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Adopted children: is there an entitlement to British citizenship?

28 May 2010

British Nationality law does distinguish between adopted and natural children in respect of their rights to UK citizenship. Section 2 (1) (a) of the British Nationality Act 1981 is as follows and applies to biological children only:

1) A person born outside the United Kingdom [and the qualifying territories] after commencement shall be a British citizen if at the time of the birth his father or mother—

(a) is a British citizen otherwise than by descent;

Adopted children are provided for under section 1 (5) and 1 (5A) of the British Nationality Act.  These subsections are as follows:

(5)Where—

(a)any court in the United Kingdom [or, on or after the appointed day, any court in a qualifying territory] makes an order authorising the adoption of a minor who is not a British citizen; or

(b)a minor who is not a British citizen is adopted under a Convention adoption,

that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be [effected under the law of a country or territory outside the United Kingdom].

(5A)Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—

(a)the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and

(b)in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom [or in a designated territory].]

The Convention referred to is the Hague Convention on the Protection of Children and Co-operation in Respect of Inter country Adoption of 1993. On 1 June 2003, the UK ratified the Convention.

Sub -section 1 (5) (b) of the British Nationality Act only applies to adoptions which happened AFTER the Convention came into force, and it will only result in the entitlement of  children adopted in countries  which are signatories to the Convention to automatic UK citizenship if the adoption happens after that date.

Furthermore, even if the Convention had predated the adoption, the conditions in subsection 5A also have to be met, which is that both adopters must be habitually resident in the UK (or in designated territory, such as the Falkland Islands).

For non-Convention adoptions, it must be a UK court which makes an order adopting a minor (subsection 1 (5) (a)). There is provision for children to register as British citizens under section 3 (1) of the British Nationality Act, which provides:

(1)If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.

Being a minor is the only pre-requisite therefore for applying for registration.  Whether or not the Secretary of State does or does not make such a person a British citizen is purely a matter of discretion. Factors which would normally be required to be shown in order for an application for registration to succeed.  Prominent among these is "that the child's future should clearly be seen to lie in the UK".

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