British Passport refused for an adopted child of EEA citizen

[Obie]

I am not sure how section 3(1) comes into this. TO all intent and purposes, this child is a British. A British citizen cannot be registered. A registration certificate for a person born a citizen is ultra vires and will have no standing in law, as the SSHD can only exercise her discretion, in regards to a person who is not a British citizen and does not meet the requirement for registration under any other category.

[JAJ]

Would the registration be valid if the child were born in the UK and had a British citizen parent (as defined by the act) at birth?

The registration would be a nullity. It's a difficult situation where the child is likely British already but cannot be proven absolutely. Sometimes registration simplifies out the situation (because even if the registration is null, it doesn't affect the child's British citizenship) but not in cases where it could have the effect of switching from British otherwise than by descent to British by descent.

Part of the problem in this case is that the Passport Office is being asked to make complex nationality determinations that it is not set up to do. It would likely be better for the Home Office to make the determination. If letters from the local authority, social workers were included with the application along with the child's original birth certificate they should be able to make a balance of probability determination that at least one of the child's parents was a British citizen/settled at the time of birth. The resulting Nationality Status Certificate is valid for life so the determination once made would likely never come up for review.

Pedantically, I believe natural parents who are not parents under the act are irrelevant to Section 3(1). The obvious example is children born to a British father by a woman married to someone else at the time.

That is correct.

[Gilraena]

Part of the problem in this case is that the Passport Office is being asked to make complex nationality determinations that it is not set up to do. It would likely be better for the Home Office to make the determination. If letters from the local authority, social workers were included with the application along with the child's original birth certificate they should be able to make a balance of probability determination that at least one of the child's parents was a British citizen/settled at the time of birth. The resulting Nationality Status Certificate is valid for life so the determination once made would likely never come up for review.

You're right that this case turned out to be more complex than we ever imagined. I do not want to blame the individual staff, but both the Passport Office and the Visa and Immigration office staff advised us in regards to what route to take and what documents to supply with the passport application.. The local authority through the whole adoption process did not even mention this could become an issue. I am not trying to play victim here, but it looks like there is a bigger problem with the level of training and knowledge of all agencies involved...
We will most likely try to go down the Nationality Status Certificate route, however that is going to take time. In your opinion, is there anything I should do to make our case a bit more public just to raise awareness (pretty sure we are not the only EEA couple in the whole UK who adopted a British child..) or shall I leave it until there is some sort of resolution?
Your advice has been invaluable

[ouflak1]

As a matter of law, a Person's citizenship is proven by the issuance of a passport.

This is not strictly true as there are people who may hold, for example, a British passport, and not be British citizens. Other countries have other laws in this regards, and passport are not an absolute 'proving' factor.

[Obie]

As a matter of law, a Person's citizenship is proven by the issuance of a passport.

This is not strictly true as there are people who may hold, for example, a British passport, and not be British citizens. Other countries have other laws in this regards, and passport are not an absolute 'proving' factor.

I don't think you have read my post properly, or appreciate in the context in which i made my statement.

It may help if your read it first.

May help if you read section 3(8) and 3(9) of the 1971 Act, and the authority i mentioned.

I makes no sense, to take a portion of my post, and make an out of context challenge against it.

[Gilraena]

It looks I' ve got my answer now...It appears section 67(1) of Adoption and Children Act 2002 is not applicable in relation to gaining the nationality, even if the biological child would have this right..
[quote]Miscellaneous enactments
(1)Section 67 does not apply for the purposes of—
(a)the table of kindred and affinity in Schedule 1 to the Marriage Act 1949 (c. 76),
(b)sections 10 and 11 of the Sexual Offences Act 1956 (c. 69) (incest), or
(c)section 54 of the Criminal Law Act 1977 (c. 45) (inciting a girl to commit incest).
(2)Section 67 does not apply for the purposes of any provision of—
(a)the British Nationality Act 1981 (c. 61),
(b)the Immigration Act 1971 (c. 77),
(c)any instrument having effect under an enactment within paragraph (a) or (b), or
(d)any other provision of the law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.

I still think this is a bit unfair towards the adopted children... Am I correct thinking that basically if the adopted parents were not able to prove their child's was British before the adoption (because of lack of evidence and difficulties in obtaining any) all children adopted by the Eea citizens with the PR will lose their British nationality?

[Gilraena]

Apologies, I should have put that the quote in my previous post if from the Adoption and Children Act 2002, section 74

[JAJ]

It looks I' ve got my answer now...It appears section 67(1) of Adoption and Children Act 2002 is not applicable in relation to gaining the nationality, even if the biological child would have this right..

...

