, the British government will normally intervene in some official capacity to ensure the person has a fair trial and legal representation. This will not happen if you are stateless. In addition, a stateless person will have no right to government benefits, healthcare or education. It is as if they do not exist.
What causes Statelessness
There are many causes of statelessness. These include:
- War and/or civil unrest
- Mistakes or gaps in a nation’s immigration laws
- Borders of a country being changed
- A person moving from state to state and not getting the proper documentation required for residency in each country
The most tragic victims of statelessness are children. Due to their status, they are often denied education, healthcare and, as they grow older, have limited prospects when it comes to jobs and their future. But most tragic of all, they are denied a childhood. Often their parents must move around regularly to evade authorities and normal pleasures such as playing on a sports team or making friends are almost impossible.
The United Nations High Commissioner for Refugees is committed to ending child statelessness by 2024. To achieve this, all nations are urged to take the following steps to end statelessness:
- If a child would otherwise be stateless, allow them to gain the nationality of the country in which they were born
- Ensure mothers have the same rights as fathers to pass on their nationality to their children
- End the denial of nationality because of race, religion, or ethnicity
- Adopt universal birth registration
The Case of MK (India) Statelessness EWHC [2017] 1365 (Admin) and Statelessness
The Administrative Court recently made an important ruling on stateless children in the UK. The case of MK (India) Statelessness (also known as R (on the application of MK (a child by her litigation friend CAE)) v Secretary of State for the Home Department) involved a child born in the UK in 2010 to Indian nationals who were overstayers. She had lived in the UK for a period of more than five years and applied to register as a British citizen under the British Nationality Act 1981, Schedule 2, para 3 which states:
(1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely—
(a) that he is and always has been stateless; and
(b) that on the date of the application he was under the age of twenty-two; and
(c) that he was in the United Kingdom or a British overseas territory (no matter which) at the beginning of the period of five years ending with that date and that (subject to paragraph 6) the number of days on which he was absent from both the United Kingdom and the British overseas territories in that period does not exceed 450.
(2) A person entitled to registration under this paragraph—
(a) shall be registered under it as a British citizen if, in the period of five years mentioned in subparagraph (1), the number of days wholly or partly spent by him in the United Kingdom exceeds the number of days wholly or partly spent by him in the British Overseas Territories;
(b) in any other case, shall be registered under it as a British Overseas Territories citizen.
In a Judicial Review challenge to the Secretary of State’s decision to deny the child British Citizenship, the court examined Indian law surrounding nationality and declared the child stateless and therefore, Schedule 2 of the British Nationality Act 1981 applied. The judge also held the fact the child could apply for Indian citizenship did not make any difference.
What the decision in MK (India) Statelessness Means for Other Children
Because the court rejected the argument advanced by the Secretary of State, that a person is stateless only if they do not have the means to acquire a nationality, the door is now open for many children who have been born in the UK to parents who are technically overstayers to apply for British nationality. The law is complex; therefore, it is vital to instruct an experienced immigration lawyer to advise and represent you. We won many cases on this matter and brought successful results for our clients.
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A Y & J Solicitors are specialists in immigration law based in central London. If you would like to have more information, please contact us at contact@ayjsolicitors.com or call +44 20 7404 7933.
Disclaimer: No material/information provided on this website should be construed as legal advice. Readers should seek an appropriate professional advice for their immigration matters.
