British citizenship by descent

[Juliano]

I know this post is kind of related to a previous post of mine, but I decided to create this new one because the situation has now changed, and the question is more about citizenship than immigration.

John and Mary met in England about 3 years ago. John is a British citizen (not by descent), and Mary is a Brazilian citizen. They got married in Brazil about 4 months ago. Mary was granted entry clearance as the spouse of John, and they came back to the UK.

Mary has a 12-year-old child who has always lived in Brazil. Mary never got married to the biological father of her child. The biological father was and is Brazilian. They separated after a couple of years. The father didn’t want to have anything to do with the child, so the child was registered as the child of a single mother, i.e. no father on the birth certificate.

When John and Mary were in Brazil for their wedding about 4 months ago, they decided to go to the registry office and include John in the child’s birth certificate, i.e. now the birth certificate shows John as the father. Apparently, this is perfectly legal in Brazilian law – i.e. any man can go to the registry office with the mother of the child, say that he is the father and ask to be added to the birth certificate (as long as the mother is in agreement).

The question now is: is the child now a British citizen by descent?

The law says that if you were born outside the UK and either of your parents were a BC other than by descent at the time of your birth, you are a BC by descent. In this particular case, John (now the father on the birth certificate) was a BC at the time of the child ‘s birth. However, he was not the biological father of the child.

We have heard different opinions about this case, and it has been quite difficult and stressful for the people involved. Some people have suggested the child should be brought to the UK to join his mother because now she has a spouse visa (i.e. via immigration rules). Some have suggested that the child is already a British citizen, and that we just need to apply for a British passport now. I've decided to read some of the law, but I cannot find answers directed related to this particular case.

I know some of you guys here love Immigration and probably know the law very well. What do you think of this particular case? I would really like to hear some of your opinions. I’d like to point out that I’m not an immigration advisor. I am a friend of the people concerned, and that’s the reason I’m interested in this case.

Cheers

J

[avjones]

I think you need to know more about the Brazilian law, about what adding a name (not the biological father's) means there.

[Juliano]

Hi Amanda and thanks for your input.

If a man's name is added to the birth certificate as being the father of child, he becomes the legal father of the child. The birth certificate is re-issued with the father's name. The only difference is the date at the bottom of the certificate which is not the same date when it was issued for the first time. There is no comment about the man not being the biological father, or that his name has been added at a later date.

A lot of women in Brazil register their children without a father. The space on the birth certificate where the father's name should be written is either left blank or says 'father unknown'. If at a later date the father decides to be added to the birth certificate (or is legally forced to do it), his name is just added to the certificate. Also, there are cases where a man (e.g. the mother's new partner/husband) decides to add his name to the certificate because they want to assume responsibility for the child even though they are not the real father. This was the case of John and Mary.

My understanding of the law is that for a child to be a BC by descent either parent need to be a BC at the time of the child's birth. John is legally the father of the child and he was a BC when the child was born. It is true that when the child was born, they were not married, but the subsequent marriage has legitimized the child (children born on or after 1 Jan 83 and before 1 July 2006).

Would the UKBA respect John's decision to become the father of the child, and accept him as the father and therefore the child as a BC by descent?

[avjones]

I have no idea, sorry!

At the time of the child's birth, he didn't have a parent who was a British Citizen.

This would need specialist research and advice.

[Juliano]

Yes, Amanda. I know. It seems like this is not a simple case.

Again, thank you very much for your input.

J

[avjones]

You need someone who knows the general law and knows what and where to look up the rest. You are unlikely to find it for free on a forum, to be honest. It would take me a few hours to do it.

[JAJ]

I know this post is kind of related to a previous post of mine, but I decided to create this new one because the situation has now changed, and the question is more about citizenship than immigration.

John and Mary met in England about 3 years ago. John is a British citizen (not by descent), and Mary is a Brazilian citizen. They got married in Brazil about 4 months ago. Mary was granted entry clearance as the spouse of John, and they came back to the UK.

Mary has a 12-year-old child who has always lived in Brazil. Mary never got married to the biological father of her child. The biological father was and is Brazilian. They separated after a couple of years. The father didn’t want to have anything to do with the child, so the child was registered as the child of a single mother, i.e. no father on the birth certificate.

When John and Mary were in Brazil for their wedding about 4 months ago, they decided to go to the registry office and include John in the child’s birth certificate, i.e. now the birth certificate shows John as the father. Apparently, this is perfectly legal in Brazilian law – i.e. any man can go to the registry office with the mother of the child, say that he is the father and ask to be added to the birth certificate (as long as the mother is in agreement).

The question now is: is the child now a British citizen by descent?

The law says that if you were born outside the UK and either of your parents were a BC other than by descent at the time of your birth, you are a BC by descent. In this particular case, John (now the father on the birth certificate) was a BC at the time of the child ‘s birth. However, he was not the biological father of the child.

We have heard different opinions about this case, and it has been quite difficult and stressful for the people involved. Some people have suggested the child should be brought to the UK to join his mother because now she has a spouse visa (i.e. via immigration rules). Some have suggested that the child is already a British citizen, and that we just need to apply for a British passport now. I've decided to read some of the law, but I cannot find answers directed related to this particular case.

I know some of you guys here love Immigration and probably know the law very well. What do you think of this particular case? I would really like to hear some of your opinions. I’d like to point out that I’m not an immigration advisor. I am a friend of the people concerned, and that’s the reason I’m interested in this case.

Cheers

J

You need to find a good immigration lawyer to work through this one, however I would be of the view that the mere re-registration of the birth does NOT make John a "parent" for the purposes of the British Nationality Act 1981.

http://www.ukba.homeoffice.gov.uk/sitec ... ichapter6/

See Annex F, section 24.

I'll also point out that if by some chance they managed to "fool" the British Embassy into giving the child a British passport, the child still would not be British. The passport would be invalid and could be revoked anytime.

If they are serious about getting British citizenship for the child then look at the proper options, either adopting the child or alternatively sponsoring the child into the UK on a settlement visa and then (either way) getting the child registered as a British citizen in due course.