There is a considerable number of undocumented Zimbabwean nationals who were born in Zimbabwe, and following arrival in the UK, now have children of their own born here, aged under 18years. Some of these children may not yet have accrued the necessary continuous residence in the UK required to enable them to place reliance upon the 7year Rule as a basis of application for leave to remain. In such circumstances, fulfilment of the 10years continuous residence in the UK required to enable an application for registration as a British citizen would accordingly be inapplicable.
On the basis of the principles flowing from MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1365 (Admin, a case which involved a UK born child of overstaying Indian parents, is it possible to similarly argue that a UK born child falling within the above scenario is stateless as having no nationality and that ability to acquire a nationality is irrelevant? Can it be put forward in an application for registration as a British citizen that in such circumstances, the child has no other nationality, and is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and is entitled to registration as a British citizen? Where the child’s birth has not been registered in accordance with Zimbabwean law and procedure, is that child entitled to British Citizenship on the basis that he or she is not Zimbabwean? Can it be argued that the child was or is ‘stateless’ at any time when he/she did or does not in fact have Zimbabwean nationality?
THE BENEFITS OF OBTAINING REGISTRATION RELYING ON MK
Children who are born in the UK and are stateless can rely upon the MK judgement so as to seek to obtain registration as British citizens.
Undocumented parents of such children can subsequently apply for leave to remain having regard to Article 8 of the ECHR on the basis of family life with a British child. Alternatively, where appropriate, a Zambrano application can be relied upon so as to obtain a derivative right of residence in the UK.
RELEVANT UK LAW
A person is stateless if he or she is not regarded by the authorities of any country as a citizen or national of that country.
An individual who was born in the UK or a British overseas territory can register as a British citizen under paragraph 3 of schedule 2 of British Nationality Act 1981 if:
- they were born on or after 1 January 198
- they were born stateless
- they have remained stateless
- on the date of application, they are under the age of 22
- they were in the UK or a British overseas territory at the beginning of the period of 5 years ending with the date of application- in that 5 year period: -they were not absent from both the UK and the British overseas territories for more than 450 days
An individual who meets these requirements is entitled to register as:
- a British citizen, if the number of days spent in the UK in the 5 year period is more than the number of days spent in the British overseas territories
- a British overseas territories citizen (BOTC) in any other case.
The applicant must have been in the UK or a British overseas territory at the beginning of the period of 5 years ending with the date of application. The date of application is the date it is received by the appropriate British Government representative – e.g. if the application were to be received on 30 September 2015, the 5 year qualifying period would be from 1 October 2010 to 30 September 2015.
CASE OF MK
Facts in summary:
The issue, was whether the Claimant child (“C”) who was born in the United Kingdom on 14 November 2010 to overstayer parents of Indian nationality residing in the UK, ‘is and always has been stateless’ for the purposes of paragraph 3 of Schedule 2 to the 1981 Act. That depended on the meaning of ‘stateless’ in the Act, which is a matter of law. It also depended on the question whether C is (or ever has been) a national of India. That in turn depended wholly or largely on Indian law, which was a matter of fact and needed to be proved by evidence.
On 8 March 2016, C submitted an application for registration as a British Citizen under paragraph 3 of Schedule 2 to the 1981 Act. On 18 May 2016 the Secretary of State refused the application. Judicial review proceedings were begun on 17 August 2016.
Relevant Indian Law:
As regards the relevant Indian law, the Court found as follows:
- Indian citizenship is acquired by descent, and a child born outside India after 1992 is a citizen of India by descent if either of the child’s parents was at the time of his birth a citizen of India other than by descent.
- If, however, the birth was outside India on or after 3 December 2004 (the date of commencement of the Citizenship (Amendment) Act 2003 (India)) the child is not a citizen unless the birth is registered at an Indian consulate ‘in such form and in such manner as may be prescribed’.
- Additionally, if the registration is after the child’s first birthday it needs ‘the permission of the Central Government’. In either case the parents have to declare, also ‘in such form and in such manner as may be prescribed’, that the child does not hold the passport of any other country. There is no suggestion that citizenship is granted from the date of registration: it is obtained by the birth, provided that the birth is registered.
- Guidance issued by the Indian Government provides for the use of a form for the process of registration, and an ‘undertaking in writing by the parents’ that the child does not hold the passport of another country.
