British Nationality (Hong Kong): Registration of minors born outside the UK

Before Hong Kong return to China’s sovereignty, the UK government passed the British Nationality (Hong Kong) Act 1990, which allowed the Secretary of State to register as British citizens persons recommended to him for that purpose by the Governor of Hong Kong. The persons who obtained nationality through that Act were granted status of British citizens, while their spouses and children were granted the status of British citizens by descent.

Children born outside the United Kingdom to British citizens otherwise than by descent, are automatically entitled to British nationality by descent and can pursue a British passport without the need for any previous application for citizenship.

Children born outside the United Kingdom to British citizens by descent might be entitled to British nationality, nevertheless are required to apply for registration to confirm their entitlement. For children born outside the UK, the first step is to consider whether the person has an entitlement under section 3(5) of the British Nationality Act 1981, which gives British citizenship otherwise than by descent. If no entitlement arises from there, the next step is to consider whether there is an entitlement under section 3(2). Finally, if no entitlement exists, consideration must be drawn to an application under section 3(1).

1. Children born to British citizens who have resided in the United Kingdom

The requirements for a child to be entitled to registration as a British citizen under section 3(5) are:

• They were born outside the UK;
• At the time of the birth, they had a parent who was a British citizen by descent;
• They are under the age of 18 when the application is made;
• The child and both of their parents were in the UK at the beginning of the 3 year period ending with the date of the application;
• The child and both of their parents have not been absent from the UK for more than 270 days in that 3 year period;
• The consent of both parents is given to the application;
• children aged 10 or over on the date of application are of good character.

2. Children born to British citizen whose parents have resided in the United Kingdom

The requirements for a child to be entitled to registration as British citizens under section 3(2) are:

• They were born outside the UK;
• Either parent (the parent in question) was a British citizen by descent at the time of the child’s birth
• The mother or father of the parent in question (the child’s grandparent) became or but for their death would have become, a British citizen otherwise than by descent either on 1 January 1983 or at the time of the parent’s birth;
• The parent in question must have lived in the UK for a continuous period of 3 years at any time before the child’s birth;
• The parent in question must have been in the UK at the beginning of that 3-year period;
• The parent in question must not have been absent from the UK for more than 270 days in that 3-year period;
• The child must also be of good character if over the age of 10.

3. The law in relation to section 3(1)

Registration under section 3(1) is more complex and relies entirely on the Secretary of State’s discretion. The Home Secretary may exercise their discretion to register people as British citizens under section 3(1) of the British Nationality Act 1981 if:

• the applicant is under 18 at the date of the application
• if aged 10 years or over on the date of application the applicant is of good character see good character requirements
• they think fit to register them

These are the only statutory requirements. It is possible to register a child under circumstances that would normally lead to the refusal of an application if this is justified in the particular circumstances of any case.

Equally, if there is good reason to do so, it is possible to refuse to register a child under circumstances that would usually lead to the grant of an application. In particular, the Home Secretary may refuse to grant a certificate where it would not be in the public interest to grant citizenship. This could be for reasons relating to their actions, behaviour, personal circumstances or associations such as family relationships.

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