I still think this is a bit unfair towards the adopted children... Am I correct thinking that basically if the adopted parents were not able to prove their child's was British before the adoption (because of lack of evidence and difficulties in obtaining any) all children adopted by the Eea citizens with the PR will lose their British nationality?

It's no different to any other British person who finds it impossible to trace records of parents/grandparents, has become estranged, name/identity changed without proper documentation etc. That's the reason the Nationality Status Certificate was introduced some years ago. The Passport Office need a higher standard of proof than is required under the law and don't necessarily have the resources to handle the more complex/unusual cases. Note that in the U.K. birth records are public information- so if you have details of where/when the parents were born you may be able to get hold of these directly. I think if you supply the evidence you have, plus supporting evidence from the local authority, it will allow the Home Office to conclude that on the balance of probability your child is British by birth and if so, they will issue a certificate to that effect. If you encounter unreasonable document requests it would be worthwhile to raise the issue with your Member of Parliament.

Assuming your child is issued a Nationality Status Certificate- keep it in a safe place permanently along with originals/copies of all the documentation used to obtain it and any correspondence. In addition- your child should always keep a valid British passport and expired passports should be retained.

[Obie]

To my understanding , there is in no law that confer on the passport office any different standard of proof than the civil standard, no different standard of proof exists for the passport office, other than the balance of probabilities.

That is the applicable law in the UK in the civil context.

It is also settle law, that the passport office cannot apply any higher evidential burden other than the civil standard.

[Gilraena]

Apologies Everyone, I still need to pick your brains, please (and rant...)
What have we done wrong?
Just received the phone call from the PO in regards our rejected application and apparently after thorough investigation the reasons for not issuing the British passport for our son were:
-he lost his British nationality because of adoption (the person I spoke with was not able to quote any legal framework to support this statement), so we can't send any evidence of him being British at birth as it won't be relevant anymore(!)
-he gained our nationality, so he can't have a British passport as we are not British (we are Polish)
When I asked about EEU treaty rights re the latter statement and why can't he claim the passport through the 2006 regulations, the answer was because we do not meet criteria as we have had no PR at the time of the adoption(!). When I challenged that the person said we don't have a British passport ourselves(!), cause that's what permanent residence means (!) and we were not settled at the time of the adoption (the order was granted two months ago).
Again, I said I had sent all the documents evidencing we have had settled status since 2011 (WRS card issued in 2006 and the subsequent certificates as I changed jobs few times during the first year, all P60 since 2009-2017, letters from Inland Revenue with my tax codes, for the years 2006-2008,passport, marriage certificate etc). The person (she was a senior manager...) said she had been working there for 18 years and she knows what PR means and we don't have it, because we did not go through naturalisation process (!!!!). She also said that we as parents won't be able to claim the British Nationality and appeared shocked when I said we did not want to apply for it at all...
I did ask to have it all in writing... Please tell me there is a way to appeal that! It's just so absurd, that I really don't know anymore... Thank you for reading

[Obie]

That is crazy. Get them to put it in writing, as this will assist you a lot.

They accepted the child was british, but in error, said he lost it as a result of the adoption.

It is clearly a question of law and not fact, as they have accepted the factual matrix, but the law is what they appeared to have got into muddle on.

Again passport office is like that, they really don't know what they are doing, you just have to coach them like a little child.

I made 3 passport for non-EEA parent with Permanent Residence right, but without a PR card. It was like i am having to repeat myself, in all 3 application, it is like i am having to teach civil servant who should know the law, and this is a policy team i am talking about and not the ordinary team.

[thsths]

That is absolutely shocking. How could somebody work in the passport office for 18 years and still not grasp the basic concepts for the EEA regulations? It seems to me that they are pretty much wrong in every point. I hope you have a reasonable record of the phone call, but I would also ask for a written refusal.

You could try to go through your MP is they are sympathetic, or talk to a solicitor about your legal options.

[Gilraena]

Thank you all, as always, your advice helped me get through the nightmare of the last few days...

That is crazy. Get them to put it in writing, as this will assist you a lot.

Again passport office is like that, they really don't know what they are doing, you just have to coach them like a little child.

I made 3 passport for non-EEA parent with Permanent Residence right, but without a PR card. It was like i am having to repeat myself, in all 3 application, it is like i am having to teach civil servant who should know the law, and this is a policy team i am talking about and not the ordinary team.

It felt exactly that! I was quoting legal acts and all that, and basically had to repeat the whole story all over again as if this person had no idea what my case was (in fact, she didn't), but they stated that they "had thoroughly investigated" our issue and the results are from an expert examiner... Seriously? I work the NHS, in the research dept, and if I ever was so incompetent in my job, I would probably face disciplinary action..
Anyway, I will get all that in writing, the implications are going to be massive as we have our child's local authority and adoption agency involved in this, hopefully their legal teams will be able to look into appealing this, if not I'll go through seeking legal representative myself...
Thanks again! I do apologise for being so dramatic and basically flooding this forum with our issue lol

[Ash0042]

For your adopted child to be recognised as your child and have all the legal rights as a biological child all legal ties, at the time of the adoption, will be severed with their birth parents.