What the parents could not provide:
- Evidence was adduced that the Indian consulates in the United Kingdom would require the production of documentation that C’s parents did not have, for example the father’s passport and their marriage certificate. Production of an Indian passport was required only for an Indian passport holder: The father claimed not to be one, because his passport had expired. It was observed however by the Court that there did not seem to be any good reason why he should not renew it if he needed to.
- The Court noted that there were possibilities for applying for registration as a citizen where a person born outside India comes to live in India while still a minor, and there are provisions for the backdating (if necessary) of the Central government permission. The Court stated there was no evidence before it of any actual difficulty in registering a child whom the parents wanted to register.
- The Court further stated that Indian law and practice as revealed from the evidence was that a child born to an Indian parent outside India has a right to Indian citizenship, which, if the child was born on or after 3 December 2004 is obtained by registration at the Indian consulate after fulfilling appropriate administrative procedures directed to identification of the child and the parents and their nationality. The child’s age has no impact on the process.
Meaning and effect of paragraph 3 of Schedule 2 to the 1981 Act:
Having considered the relevant statutory provisions and caselaw, the Court in MK concluded as follows:
- For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes.
- A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended.
- If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C’s birth had on the date of the decision under challenge not been registered, she is entitled to British Citizenship.
- C was entitled to registration as a British citizen on proof that she meets the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981. For these purposes she was or is ‘stateless’ at any time when she did or does not in fact have Indian nationality. The Secretary of State is entitled to require her to prove the relevant facts, but is not entitled to impose requirements that cannot, or practically cannot, be met.
Detailed analysis of MK can be found in a previous blog post:
- Wide-reaching judicial innovation: Stateless UK born child able to acquire Indian nationality found entitled to British citizenship
RELEVANT ZIMBABWE LAW AT A GLANCE
“Citizenship by birth
You are a citizen by birth if when you were born in Zimbabwe one of your parents was a Zimbabwean citizen or any of your grandparents was a Zimbabwean citizen by birth or descent.
You are also a citizen by birth even if you were born outside Zimbabwe if at the time of birth one of your parents was a Zimbabwean citizen and was ordinarily resident in Zimbabwe. If you have your child in the Diaspora and you can show that you or the other parent were ordinarily resident in Zimbabwe at the time of birth, then your child can be a Zimbabwean citizen by birth. There are certain advantages to being a citizen by birth, for example, the protection of dual citizenship.
Citizenship by descent
A person is a citizen by descent if he or she was born outside Zimbabwe and at least one of his or her parents or at least one of his or her grandparents was a Zimbabwean citizen by birth or descent.
If one of his or her parents was a Zimbabwean by registration and the person is born outside Zimbabwe, he will also be a citizen by descent.
However, in all cases, the birth of the child must be registered in accordance with the laws of Zimbabwe. In other words, you must get a Zimbabwean birth certificate. Most children born in the Diaspora are likely to fall into this category – as citizens by descent”-Manual on citizenship rights in Zimbabwe, 21 July 2016, https://www.bigsr.co.uk/single-post/2016/07/21/Manual-on-citizenship-rights-in-Zimbabwe
Zimbabwe- Child Registration Requirements:
Information on the Embassy of Zimbabwe to Britain and Ireland website states, http://www.zimlondon.gov.zw/index.php/consular-services/child-registration-requirements:
“Child registration requirements.
The following documents are required for Child Registration:
- The child’s UK/Irish long Birth Certificate;
- Both parents’ long Birth Certificates;
- Both parents’ Zimbabwean National Registration Cards (IDs) (Paper type, metal type or plastic type);
- Both parents’ Passports;
- Marriage Certificate (if applicable) and
- A fee of £25.00 (Twenty-Five Pounds Sterling) which should be paid in Cash or Postal Orders.
Also bring along photocopies of every original documents which are listed above. (For the old-type Passports, photocopy pages 1 to 5 and/or the last page for the new-type Passports).
When the forms have duly been completed, signed and processed, it is the applicant’s responsibility to send these to the Registrar General’s Office, Private Bag 7734, Causeway, Harare, for child registration and issuance of the Zimbabwean long Birth Certificate.
Single parents can process applications by submitting:
- The child’s UK/Irish long birth certificate
- The parent’s long birth certificate.
- The parent’s Zimbabwean National Identity Card(Paper type, metal type or plastic type).
- The parent’s passport”,
Zimbabwe -Requirements for application for a Zimbabwean passport:
Information on the Embassy of Zimbabwe to Britain and Ireland website states, http://www.zimlondon.gov.zw/index.php/consular-services/requirements-for-passport-application:
Requirements for application for a Zimbabwean passport
Please be advised that applicants need to COME in person and submit your application form because applicants need to have their fingerprints taken at the Embassy.
