We frequently assist parents with the immigration and nationality matters which arise when children are born following international surrogacy arrangements. The majority of our clients are British citizens, though we also assist parents of other nationalities and with differing immigration status.

With British citizen parents, the child is sometimes born a British citizen. This is the case where the surrogate mother is unmarried and (one of) the intended parent(s) is a British citizen “otherwise than by descent” and is the biological father of the child.

In other circumstances, the child is not born British and we frequently apply to register those children as British citizens under section 3(1) of the British Nationality Act 1981 (though there are other nationality and immigration law solutions available). These registration applications are discretionary but the Home Office will, in our experience, always register a child as British if the situation fits within the Home Office’s own guidance.

In the past, one source of frustration with the guidance was the requirements for registration applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. The guidance used to require an order from a court in the jurisdiction in which the child was born stating that the British citizen was treated in law as the child’s parent. The Home Office had confirmed that such orders needed to be issued post-birth. It was unclear how strict the Home Office were in applying this, but in order for parents bring themselves within the guidance, they needed to obtain such a post-birth order. This could delay matters and increase costs.

We had asked the Home Office on previous occasions to remove the requirement but it remained. Our most recent request, though, has met with success. The Home Office has now removed the requirement for a post-birth order in these cases. The guidance now states that the application needs to include: –

• a legal document confirming that (s)he has been recognised as the child’s mother/father within the jurisdiction of the child’s birth, such as a court order or being named on the birth certificate and
• evidence that the surrogate mother consented to the arrangement after the birth (this is not needed if a post-birth order has been obtained) – this should be dated at least 6 weeks after the birth

The guidance no longer requires a court order – a birth certificate is sufficient – and this is a welcome change.

The only negative to the new guidance is that the surrogate mother’s consent has to be signed after six weeks. This is the position when applying for parental orders through the Family Courts, but it has not been requested before in British Citizenship registration applications. However, the possible delay this could cause has been alleviated by the Home Office agreeing that such consents can be sent on later to be added to an application. Therefore, when applying on this basis, the application can be submitted as soon as it is ready and the six-week consent sent later.

We stress that this guidance relates to applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. There is no requirement for the consent to be signed after six weeks when registering on the basis of a British citizen biological father.

This may appear a small change but it will reduce the amount of time some parents need to remain abroad. Families are usually very keen to return to the UK as soon as possible so any reduction in delay is very welcome.

 

Barry O’Leary is the author of the ‘International Surrogacy and British Nationality and Immigration Law chapter in “Surrogacy: Law, Practice and Policy in England and Wales.”

Described as “the Rolls-Royce of immigration and asylum,” Barry O’Leary is highly valued for his successes with family, partnership, international surrogacy and sexual identity cases. An interviewee says: “He’s a very experienced solicitor who does fantastic work across the board.” – Chambers 2020

“Barry O’Leary is experienced in applications based on partnership and family and in relation to international surrogacy arrangements, while he also handles asylum and human rights claims based on sexual identity.” – Legal 500 2020

 

10 May 2018 sees the official launch of the LexisNexis publication ‘Surrogacy, Law, Practice and Policy in England and Wales’ . The book is an essential guide for those advising on surrogacy law.

The book is edited by Ruth Cabeza of Field Court Chambers and she has been ably assisted by fellow barristers from her chambers and Lillian Odze of the Cafcass High Court Team.

I am the author of the chapter ‘International Surrogacy and British Nationality and Immigration Law’.

The book is an important step towards informing both advisors and parents as to the British nationality and immigration law issues that arise in international surrogacy cases. Given the restriction on commercial surrogacy arrangements in the UK, UK-based commissioning parents frequently enter into international surrogacy agreements which lead to the birth of their children abroad. The birth of a child outside the UK inevitably leads to questions concerning British nationality and immigration law.

The fact that there is any nationality or immigration issue at all can come as something of a shock to many commissioning parents. Those who are British from birth have often not come into contact with the British nationality and immigration system before and understandably assume that their child will be born British whatever the circumstances.

Furthermore, British nationality law will often be at odds with the law in which the child will be born. In that country, the British commissioning parents may be the legal parents at the date of birth and named on the birth certificate. This does not mean that they will be the parents for the purposes of British nationality law.

Commissioning parents are well-advised to consider the immigration and nationality matters in advance. Ideally, they should take immigration and nationality law advice before entering into the surrogacy agreement. That said, there is an immigration and nationality law solution to most situations and parents who obtain advice during the pregnancy can usually prepare in time for the birth. We can, of course, also give initial advice after the birth but parents are well-advised not to leave obtaining advice until then.

In my chapter, I have set out the different circumstances that can arise and the immigration and nationality law solutions. The aim is to have these issues more widely known. Of course, we remain happy to advise parents on their particular case.