Which is what we want as adopted parents... our adopted children to have the same legal rights as our biological. And there being no legal ties with the birth parents.

This may be the reason behind the PO advising why it was lost at adoption..

My adopted child lost their right to having her biological brother come to Australia on a sibling visa. All legal ties were severed at adoption. Legally i am her mother and he is not my son so therefore not her brother ...

Adoption is complex on many levels ...

[JAJ]

Apologies Everyone, I still need to pick your brains, please (and rant...)
What have we done wrong?
Just received the phone call from the PO in regards our rejected application and apparently after thorough investigation the reasons for not issuing the British passport for our son were:
-he lost his British nationality because of adoption (the person I spoke with was not able to quote any legal framework to support this statement), so we can't send any evidence of him being British at birth as it won't be relevant anymore(!)

He wasn't able to quote the legal framework because none exists- there is absolutely no basis in law for asserting that a British child loses British citizenship upon being adopted out to non-British parents. Ask for the clause of the British Nationality Act they are referring to?

-he gained our nationality, so he can't have a British passport as we are not British (we are Polish)

Whether or not he gained Polish citizenship as a result of adoption is 1. a matter of Polish law, so nothing to do with the (British) Passport Office or British government and 2. under British law, it doesn't matter whether or not he gained Polish citizenship from adoption- a British child still stays British upon being adopted out.

When I asked about EEU treaty rights re the latter statement and why can't he claim the passport through the 2006 regulations, the answer was because we do not meet criteria as we have had no PR at the time of the adoption(!). When I challenged that the person said we don't have a British passport ourselves(!), cause that's what permanent residence means (!) and we were not settled at the time of the adoption (the order was granted two months ago).
Again, I said I had sent all the documents evidencing we have had settled status since 2011 (WRS card issued in 2006 and the subsequent certificates as I changed jobs few times during the first year, all P60 since 2009-2017, letters from Inland Revenue with my tax codes, for the years 2006-2008,passport, marriage certificate etc). The person (she was a senior manager...) said she had been working there for 18 years and she knows what PR means and we don't have it, because we did not go through naturalisation process (!!!!). She also said that we as parents won't be able to claim the British Nationality and appeared shocked when I said we did not want to apply for it at all...
I did ask to have it all in writing... Please tell me there is a way to appeal that! It's just so absurd, that I really don't know anymore... Thank you for reading

EEA Treaty Rights are irrelevant in this case- best not to confuse the issues.

As you were previously advised, the best route is to apply for a Nationality Status Certificate with the Home Office. You will probably come across a higher standard of nationality expertise there. It's fairly clear from your post and that of others that the Passport Office don't understand the law very well and can have problems dealing with anything other than the simplest cases.

[maly205]

Hi
We are in very similar situation. We are both polish as well and we adopted British child. We haven't applied for British passport yet because we are still waiting for new birth certificate to come. After reading all those posts, yesterday I called the passport office. I explained our situation to person I was talking to and I was told that we can apply for passport for our child. I was explained by this person what documents we have to send with application. But now we are not sure if our application will be successful.

[Gilraena]

Hi
We are in very similar situation. We are both polish as well and we adopted British child. We haven't applied for British passport yet because we are still waiting for new birth certificate to come. After reading all those posts, yesterday I called the passport office. I explained our situation to person I was talking to and I was told that we can apply for passport for our child. I was explained by this person what documents we have to send with application. But now we are not sure if our application will be successful.

We had to ask for legal advice and luckily for us the adoption agency provided the support we needed (bit too late as they could have told us that before we had applied for passport)
Basically, as many people here pointed out, despite all the ridiculous reasons the PO provided for the rejection (in the previous post) we are still in position to apply for our son's British passport and we can do that without the need to go through the Home Office Confirmation of Nationality status (although we will do it anyway as to be on the safe side).
Ask your little one's local authority to get the birth parents birth certificates (if birth mum was born after 1983 then you also need her mother's birth certificate),if at all possible. Also, they could write a supporting letter stating they had known the child since birth and have the sufficient knowledge of the birth family to say they are British. When you apply do not go through the Eea treaty rights, as it will be rejected - it' s not common knowledge and even passport office staff are not clear on that as it appears the treaty rights do not apply to children adopted in our circumstances (neither does the British Nationality Act 1981). Basically, there is no legal paragraph that clearly regulates our cases, as it's only the Bna81 that is primary legislation regulating nationality status in the UK and it overrides other pieces of legislation when it comes to making decisions about someone's British nationality
Just apply on your child's behalf including the child's birth certificate -both old and new (adoption certificate), adoption order to show the change of the name and birth certificates of either birth mum and grandmother of just father if he was born before 1983. Double and triple check with the passport office before sending and make sure they have a record of that.
The lawyer looking into our case said that should be sufficient for the PO to grant the passport, but if not, they would need to justify it and it won't be easy for the PO to find solid justification (balance of probabilities is on our side in this case).
I'll try to post again once I've got a letter from the PO stating the reasons for refusal in writing (as I requested) and also after I talk to the lawyer again to make sure we have all clear to apply again.
Hope it makes sense!