The following documents are required when submitting the application form:
- Original and photocopy of Zimbabwean Long Birth Certificate;
- Original and photocopy of National Identity Card (ID)(Paper type, metal type or plastic type), for those who turn 16. Kindly be advise that all Zimbabwean children who have turned 16 years of age are required to obtain Zimbabwe National Registration Cards (IDs), by law, before they can apply for Zimbabwe Passports. The registration cards can only be obtained by going to Zimbabwe to make the application in person.
- Marriage Certificate and photocopy, (for married women – ID should be in married name);
- Proof of Citizenship, if claiming citizenship in Zimbabwe by Descent, Registration or Naturalisation;
- Old/Expired Passport plus photocopy of bio-data page for new type passport or pages 1 to 5 for old-type Passport or letter from Home Office;
- A fee of £65 in Cash or Postal Order
Children below 18 years should be accompanied by either parents or Legal Guardian, with I.D card or valid Passport to sign Section 5 of the Passport form;
Parents and Legal Guardians of children below 18 years whose dependents are not resident in the United Kingdom need to sign Section 5 at the Embassy and send it to their dependents.
- 2 x colour photographs of 4.5cm long by 3.5cm wide dimensions, taken from a studio with a WHITE background and applicants should wear DARK coloured upper clothes.
- Consular Office is open between 09:00am and 12:30pm, Monday to Friday.
INFORMATION REGARDING PROCESSING OF PASSPORT APPLICATIONS
All passport applicants please take note of the following information:
Processing of passport application, including payment of processing fee is done in Zimbabwe. This procedure can either be done by the applicant when he/she travels to Zimbabwe or by a third party nominee residing in Zimbabwe who is a relative of the applicant.
It is the responsibility of the applicant to send the application form to Zimbabwe for processing.
Passport application forms can be processed at any nearest Passport Office in Zimbabwe. NB: all emergency passports (one day) are processed in Harare.
Passport processing fees to be paid at the Passport Office in Zimbabwe are:
US$250 for a passport that is processed in six weeks
US$315 for a passport that is processed in two weeks
US$50 for a passport that is processed in one day
A complete passport application form to be sent to Zimbabwe should consist of the following documents:
- the stamped passport application form (P1)
- certified copies of birth certificate, I.D. and relevant pages of the old passport; including the page affixed the visa sticker/ proof of residence
- stamped passport size photos
- original receipt issued by the Embassy (retain a copy)
- the letter authorising your nominee to submit the application and also collect the new passport once it is issued.
Once the new passport is ready for collection, the applicant is required to tender the old passport to the Embassy for cancellation and then fax copies of the cancelled passport to the nominee to enable him/her to collect the new passport”.
WHETHER THE MK PRINCIPLES POTENTIALLY APPLY TO ZIMBABWEAN CLAIMANTS
Having regard to the above, the parent(s) might not be able to provide the documentation that is required by the Zimbabwean authorities in order to enable the child’s registration and issuance of the Zimbabwean long Birth Certificate.
The parent(s) may not have brought their long Zimbabwean birth certificate to the UK when they left Zimbabwe nor their Zimbabwean national Registration Card. The Registration card might long have been misplaced. This registration card however can only be obtained by returning to Zimbabwe to make the application in person. The Home Office is known to retain passports for several years following unsuccessful applications: it is not apparent whether upon request, the Home Office would be in a position to release and return such a passport to the parent purely for the purposes of enabling the parent to present it to the Zimbabwean authorities in the circumstances in issue.
In MK, the Court made it clear that there was no evidence in that case from anybody being put forward as an expert in Indian nationality law. What the Court had were witness statements submitted by the Secretary of State setting out the experience of certain of her officers and the result of enquiries they had made. It was observed that crucial features of the statements were not the subject of any contrary evidence. The Court stated that it was entitled to take them into account, not as a comprehensive statement of the relevant Indian law, but as evidence of its operation as observed by the makers of the statements.
As regards Zimbabwean cases, it may be relevant to actually engage with an expert on Zimbabwean nationality law and obtain a report in order to buttress the arguments intended to be made in support of the application. That might determine whether it can be argued with confidence that the MK principles apply to Zimbabwean cases.
What is clear however is that the type of evidence that is required in these types of applications is set out below as required by the relevant Guidance. It may be that submission of a British registration application with the relevant required evidence, as well as accompanying submissions may suffice to enable forwarding of an application for consideration.