[maly205]

It's all make sense. I have already investigated what we need to apply. We spoke today with our social worker. We asked her for birth mother birth certificate and supporting letter. She will speak to legal team about our situation. We still have to wait approx two weeks for new birth certificate before we apply. We have already started preparing all documents needed.

[Gilraena]

It's all make sense. I have already investigated what we need to apply. We spoke today with our social worker. We asked her for birth mother birth certificate and supporting letter. She will speak to legal team about our situation. We still have to wait approx two weeks for new birth certificate before we apply. We have already started preparing all documents needed.

Good luck! We are hopefully getting somewhere. Our Polish Embassy has been surprisingly helpful and they are going to issue a temporary passport for our son next week so at least we can fly to Poland. Once you have adoption certificate, please get more copies and if you want to, send it to Pl to be transcribed there (umiejscowienie). That way it'll be easier to apply for your little one's Polish ID card if anything goes wrong with the British passport (fingers crossed it won't).
We are going to apply for Confirmation of Nationality status letter anyway, as it looks like EEA applications are under special scrutiny and even having a British passport won't help. My EEA friends have just had their son's passport RENEWAL application suspended as passport office demanded them to send all documents to confirm they had permanent residence (despite getting all the docs five years earlier and issuing their son's passport with no problems then).

[maly205]

It's all make sense. I have already investigated what we need to apply. We spoke today with our social worker. We asked her for birth mother birth certificate and supporting letter. She will speak to legal team about our situation. We still have to wait approx two weeks for new birth certificate before we apply. We have already started preparing all documents needed.

Good luck! We are hopefully getting somewhere. Our Polish Embassy has been surprisingly helpful and they are going to issue a temporary passport for our son next week so at least we can fly to Poland. Once you have adoption certificate, please get more copies and if you want to, send it to Pl to be transcribed there (umiejscowienie). That way it'll be easier to apply for your little one's Polish ID card if anything goes wrong with the British passport (fingers crossed it won't).
We are going to apply for Confirmation of Nationality status letter anyway, as it looks like EEA applications are under special scrutiny and even having a British passport won't help. My EEA friends have just had their son's passport RENEWAL application suspended as passport office demanded them to send all documents to confirm they had permanent residence (despite getting all the docs five years earlier and issuing their son's passport with no problems then).

It's strange. I spoke with Polish embassy on Monday and I was told that I need Polish birth certificate to apply for temporary passport. Do you have already Polish birth certificate or you show British one i Polish embassy?

[Gilraena]

[quote="

It's strange. I spoke with Polish embassy on Monday and I was told that I need Polish birth certificate to apply for temporary passport. Do you have already Polish birth certificate or you show British one i Polish embassy?[/quote]

Yes, we have one. While all this was going on we decided to send the British adoption certificate to PL and one of our family members took it to USC (Urząd Stanu Cywilnego) and got it transcribed there straight away and printed new Polish one. We had to translate ours by the sworn translator beforehand, but other than that it seemed pretty straightforward. You don't get PESEL though, but you can get it either when applying for passport or ID card automatically. The Embassy agreed to give us the temporary passport (you don't need PESEL for that) given the circumstances we are in, because we are so pushed for time.

[maly205]

Ok. Thanks

[areczkowski24]

Hello all, today my aplication form for British passport for adopted child been refused by passport officer .
Me n my husband are Polish we adopted british child witch been birt in British family.
If anyone had same situation and know what to do please reply for this post. Thanks

[JAJ]

I think the advice is the same as what has been discussed already- whatever evidence you have of the child's birth place and British citizenship/settled status of the natural parents, you need to get a Certificate of British Nationality Status letter for the child. Use form NS:
https://www.gov.uk/government/publicati ... us-form-ns

With this document, you can get the child a British passport.

You may also want to obtain for the child Polish citizenship/passport.

[areczkowski24]

Thank you for reply
I know we can apply for NS for our adopted son but I not agree why my adopted son lose british citizens because of adoption process. Also NS form is same fee for it over £900 why I have to pay for if I my son come from full british family his birth mother and father ate british citizens.