RELEVANT HOME OFFICE GUIDANCE
The applicable guidance is:
EVIDENCE REQUIRED TO ESTABLISH ENTITLEMENT
Applications under paragraphs 3 of schedule 2 of the British Nationality Act 1981 must be supported by the following evidence:
- the applicant’s birth certificate showing parents details
- that the applicant has been stateless from birth. For example, a letter from the authorities in the country in which he/she was born, stating that he/she is not, and never has been, a citizen of that country.
- If either of the applicant’s parents holds a non-British nationality, a letter from the authorities of the country concerned, saying that the applicant has never held that country’s citizenship or nationality.
- If the applicant has lived for a period of 5 years or more outside the United Kingdom, outside the territory where they were born and outside any country of which either of their parents is a citizen or national, a letter from the authorities of that country of residence saying the applicant has never held that country’s citizenship or nationality.
- If the applicant’s parents hold different non-British citizenships or nationalities, or either of them holds more than one citizenship or nationality, the applicant will need to get letters from all of the countries concerned. Similarly, if the applicant has resided for 5 years or more in more than one country, they will need to get letters of confirmation from all of the countries concerned.
- that the applicant has been in the United Kingdom or a British overseas territory for a period of 5 years entered in Section 2 of the application form. The applicant will be required to send any passports (including stateless persons travel documents) which cover the whole of the qualifying period. If the applicant cannot do this, they need to explain why and send as much as they can of the following, as applicable:
- letters from the applicant’s employers during the qualifying period
- letters from schools or other educational establishments which were attended during the qualifying period
- a letter from the HM Revenue & Customs National Insurance Contributions Office showing that the applicant has paid National Insurance contributions during the qualifying period, or an equivalent letter in the case of a British overseas territory
- P60 forms or a letter from the HM Revenue & Customs (or the equivalent in a British overseas territory) showing that the applicant has paid tax during the qualifying period
- any other documents which show that the applicant lived in the United Kingdom or the British overseas territories during the qualifying period.
The Home Office would expect evidence to be provided that a child is not a national of another country, in order to establish that the statutory requirements are met. If the parents have attempted to obtain that information, but claim they cannot obtain it, the Home Office caseworker must ask for the following evidence:
- that they have contacted the authorities of the other country to request confirmation that the child is not a citizen, such as a copy of the request, and evidence that they emailed or posted it, or made an appointment at the Embassy or High Commission
- a copy of the authorities’ response
- that they have complied with the requirements of that country, such as completing any specified form and providing any required documents
Where the parents have complied with the relevant requirements, but the authorities of the other country will not provide that information, the Home Office caseworker must consider the application on the basis of all the information available.
Applications under paragraph 3 of schedule 2 must also be supported by passports and other documents to establish:
- the persons 5 years residence in the UK or a British overseas territory prior to their application
- that the person was not absent from the UK or the British territories for more than 450 days for the 5 year qualifying period
Discretion regarding absences
Under paragraph 6 of schedule 2 of the British Nationality Act 1981, the Home Office decision maker can exercise discretion to allow absences of:
- more than 450 days if the application is made under paragraph 3 of schedule 2
The decision maker must normally waive excess absences under these provisions where:
- they are the result of circumstances beyond the person’s control such as serious illness or an accident which prevented them from returning to the UK
- they amount to no more than 30 days
- refusal would seriously disadvantage the person
Being stateless on its own is not enough for discretion to apply
The decision maker must not waive excess absences where:
- the individual or their parents were unaware of the requirements
- the absences were entirely voluntary
- a refusal would cause inconvenience, such as difficulty travelling, and not serious disadvantage
The Application Form for registration:
The relevant application form for registration as a British citizen as well as the accompanying Guidance is as follows:
- Application for registration as a British citizen, or a British overseas territories citizen by a stateless person born in the United Kingdom or a British overseas territory on or after 1 January 1983: form S3
- Guidance on registering a stateless person born in the UK or a British overseas territory on or after 1 January 1983 as a British citizen or a British overseas territories citizen using form S3
Once the applicant has completed and signed the application form and enclosed the documents, they must arrange to pay the correct fee. If they are paying by debit/credit card they should complete the payment slip attached to the fee leaflet– Fees for citizenship applications – GOV.UK
If the applicant is in England, Wales, Scotland or Northern Ireland they should send the application form with the fee and supporting documents to :
Department 1 UKVI
New Hall Place
Liverpool L3 9PP